     Case: 09-31022     Document: 00511090097          Page: 1    Date Filed: 04/23/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            April 23, 2010

                                     No. 09-31022                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



WILLIAM O. SCALLION, JR.,

                                                   Plaintiff–Appellant,
v.

HARTFORD LIFE & ACCIDENT INSURANCE CO.,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:08-CV-2001


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        William Scallion appeals from the district court’s grant of summary
judgment in favor of Hartford Life and Accident Insurance Company (Hartford).
For the following reasons, we affirm.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-31022        Document: 00511090097         Page: 2       Date Filed: 04/23/2010

                                        No. 09-31022

                                               I
      Scallion sustained an injury to his left eye when it was accidentally
lacerated with a metal object.            He filed for disability benefits under two
accidental death and dismemberment policies—one issued by Hartford through
the AFL-CIO and another issued by Hartford through City Bank. The plan
issued by Hartford through the AFL-CIO is governed by the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., and
gives Hartford full discretionary authority to construe the terms of the plan.
Hartford denied benefits under both plans on the ground that Scallion’s vision
loss was not irrecoverable.          Scallion sued, and the district court granted
summary judgment in favor of Hartford as to its denial of benefits under both
policies.
                                              II
      We review the grant of a motion for summary judgment de novo, applying
the same standard as the district court.1 With regard to Scallion’s claim under
the City Bank plan, summary judgment is appropriate when the competent
summary judgment evidence demonstrates that there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.2
As to the ERISA-governed plan, because the plan gives Hartford discretionary
authority to construe its terms, we review Hartford’s denial of benefits under the
plan for abuse of discretion.3             But since Hartford was both the plan




      1
          Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998).
      2
          Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
      3
          See Cooper v. Hewlett-Packard Co., 592 F.3d 645, 651-52 (5th Cir. 2009).

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                                       No. 09-31022

administrator and the insurer, we review its decision with “a modicum less
deference than we otherwise would.”4
       Both plans provide dismemberment benefits only upon loss and define loss
with regard to sight as an “entire and irrecoverable loss thereof.” Hartford
determined that Scallion had not suffered an irrecoverable loss of sight based on
information provided by Dr. Nils Mungan, Scallion’s treating physician, that
Scallion’s sight was recoverable through a corneal transplant. Mungan similarly
testified in his deposition that Scallion’s vision could be regained through
surgery, and the district court relied on this evidence in granting summary
judgment for Hartford on Scallion’s claim under the City Bank plan.
       Scallion argues that the contract is ambiguous and that Hartford failed to
produce substantial evidence that his sight could be regained. Neither argument
has merit.     The contract states that the loss of sight must be “entire and
irrecoverable.” The term “irrecoverable” is unambiguous. This circuit and a
number of other courts have concluded that sight is recoverable if it may be
regained through surgery or other artificial means.5 Further, all of the evidence
in the administrative record and the district court record suggests that Scallion’s
sight could be recovered through surgery.               Accordingly, the district court
correctly concluded that Hartford did not abuse its discretion in denying Scallion
benefits under the AFL-CIO plan and that Hartford was entitled to summary
judgment on Scallion’s claim under the City Bank plan.




       4
        Cook Children’s Med. Ctr. v. New England PPO Plan of Gen. Consol. Mgmt., Inc., 491
F.3d 266, 272 (5th Cir. 2007) (internal quotation marks omitted).
       5
         See, e.g., Fairley v. Prudential Ins. Co. of Am., 40 F.3d 385, 1994 WL 652577, at *3
(5th Cir. 1994) (unpublished table decision); Rice v. Military Sales & Serv. Co., 621 F.2d 83,
87 (4th Cir. 1980); Wallace v. Ins. Co. of N. Am., 415 F.2d 542, 545 (6th Cir. 1969); Home Life
Ins. Co. of N.Y. v. Stewart, 114 F.2d 516, 518-19 (10th Cir. 1940).

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                               No. 09-31022

                           *        *         *
   For the foregoing reasons, the district court’s judgment is AFFIRMED.




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