     Case: 11-20451   Document: 00511887863    Page: 1   Date Filed: 06/15/2012




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

                                                                    FILED
                                                                   June 15, 2012

                                  No. 11-20451                     Lyle W. Cayce
                                                                        Clerk

DEBORAH FIRMAN,

                                            Plaintiff - Appellee
v.

LIFE INSURANCE COMPANY OF NORTH AMERICA,

                                            Defendant - Appellant



                  Appeal from the United States District Court
                       for the Southern District of Texas


Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
        In this ERISA case, the Life Insurance Company of North America (LINA)
appeals the decision of the district court holding that LINA abused its discretion
in its denial of benefits to the appellee, Deborah Firman. We have carefully
reviewed the district court’s opinion, heard oral arguments, and considered the
arguments in the parties’ briefs; and we are convinced that the district court
correctly applied the law to the relevant facts and reached the appropriate legal
conclusions. We emphasize the district court’s holding that the common law
definition of “accident” adopted in Todd v. AIG Life Insurance Co., 47 F.3d 1448,
1456 (5th Cir. 1995), is controlling in all ERISA accidental death and
dismemberment plans where the term “accident” is undefined, irrespective of
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                                  No. 11-20451

whether the plan administrator is given discretion to interpret the plan. See
generally, Stamp v. Metro. Life Ins. Co., 531 F.3d 84, 89 (1st Cir. 2008) (applying
an ERISA common law definition to the term “accident,” when the plan
administrator is given discretion to interpret the plan). We therefore adopt the
clear and well-reasoned opinion of the district court, a copy of which we attach
hereto, as the opinion of this Court.
                                                                     AFFIRMED.




                                        2
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                                  No. 11-20451
                      IN THE UNITED STATES DISTRICT COURT
                      FOR THE SOUTHERN DISTRICT OF TEXAS
                               HOUSTON DIVISION


DEBORAH FIRMAN,                          §
                                         §
        Plaintiff,                       §
                                         §
v.                                       §     CIVIL ACTION NO. H-09-3785
                                         §
BECON CONSTRUCTION COMPANY,          §
INC., BECON PERSONAL ACCIDENT            §
INSURANCE PLAN/502,1 and                 §
LIFE INSURANCE COMPANY OF                §
NORTH AMERICA,                           §
                                         §
        Defendants.                      §



                             MEMORANDUM AND ORDER



        Pending are Defendants’ Motion for Summary Judgment (Document

No. 23) and the Cross Motion for Summary Judgment of Plaintiff

Deborah Firman (Document No. 53).              After having considered the

motions, responses, the applicable law, and the administrative

record, the Court concludes as follows.


                                I.   Background

       1
       Plaintiff originally named Becon Group Life and Insurance Plans
054 & 052, and the correct name is hereby substituted. See Footnote 3
below.
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                                    No. 11-20451


     Plaintiff          Deborah    Firman    claims,       pursuant     to    ERISA

§ 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), that Defendant Life

Insurance Company of North America (“LINA”)2 wrongly denied her the

benefits of her common-law husband’s ERISA-governed Group Accident

Policies.       Her husband, Gilberto Espinoza, an employee of Houston-

based       Defendant    Becon    Construction     Company,     Inc.    (“Becon”),

participated in two accidental death and dismemberment policies

under the Becon Personal Accident Insurance Plan/502 (the “Plan”)3:

Group Accident Policy OK 826455 issued to Becon by LINA and LINA

Voluntary       Personal     Accident   Insurance   Group     Policy    OK   822833

(together, the “Policies”),4 both of which named Plaintiff as the

beneficiary.5        Becon was the ERISA Plan sponsor and administrator

under the plan,6 but designated LINA as the claims administrator,7


     2
          LINA is a CIGNA company; hence, some portions of the
administrative record refer to LINA as CIGNA, or contain CIGNA headers.
See Document No. 23 at 8, Document No. 48 at 7. Because the parties do
not treat CIGNA as separate from LINA, the Court for simplicity will use
only the initials LINA.
     3
        Defendants assert, and Plaintiff does not contest, that the
defendant Plan was improperly named in the Complaint as “Becon Group Life
Insurance Plan 052” and that Becon Group Life Insurance Plan 054 was
named in error. See Document No. 23 at 1.
     4
       Document No. 1 at 3 (Orig. Cmplt.); Document No. 23, ex. A at 55,
71, 246-296 [hereinafter “Admin. Record”].
        5
            Admin. Record at 172-73.
     6
            Id. at 55, 71.
     7
            Id. at 40, 68.

                                         4
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                                           No. 11-20451
and both policies conferred upon LINA “full discretionary authority

to administer and interpret” both policies.8

        Both Policies state that benefits will be paid for “loss from

bodily injuries . . . caused by an accident which happens while an

insured is covered by this policy.”9                      Neither policy, however,

contains a definition of the term “accident.”


A.      Insured’s Death


        Espinoza           died   in   a   single-vehicle   crash   in   Kentucky        on

September 20, 2008.               His blood and urine alcohol content were 0.20

percent and 0.35 percent, respectively, at the time of his death,10

and the investigating officer reported a “strong odor of alcohol”

and “an open container of cold Budlight Beer inside the vehicle”

upon his arrival.11               According to the officer’s report, Espinoza’s

truck veered off the roadway to the right upon entering a left

curve; Espinoza overcorrected, sending the truck over the road onto

the left shoulder, where it rolled over.12 Espinoza was not wearing

a seat belt, and he was partially ejected out of the passenger-side


        8
       Id. at 54, 71. It is uncontested that the Plan’s Summary Plan
Description confers discretion upon LINA. See Document No. 1 at 7 (Orig.
Cmplt.); Document No. 23 at 4 (LINA).
        9
             Admin. Record at 242, 279.
        10
             Id. at 181, 222.
        11
             Id. at 217.
        12
             Id.

                                                5
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                                  No. 11-20451
window and crushed by the vehicle.13             The crash occurred shortly

after noon in clear weather and dry road conditions.14             The medical

examiner who performed Espinoza’s autopsy opined that the cause of

death was “[m]ultiple blunt force injuries,” and marked the death

as an “Accident,”15 which was also reflected on Espinoza’s death

certificate.16


B.      LINA’s Investigation and Denial of Benefits


        Plaintiff made a claim for benefits under the Policies, which

LINA received on December 4, 2008.17 It reviewed Plaintiff’s claim,

Espinoza’s death certificate, the police report, the toxicology

report, the medical report, and the Policies, then on December 23,

2008, informed Plaintiff that the claim was not covered because it

was not an “accident.”18            LINA interpreted “accident” in the

Policies to mean “a sudden, unforeseeable event,”19 and stated that

Espinoza “would have been aware of the risks involved in operating

his vehicle while under the influence” because “every state in the


        13
             Id. at 115, 217.
        14
             Id. at 216.
        15
             Id. at 229.
        16
             Id. at 232.
        17
             Id. at 230.
        18
             Id. at 207-08
        19
             Id. at 208.

                                        6
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                               No. 11-20451
nation    has   criminalized   drunk   driving,”        and   therefore    “[a]ll

licensed motorists throughout the United States are on notice, by

operation of law, of the state-declared prohibitions against drunk

driving and its consequences.”20           The letter stated that Espinoza

had an “alcohol level of 0.35%,” which it asserted was “more than

four times the maximum level of alcohol in which it is legal to

operate a motor vehicle in the state of Kentucky.”21                      Because

Espinoza “would have been aware of the risks involved in operating

his vehicle while under the influence, his death was a foreseeable

result of his actions and thus not an accident.”22

     LINA also relied upon the “self-inflicted injury” exclusion in

the Policies as a reason for denial.           It noted that, by drinking

and driving, Espinoza “placed his life and the lives of others in

jeopardy” because “[i]t is commonly known that driving while

intoxicated may result in death or bodily harm, as intoxication can

lead to impaired judgment and decreased reflexes.”23              His death was




     20
          Id. at 208-09.
     21
        Id. at 208.     The toxicology report reviewed at this stage
apparently contained only Espinoza’s urine alcohol content, 0.35 percent,
but not his blood alcohol content, which was 0.20. See id. at 222; cf.
id. at 181. LINA therefore erroneously compared Espinoza’s urine alcohol
content to Kentucky’s blood alcohol limit.
     22
          Id. at 209.
     23
          Id.

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                                  No. 11-20451
therefore “a result of intentionally self-inflicted injuries,” and

was excluded by the Policies.24

C.      Plaintiff’s Appeal


        Plaintiff retained counsel and appealed LINA’s decision in

January 2009.25       Her letter of appeal also advised LINA to consider

it “as notice of her claim to pursue litigation, damages, statutory

penalties, and attorney fees if this claim is not immediately

resolved.”26        Her counsel pointed out that LINA’s denial letter

improperly compared Espinoza’s urine alcohol content to Kentucky’s

legal blood alcohol limit for driving under the influence,27 and

subsequently        submitted    additional    information     consisting         of

affidavits of the investigating officer and medical examiner.28

        The investigating officer asserted that he believed the curve

on the road was dangerous for someone not familiar with the area,

noting that he had investigated numerous accidents at the site.29

He further stated that, based on his investigation, there was no

evidence that Espinoza intentionally caused the accident, knew it



        24
             Id.
        25
             Id. at 160.
        26
             Id. at 161.
        27
             Id.
        28
             Id. at 112-115, 122-23.
        29
             Id. at 114-115.

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                               No. 11-20451
would occur, or reasonably could have anticipated his death.30             The

medical examiner similarly found no evidence that Espinoza intended

his death, nor that he reasonably could have anticipated it,

because “‘driving under the influence’ does not naturally and

probably lead to the type of injuries” that resulted in his death.31

     Plaintiff’s counsel also submitted Texas and Kentucky state

case law interpreting accidental death insurance policies in the

context of alcohol-related automobile crashes, concluding that

under the law of either state, Espinoza’s crash would be considered

an “accident” under the Policies.32

     In response to these submissions, LINA informed Plaintiff that

it was conducting a “home office review,” which was “needed in

order to interpret the documents we have received as they relate to

the provision of this policy.”33     The claims administrator assigned

to the appeal forwarded Plaintiff’s contentions to LINA’s in-house

counsel,34 who responded with a five-page memo labeled “PRIVILEGED

& CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION.”35           The memo opined

that Plaintiff’s relied-upon state law would be inapplicable to the

     30
          Id. at 115.
     31
          Id. at 122.
     32
          Id. at 103-06.
     33
          Id. at 101.
     34
          Id. at 75-76.
     35
          Id. at 300 (emphasis in original).

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                                    No. 11-20451
interpretation of an ERISA policy governed exclusively by federal

law: “The standard that claimant advances - one of natural and

probable consequences - is not the standard utilized by federal

courts applying the common law of ERISA.”36                It then noted the

absence of Fifth Circuit authority regarding “whether an ERISA

insured’s death that occurs while driving when intoxicated is an

accident in the context of [an] accidental death benefit plan,” and

looked to decisions by the Fourth, Sixth, and Seventh Circuit

Courts of Appeal as authority that, if LINA had discretion to make

determinations under the Plan, it would not abuse that discretion

by concluding that Espinoza’s death was not an “accident” because

“a reasonable person would foresee the likelihood of death or

serious injury as a result of driving while intoxicated.”37                   The

memo    also     stated   that   the   officer’s   and    medical    examiner’s

affidavits were not persuasive, because they were based not “on the

facts of the incident, but on their personal view of whether it was

natural and probable that Mr. Espinoza could not reasonably have

foreseen his death.”38

       LINA issued a letter to Plaintiff denying her appeal because:



       36
            Id. at 302.
       37
        Id. at 302-04 (citing and discussing Lennon v. Metro. Life Ins.
Co., 504 F.3d 617 (6th Cir. 2007); Eckelberry v. ReliaStar Life Ins. Co.,
469 F.3d 340 (4th Cir. 2006); Cozzie v. Metro. Life Ins. Co., 140 F.3d
1104 (7th Cir. 1998)).
       38
            Admin. Record at 302.

                                        10
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                                No. 11-20451

     Injury or death resulting from driving under the
     influence of alcohol is considered foreseeable and is not
     covered by the provisions of [the Policies]. Driving
     when intoxicated precludes a finding that a death is
     Accidental. As mentioned previously, the policy defini-
     tion of a Covered Accident requires that a loss not be
     foreseeable.39


In the letter, LINA again erroneously stated that Espinoza’s “blood

alcohol concentration was 0.35%,” which it again asserted was “more

than four times the threshold for presumed intoxication while

driving in the state of Kentucky.”40       Finally, the letter advised

Plaintiff that she had exhausted all levels of administrative

appeal.41

     Pending are cross-motions for summary judgment.              Plaintiff

asserts that LINA abused its discretion in denying her benefits,

and further asserts that its denial was procedurally improper due

to LINA’s failure to disclose its in-house counsel’s memo sooner.

Defendants seek dismissal of all claims.


                          II.   Legal Standards


A.   Summary Judgment Standard




     39
          Id. at 98.
     40
          Id.
     41
          Id. at 99.

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                                No. 11-20451
     Rule 56(c) provides that summary judgment “should be rendered

if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.”       FED. R. CIV. P. 56(c).42     The moving party must

“demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986).

     Once the movant carries this burden, the burden shifts to the

nonmovant to show that summary judgment should not be granted.

Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th

Cir. 1998).        A party opposing a properly supported motion for

summary judgment may not rest upon mere allegations or denials in

a pleading, and unsubstantiated assertions that a fact issue exists

will not suffice.       Id.    “[T]he nonmoving party must set forth

specific   facts     showing   the   existence   of    a   ‘genuine’     issue

concerning every essential component of its case.”            Id.

     In considering a motion for summary judgment, the district

court must view the evidence “through the prism of the substantive

evidentiary burden.”      Anderson v. Liberty Lobby, Inc., 106 S. Ct.

     42
         Rule 56 was amended effective December 1, 2010 to state, in
relevant part, that “[t]he court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c) (effective Dec. 1, 2010). While Defendants’ motion was filed prior
to the effective date of the new Rule 56, Plaintiff filed her motion
after the amendments.    Nonetheless, the amendments are meant only to
“make the procedures more consistent with those already used in many
courts,” and “[t]he standard for granting summary judgment remains
unchanged.” Id., cmt. 2010 Amendments.

                                     12
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                               No. 11-20451
2505, 2513 (1986). All justifiable inferences to be drawn from the

underlying facts must be viewed in the light most favorable to the

nonmoving party.      Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 106 S. Ct. 1348, 1356 (1986).          “If the record, viewed in

this light, could not lead a rational trier of fact to find” for

the nonmovant, then summary judgment is proper.              Kelley v. Price-

Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993).             On the other

hand, if “the factfinder could reasonably find in [the nonmovant’s]

favor, then summary judgment is improper.”        Id.    Even if the stan-

dards of Rule 56 are met, a court has discretion to deny a motion

for summary judgment if it believes that “the better course would

be to proceed to a full trial.”      Anderson, 106 S. Ct. at 2513.


B.   ERISA Standard of Review


     ERISA confers jurisdiction on federal courts to review benefit

determinations by fiduciaries or plan administrators.                 See 29

U.S.C. § 1132(a)(1)(B).       A plan claims administrator makes two

general   decisions    when    deciding    whether      to    pay   benefits:

(1) finding the facts underlying the claim and (2) determining

“whether those facts constitute a claim to be honored under the

terms of the plan.”      Schadler v. Anthem Life Ins. Co., 147 F.3d

388, 394 (5th Cir. 1998) (quoting Pierre v. Conn. Gen. Life Ins.

Co./Life Ins. Co. of N. Am., 932 F.2d 1552, 1557 (5th Cir. 1991))

(emphasis in original).       The administrator’s first decision, its


                                    13
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                                   No. 11-20451
fact finding, is always reviewed for abuse of discretion.                  Wade v.

Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d

533,    537    (5th   Cir.   2007).      The      second    determination,      the

administrator’s interpretation of the plan, is typically reviewed

de novo, “[b]ut where, as here, a plan expressly confers discretion

on   the     plan   administrator to    construe      the   plan’s    terms,    the

administrator’s construction is reviewed for abuse of discretion.”

Id. at 537-38 (internal footnote omitted); see also Firestone Tire

& Rubber Co. v. Bruch, 109 S. Ct. 948, 956-57 (1989).                 Because the

parties agree that the Plan’s Summary Plan Description conferred

discretionary authority upon LINA,43 both of its determinations are

appropriately reviewed for an abuse of discretion.

       When     reviewing    the    administrator’s         second     decision--

interpretation and application of the plan language--for an abuse

of discretion, the Fifth Circuit applies a two-step inquiry. Stone

v. UNOCAL Termination Allowance Plan, 570 F.3d 252, 257 (5th Cir.

2009).       First, the court examines whether the determination was

legally correct; if so, there can be no abuse of discretion.                    Id.

If not legally correct, then the court proceeds to step two to

decide whether the determination was an abuse of discretion.                    Id.

       An abuse of discretion occurs when “the decision is not based

on evidence, even if disputable, that clearly supports the basis

for its denial.”        Holland v. Int’l Paper Co. Retirement Plan, 576


       43
            See supra n.7.

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                                  No. 11-20451
F.3d 240,     246   (5th   Cir.   2009)    (internal     quotation   marks    and

citation omitted).         Such an abuse occurs “only where the plan

administrator acted arbitrarily or capriciously,” and a decision is

arbitrary when it is made “without a rational connection between

the known facts and the decision or between the found facts and the

evidence.”     Id. (citing Meditrust Fin. Servs. Corp. v. Sterling

Chems., Inc., 168 F.3d 211, 214-15 (5th Cir. 1999)) (internal

quotation marks omitted).         The decision need only “fall somewhere

on a continuum of reasonableness--even if on the low end.”                  Corry

v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir.

2007) (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287,

297 (5th Cir. 1999) (en banc), abrogated on other grounds by Metro.

Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008)).                  “Although we

generally decide abuse of discretion based upon the information

known to the administrator at the time he made the decision, the

administrator can abuse his discretion if he fails to obtain the

necessary information.”       Salley v. E.I. DuPont de Nemours & Co.,

966 F.2d 1011, 1015 (5th Cir. 1992).

     In this case LINA operates under a conflict of interest; it is

uncontested both that LINA has discretionary authority to make

claims decisions and that it is responsible for paying benefits

under the Plan.44     See Glenn, 128 S. Ct. at 2348 (2008).             Although

the presence of a conflict is not determinative, and does not


     44
          See Document No. 48 at 5.

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                               No. 11-20451
permit converting the “abuse of discretion” review into a more

onerous standard of review, it is properly considered as a factor

in the overall analysis of LINA’s denial of benefits.            See Glenn,

128 S. Ct. at 2350-52 (2008); Holland, 576 F.3d at 247-48 n.3.45


                            III.    Discussion


       For support of LINA’s denial of benefits, Defendants rely on

Sanchez v. Life Insurance Co. of North America and Davis v. Life

Insurance Co. of North America, two unpublished Fifth Circuit

decisions upholding LINA’s denial of benefits where the insureds

died    in   single-car   crashes   when   driving    while   intoxicated.

Sanchez, 393 F. App’x 229 (5th Cir. 2010) (unpublished op.); Davis,

379 F. App’x 393 (5th Cir. 2010) (unpublished op.).              In both of

those cases, however, LINA’s policies each defined “accident” as

“[a] sudden, unforeseeable, external event.” Sanchez, 393 F. App’x

at 233; Davis, 379 F. App’x at 395-96.        In sharp contrast to those

cases, neither of the Policies nor the Plan in this case contains

either that definition or any other definition of “accident.”

Thus, this case requires consideration of a similar but distinctly

different question, namely, whether LINA abused its discretion in

determining that Espinoza’s death was not an “accident” under a


       45
        Plaintiff points to eight other cases where LINA has denied
benefits, and asserts that it has obtained a potential gain of $2,867,000
from those denials and the denial presently at issue.          Plaintiff,
however, fails to point to any evidence that LINA’s conflicts in the
prior cases influenced LINA’s benefit decisions.

                                     16
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                                 No. 11-20451
policy written by LINA without inclusion of any definition of the

term “accident.”

     While neither Accident Policy defines “accident,” the Policies

do exclude coverage for injuries from certain activities.                     These

include:


     •      Intentionally self-inflicted injuries
     •      Travel or flight if the insured is a pilot or crew
            member
     •      Hang-gliding
     •      Parachuting (except for self-preservation), and
     •      Commission of a felony by the insured.46


Neither    Policy   excludes   coverage      for     injury    when   driving    an

automobile while intoxicated.47

     LINA in its claim administration used essentially the same

definition    for   “accident”    that      is   written    into    some   of   its

accidental death policies--such as those in Sanchez and Davis--but

which is not found in Espinoza’s Policies, namely “a sudden,




     46
          Admin. Record at 244, 281.
     47
          The Sixth Circuit in a case similar to this stated the obvious:

            The solution for insurance companies . . . is simple:
            add an express exclusion in policies covering accidental
            injuries for driving while under the influence of
            alcohol, or for any other risky activity that the
            company wishes to exclude. Policyholders would thus be
            able to form reasonable expectations about what type of
            coverage they are purchasing without having to make
            sense of conflicting bodies of caselaw that deal with
            obscure issues of contractual interpretation.

Kovach v. Zurich American Ins. Co., 587 F.3d 323, 338 (6th Cir. 2009).

                                       17
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                                    No. 11-20451
unforeseeable event.”48         Because Espinoza “would have been aware of

the risks       involved   in   operating     his   vehicle   while    under   the

influence, his death was a foreseeable result of his actions and

thus not an accident.”49          LINA denied Plaintiff’s appeal for the

same    reason,    and    further   because    “[d]riving     when    intoxicated

precludes a finding that a death is Accidental.”50              In making that

decision, LINA gave a legally incorrect definition to the term

“accident” and, moreover, abused its discretion by applying a per

se rule that death resulting from driving while intoxicated is

never an accident, despite the absence of a policy exclusion so

stating.


A.     Legally Incorrect Interpretation


       Three factors bear upon whether an interpretation is legally

correct: “(1) whether the administrator has given the plan a

uniform construction, (2) whether the interpretation is consistent

with a fair reading of the plan, and (3) any unanticipated costs

resulting from different interpretations of the plan.”                 Stone, 570

F.3d at 258 (quoting Crowell v. Shell Oil Co., 541 F.3d 295, 312




       48
            Admin. Record at 208.
       49
            Id. at 209.
       50
            Id. at 98.

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                                 No. 11-20451
(5th Cir. 2008)).51        The “most important” of these factors “is

whether the administrator’s interpretation was consistent with a

fair reading of the plan.”        Id. (citing Crowell, 541 F.3d at 313).

     Although      LINA   has   consistently    interpreted   its    accident

policies--whether or not they define “accident”--to exclude from

coverage drunk driving deaths,52 its consistency does not save its

interpretation in this case because it is not a fair reading of

Espinoza’s Policies in which “accident” is not a defined term.

LINA’s interpretation of the term “accident,” in fact, is wholly

inconsistent with the definition given that term by federal common

law in the Fifth Circuit.

     Writing for the Fifth Circuit in Todd v. AIG Life Insurance

Co., Justice Byron White held that it was appropriate for the

district court to conclude that:


     [F]or death under an accidental death policy to be deemed
     an accident, it must be determined (1) that the deceased
     had a subjective expectation of survival, and (2) that
     such expectation was objectively reasonable, which it is
     if death is not substantially certain to result from the
     insured’s conduct.




     51
         As neither party presents substantive argument on the third
factor, it will not be addressed. See id. at 258 n.4.
     52
        See, e.g., Sanchez, 393 F. App’x at 230-31; Davis, 379 F. App’x
at 394-95; Moore v. Life Ins. Co. of N. Am., 708 F. Supp. 2d 597, 609-10
(N.D.W. Va. 2010); Danouvong ex rel. Estate of Danouvong v. Life Ins. Co.
of N. Am., 659 F. Supp. 2d 318, 324-25 (D. Conn. 2009); McGillivray v.
Life Ins. Co. of N. Am., 519 F. Supp. 2d 157, 162-63 (D. Mass. 2007).

                                      19
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                                 No. 11-20451
47 F.3d 1448, 1456 (5th Cir. 1995).             The Fifth Circuit has also

phrased the test in an alternative manner: “whether a reasonable

person, with background and characteristics similar to the insured,

would have viewed the injury as highly likely to occur as a result

of the insured’s intentional conduct.”            Schadler v. Anthem Life

Ins. Co. 147 F.3d 388, 397 n.10 (5th Cir. 1998) (quoting Wickman v.

Nw. Nat’l Ins. Co., 908 F.2d 1077, 1088 (1st Cir. 1990)).                      Both

cases demonstrate the Fifth Circuit’s acceptance of the Wickman

standard, as Judge Sarah Vance observed in her analysis of the

circuit’s precedents in Carter v. Sun Life Assur. Co., No. 05-2214,

2006 WL 1328821, at *6, *5-6 (E.D. La. May 11, 2006) (“[W]hile the

Fifth   Circuit    has   never   squarely    applied     all       three    Wickman

determinations to the same case, the Wickman approach is followed

in this circuit and is the standard by which an administrator’s

determination is to be measured.”).

     The   Wickman   analysis     requires      that    for    a    death    to   be

considered “accidental,” the insured must have had the subjective

expectation of survival, and that expectation must have been

objectively   reasonable    “from    the    perspective       of    the    insured,

allowing the insured a great deal of latitude and taking into

account the insured’s personal characteristics and experiences.”

908 F.2d at 1088.         In the more typical case where there is

insufficient evidence of the insured’s actual expectations, a

purely objective analysis is undertaken as “a good proxy for actual


                                     20
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                                   No. 11-20451
expectation”: the death is not an accident if “a reasonable person,

with background and characteristics similar to the insured, would

have viewed the injury as highly likely to occur as a result of the

insured’s intentional conduct.”           Id.

      LINA’s interpretation eschews the Wickman approach to defining

accident, and is therefore legally incorrect.                    In Wickman, the

starting point was the actual expectation of the insured, limited

only by excluding “patently unreasonable” expectations from the

definition of “accident,” which equates to situations where death

or serious injury is “highly likely.”             This compares favorably to

the   dictionary      definition    of   “accident”:       “an   unforeseen    and

unplanned   event      or   circumstance,”      or   “lack   of    intention    or

necessity.”        WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY at 49 (1990).

LINA’s interpretation, on the other hand, does not focus the

inquiry on what is actually expected or foreseen by the insured,

tempered only by patently unreasonable expectations, but rather, on

what is foreseeable--that is, capable of being foreseen.                 Further,

it does not ground this interpretation in the alternative objective

analysis of Wickman, asking from the perspective of the insured

whether death or serious injury is “highly likely” to occur, not

merely asking whether death or serious injury is “foreseeable.” In

short, LINA’s interpretation of “accident” excludes from its bounds

not just the “patently unreasonable” expectation, Wickman, 908 F.2d

at 1087, but anything that is merely “foreseeable.” This goes well


                                         21
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                               No. 11-20451
beyond the limited exception to an insured’s actual expectations

(or a “proxy” thereof) established by Wickman and followed by the

Fifth Circuit in Todd and Schadler.53           Indeed, there is much

persuasive authority pointing to a variety of examples that are

commonly considered “accidents” but which would be excluded from




     53
        See Todd, 47 F.3d at 1456 (noting the inapplicability of cases
cited by the plan administrator to support its interpretation of
“accident,” because “[u]nder those cases, however, it need be only
foreseeable that death ‘could’ result, not that death was ‘highly
likely.’”); see also LaAsmar v. Phelps Dodge Corp. Life, Accidental Death
& Dismemberment and Dependent Life Ins. Plan, 605 F.3d 789, 809 (10th
Cir. 2010) (under de novo review, rejecting the plan administrator’s
proposed interpretation of “accident” as excluding a “reasonably
foreseeable” injury because, in part, Wickman “did not apply a reasonable
foreseeability test, but instead asked whether the injuries or loss at
issue was ‘highly likely to occur’”); Kovach v. Zurich Am. Ins. Co., 587
F.3d 323, 336-37 (6th Cir. 2009) (noting “the varying interpretations of
the word ‘accidental’” adopted by district courts in the Sixth Circuit
alternately referencing the “reasonably foreseeable” and “highly likely”
standards, and adopting the “key holding” in Wickman--requiring an
inquiry into “whether a reasonable person, with background and
characteristics similar to the insured, would have viewed the injury as
highly likely to occur as a result of the insured’s intentional conduct”
to determine whether or not the injury was an “accident”); King v.
Hartford Life and Accident Ins. Co., 414 F.3d 994, 1002, 1003-04 (8th
Cir. 2005) (en banc) (remanding benefits decision to administrator
because the “reasonably foreseeable” standard applied in its denial
letter was not the same as the Wickman standard that it “consistently
. . . maintained in litigation” was the proper way to interpret
“accident”); see also Loberg v. Cigna Group Ins., No. 8:09CV280, 2011 WL
612059, at *6 (D. Neb. Feb. 10, 2011) (noting that King “makes clear that
a distinction between the two standards (at least in the Eighth Circuit)
exists”); McGillivray, 519 F. Supp. 2d at 165 (same); Carter, 2006 WL
1328821, at *6 (finding “unreasonable and legally incorrect” the plan
administrator’s interpretation of “accident” to exclude coverage when
injury or death is “reasonably foreseeable and . . . the natural and
probable result” of the insured’s conduct, because the difference between
that standard and Wickman “is material”).

                                    22
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                                No. 11-20451
being so regarded if events that are merely “foreseeable” or

“reasonably foreseeable” were not considered “accidents.”54

     Furthermore,     LINA’s    interpretation        runs    contrary   to   the

provisions of the Policies, which specifically pay an additional

10 percent of the insured’s benefits if he or she “dies as a

result of an automobile accident while wearing a properly fastened,

original,     factory-installed        seatbelt.”55          It   is   certainly

“foreseeable”      that   one    not     wearing      a   seatbelt--such       as

Espinoza--may die in a car crash, which, by LINA’s definition,

would by itself render that person’s death not an “accident.” Yet,

the Policies specifically provide for additional coverage for an

insured who dies while wearing a seatbelt, implying that one who

does not wear a seatbelt is covered at the basic amount.                      See

LaAsmar, 605 F.3d at 807 (“To some degree, the language of the Plan

at issue here providing for the possibility of additional benefits

if the insured chose to wear a seat belt suggests that an insured’s


     54
        See, e.g., Kovach, 587 F.3d at 335-36 (crash resulting from
driving while text messaging or driving while fatigued); Lennon v. Metro.
Life Ins. Co., 504 F.3d 617, 630 (6th Cir. 2007) (Clay, J., dissenting)
(crash after driving “another hour” on a cross-country trip “after an 18
hour day behind the wheel,” or while driving 89 miles per hour in a 70
mph zone, or death or serious injury when bungee jumping); King, 414 F.3d
at 1008 (Bright, J., concurring) (falling after standing on a shaky stool
to reach something on a high shelf, electrocution of a lineman working
atop an electricity pole, a car crash resulting from speeding one’s
pregnant wife to the hospital); Sanchez v. Life Ins. Co. of N. Am., 704
F. Supp. 2d 587, 596 n.18 (W.D. Tex. 2009) (injuries resulting from
standing on a ladder, driving an automobile, playing basketball);
Danouvong, 659 F. Supp. 2d at 328 & n.6 (crash when driving a car).
     55
          Admin. Record at 37, 66.

                                       23
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                                 No. 11-20451
failure to take precautions against obvious dangers would not

preclude AD & D benefits under this policy.”).

     In sum, LINA made a legally incorrect determination of the

undefined term “accident” as it is used in the Accident Policies

and Plan that covered Espinoza.


B.   Abuse of Discretion


     LINA also abused its discretion in denying benefits under the

Accident Policies without sufficient evidence in the administrative

record to support its determination and by its application of what

effectively is a per se rule that drunk driving deaths can never be

an “accident” under a policy that contains no exclusion for drunk

driving.

     Unlike the instant case, Sanchez and Davis involved evidence

supporting LINA’s decision in addition to the insured’s blood

alcohol content.       In Davis, the administrative record contained a

toxicologist’s findings; the Fifth Circuit therefore held that

LINA’s      determination       was    reasonable        “[c]onsidering       the

toxicologist’s       findings   as    to    the   effects    of   such    severe

intoxication.” Davis, 379 F. App’x at 396. Similarly, in Sanchez,

the administrative record contained eyewitness accounts that the

insured’s vehicle “swerved sharply in the road” before rolling

over; a forensic consultant’s opinion that a person with the

insured’s    blood    alcohol    content     would   have   “‘poor    judgment,


                                       24
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                                  No. 11-20451
increased reaction time, muscle incoordination, loss of visual

acuity, [ ] increased risk taking’ and be unable to drive safely”;

and the consultant’s citation to “volumes of references regarding

the   effects      of   alcohol    producing     impairment     regardless     of

tolerance.”     Sanchez, 393 F. App’x at 233.56

      Here, on the other hand, the administrative record is entirely

devoid of any evidence--other than Espinoza’s blood alcohol content

as compared to the legal limit in Kentucky--regarding whether the

crash was foreseeable.57          In fact, LINA erroneously garbled even

this single piece of evidence: rather than comparing Espinoza’s

blood alcohol content to Kentucky’s legal limit, LINA cited his

urine alcohol concentration and compared it to Kentucky’s legal



      56
        Even this evidence offered only weak support of LINA’s case in
Sanchez. The Fifth Circuit noted that this constituted a “lesser amount”
of evidence “on the issue of whether or not a crash in these
circumstances was an ‘unforeseeable’ event” relative to the evidence on
causation of the crash, and also stated that “[a]dditional evidence
regarding the foreseeability of a fatal crash resulting from driving
under the influence would have strengthened LINA’s decision.” Id. at 233
& n.3.
      57
         Defendants request that the Court take judicial notice of a
“‘Kentucky Safety Facts” tip sheet promulgated by the Kentucky Office of
Highway Safety on its official website,” which is a “public record.”
Document No. 44 at 7. The “Safety Facts” tip sheet on a web site is not
a part of the administrative record, and does not fall within the limited
exceptions for evidence not within the administrative record that may be
considered when reviewing a plan administrator’s denial of benefits. See
Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999)
(en banc), abrogated on other grounds by Metropolitan Life Ins. Co. v.
Glenn, 128 S. Ct. 2343 (2008) (noting the limited exceptions permitting
evidence outside the administrative record: evidence “related to either
interpreting the plan,” such as “how an administrator has interpreted the
terms of the plan in other instances,” and evidence “explaining medical
terms and procedures relating to the claim”).

                                       25
  Case: 11-20451     Document: 00511887863      Page: 26    Date Filed: 06/15/2012



                                  No. 11-20451
limit for blood alcohol concentration. LINA repeated this error in

its   appeal     denial      letter,    after    Plaintiff’s       attorney      had

specifically pointed out LINA’s error in its first denial letter.

Moreover, instead of considering any other facts specific to the

case, LINA effectively adopted a stance that a crash resulting from

any   blood    alcohol    content      over   the   legal    limit    is   per   se

foreseeable, and therefore per se not an “accident.” For instance,

its internal notes reveal that LINA presumed Espinoza’s awareness

of the dangers of drunk driving (and therefore the foreseeability

of his own death resulting therefrom) unless something in the

administrative record indicated otherwise:


      There is nothing in file to support fact that Mr.
      Espinoza was not aware of the risks involved in operating
      his vehicle while intoxicated. Therefore, his death was
      a foreseeable result of his actions and thus not an
      accident.58


As already observed, LINA’s initial denial letter cited only to

Espinoza’s urine alcohol content, and otherwise asserted that

“every state in the nation has criminalized drunk driving,” which

therefore put “[a]ll licensed motorists throughout the United

States . . . on notice, by operation of law, of the state-declared

prohibitions       against    drunk    driving      and    its   consequences.”59




      58
           Admin. Record at 76.
      59
           Id. at 209.

                                        26
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                                 No. 11-20451
Finally, LINA’s denial of Plaintiff’s appeal flatly states the per

se rule it applied in this case:


     Having reviewed the available record, indications are
     that Mr. Espinoza was driving under the influence of
     alcohol at the time of this motor vehicle crash. This
     resulted in his death. Injury or death resulting from
     driving under the influence of alcohol is considered
     foreseeable and is not covered by the provisions of [the
     Policies]. Driving when intoxicated precludes a finding
     that a death is Accidental.60


     No    circuit    court   considering    drunk      driving   crashes    has

approved a claims administrator’s use of a per se rule in the

context of ERISA accidental death policies.             To the contrary, the

courts consistently have expressed disapprobation for the use of

such a rule.       See LaAsmar v. Phelps Dodge Corp. Life, Accidental

Death & Dismemberment and Dependent Life Ins. Plan, 605 F.3d 789,

802 (10th Cir. 2010) (noting that “[c]ourts have consistently

rejected such a per se rule, as would we,” and collecting cases);

see also Stamp v. Metro. Life Ins. Co., 531 F.3d 84, 91 & n.9 (1st

Cir.), cert. denied, 129 S. Ct. 636 (2008) (rejecting “categorical

determination that all alcohol-related deaths are per se accidental

or nonaccidental” by noting that “we have been careful to explain

that the proper approach is fact-specific and that the decedent’s

degree of intoxication is particularly probative,” and further

reviewing the evidence relied upon by the administrator--including


     60
          Id. at 98 (emphasis added).

                                      27
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                                    No. 11-20451
an internal medical department report, online resources, and a

university police handbook--that constituted a “well-developed

record of the severe impairment that would be expected from Mr.

Stamp’s level of intoxication”); Lennon v. Metro. Life Ins. Co.,

504 F.3d 617, 619, 622, 624 (6th Cir. 2007) (noting that under the

particular facts, including the insured’s “extremely high blood-

alcohol content” of 0.321, the administrator reasonably determined

that the insured’s death was not an accident, but declining to

reach “the question of whether a fiduciary can reasonably deny

‘accidental’ benefits for injury that results from any negligent or

any   illegal      behavior,   or     from   driving      while   only    somewhat

impaired”);61 accord Eckelberry v. Reliastar Life Ins. Co., 469 F.3d

340, 345 (4th Cir. 2006); Cozzie v. Metro. Life Ins. Co., 140 F.3d

1104, 1106, 1110 (7th Cir. 1998).62


      61
         In a later case, the Sixth Circuit characterized the Lennon
majority as refusing “to impose a blanket standard allowing insurers to
consider injuries resulting from any wreck in which the driver is
intoxicated as nonaccidental.” Kovach v. Zurich Am. Ins. Co., 587 F.3d
323, 331 (6th Cir. 2009). Indeed, Kovach distinguished Lennon on its
facts, including the “most obvious disparity” between the degree of
intoxication (0.321 versus 0.148 blood alcohol content), and concluded
that the administrator abused its discretion. Id. at 331, 338.
      62
        District courts have followed the same reasoning. See, e.g.,
Danouvong, 659 F. Supp. 2d at 326 (holding that the plan administrator
abused its discretion where it “concluded that the crash was foreseeable
from the fact that Mr. Danouvong’s BAC was 0.26 percent and its ipse
dixit pronouncements, without citation either to the record or to
authority, that ‘[t]he hazards of driving while intoxicated are widely
known and publicized’ and that ‘[i]t is also well-known in the general
public that driving while intoxicated could result in bodily harm or
death’”); Loberg v. Cigna Group Ins., No. 8:09CV280, 2011 WL 612059, at
*7 (D. Neb. Feb. 10, 2011) (“Plan administrators may not utilize a
categorical rule that alcohol-related crashes are not accidents.”).

                                        28
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                                No. 11-20451
     The above cases are persuasive, particularly in light of the

Fifth Circuit’s instructions that “the administrator can abuse his

discretion if he fails to obtain the necessary information,”

Salley, 966 F.2d at 1015, and that an administrator abuses its

discretion if its “decision is not based on evidence, even if

disputable, that clearly supports the basis for its denial.”

Holland, 576 F.3d at 246 (internal quotation marks and citation

omitted).     Accordingly, LINA abused its discretion in determining

that Espinoza’s death was not an “accident.”


C.   Award


     For the foregoing reasons, Plaintiff is entitled to an award

of the Policies’ benefits due under the Plan, plus interest.63

Defendants have asked for remand to LINA for further review if the

Court     “determines   the   claims    decision   was     not   procedurally

correct.”64 That is not the Court’s decision; to the contrary, this

decision is based on LINA’s abuse of its discretion, not on

     63
         Although ERISA does not expressly provide for an award of
prejudgment interest to prevailing beneficiaries, it is within the
Court’s discretion to award prejudgment interest here because that remedy
is not precluded by ERISA and in fact furthers “the congressional
policies embodied in the act.” Hansen v. Cont’l Ins. Co., 940 F.2d 971,
984 n.11 (5th Cir. 1991); see also Roig v. Ltd. Long Term Disability
Program, No. CIV.A.99-2460, 2000 WL 1146522, at *15 (E.D. La. Aug. 4,
2000) (Vance, J.). An award of prejudgment interest is appropriate due
to Plaintiff’s loss of use of insurance proceeds to which she was
entitled, and also to encourage plan administrators to resolve disputes
quickly and fairly without recourse to litigation. See Roig, 2000 WL
1146522, at *15 (holding same).
     64
          Document No. 54 at 15.

                                       29
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                                  No. 11-20451
a procedural defect.        “If an administrator has made a decision

denying benefits when the record does not support such a denial,

the court may, upon finding an abuse of discretion on the part of

the administrator, award the amount due on the claim and attorneys’

fees.”     Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 302

(5th Cir. 1999) (en banc), abrogated on other grounds by Metro.

Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008).              While remand may

be justified in “some special circumstances,” the Fifth Circuit in

Vega “decline[d] to remand to the administrator to allow him to

make a more complete record” on whether the insured’s misrepre-

sentation in seeking coverage was “material,” where the record

already developed contained insufficient evidence to support a

conclusion of materiality.         Id. at 302 n.13.       The court sought “to

encourage each of the parties to make its record before the case

comes to federal court,” and also noted that “it would be unfair to

allow the administrator greater opportunity at making a record than

the claimant enjoys.”       Id.

       Because LINA twice had the opportunity directly to address the

only question at issue--whether Espinoza’s death was an “accident”

under the Policies--and because both times it applied a legally

incorrect definition to the undefined term “accident,” and further

made     decisions    without     sufficient     evidence    to   support     its

determination, remand is not appropriate.            Cf. Schadler v. Anthem

Life Ins., 147 F.3d 388, 398 (5th Cir. 1998) (holding that remand


                                       30
  Case: 11-20451   Document: 00511887863    Page: 31   Date Filed: 06/15/2012



                                No. 11-20451
was appropriate where the plan administrator’s denial was based

only upon the erroneous conclusion that the plaintiff was not

eligible for policy coverage; the administrator thus “never had

occasion to exercise any discretion to interpret the terms of the

Plan,” or to make a full development of relevant facts and a

decision thereon).

     However, Plaintiff has established entitlement to an award

only from the Plan, not from all named Defendants.            See 29 U.S.C.

§ 1132(d)(2) (“Any money judgment under this subchapter against an

employee benefit plan shall be enforceable only against the plan as

an entity and shall not be enforceable against any other person

unless    liability   against   such     person   is   established    in   his

individual capacity under this subchapter.”).           Plaintiff’s motion

will therefore be granted with respect to the Plan, but denied as

to all other defendants.65


     65
       See Williams v. Cent. Cartage Co., 149 F.3d 1173, 1998 WL 412984,
at *1 (5th Cir. 1998) (unpublished op.) (“In the absence of evidence of
a breach of fiduciary duty, a judgment for the amount of benefits denied
is against an employee benefit plan . . . .” (internal footnote
omitted)).   Although Plaintiff alludes to LINA’s alleged breach of
fiduciary duty in the context of arguing for greater weight to be given
to consideration of its conflict of interest, see Document No. 1 at 8,
Document No. 48 at 19, she has made no showing or argument regarding a
breach of fiduciary duty claim under ERISA, and indeed cannot in light
of her clear request for recovery of benefits wrongfully denied, a claim
under 29 U.S.C. § 1132(a)(1)(B). Document No. 1 at 8; see Rhorer v.
Raytheon Eng’rs and Constructors, Inc., 181 F.3d 634, 639 (5th Cir. 1999)
(“Accordingly, because § 1132(a)(1)(B) affords Rhorer an avenue for legal
redress, she may not simultaneously maintain her claim for breach of
fiduciary duty.” (citing and discussing Varity Corp. v. Howe, 116 S. Ct.
1065, 1077-79 (1996); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610-
11 (5th Cir. 1998))).


                                    31
  Case: 11-20451    Document: 00511887863      Page: 32   Date Filed: 06/15/2012



                                  No. 11-20451
     Remaining to be determined are whether attorney’s fees should

be awarded to Plaintiff under 29 U.S.C. § 1132(g)(1) and whatever

remaining cause of action, if any, Plaintiff may have against the

other Defendants Becon and LINA.


                                  IV.   Order


     Based on the foregoing, it is

     ORDERED that Defendants’ Motion for Summary Judgment (Document

No. 23) is DENIED.        It is further

     ORDERED that Plaintiff Debra Firman’s Cross-Motion for Summary

Judgment (Document No. 53) is GRANTED in part, and Plaintiff Debra

Firman shall have and recover of and from Defendant Becon Personal

Accident Insurance Plan/502 the benefits payable for the accidental

death    of    Gilberto   Espinoza   under   LINA    Group    Accident     Policy

OK 826455 and LINA Voluntary Personal Accident Insurance Group

Policy    OK    822833,   which   accidental     death    benefits   the    Court



      Further, although the Fifth Circuit has held that an employer was
properly named as a defendant (thereby implying the possibility of
recovery), it did so under the specific facts where the plan had “no
meaningful existence separate from [the employer] because the Voucher
Plan is funded by the general assets of the partnership,” and where “it
was indisputably [the employer’s] decision” to deny the plaintiffs’
benefits. Musmeci v. Schwegmann Giant Super Mkts., Inc., 332 F.3d 339,
350 (5th Cir. 2003). Plaintiff has made no such showing of intertwining
between any other defendant and the Plan, and therefore has failed to
show her entitlement to summary judgment against those other defendants.
Cf. Walker v. Kimberly-Clark Corp., No. 1:08CV146-SA-JAD, 2010 WL 611007,
at *7 (N.D. Miss. Feb. 17, 2010) (dismissing a defendant upon its motion
where the plaintiff “failed to bring forth any evidence that these
entities are so intertwined that the employer is the true party in
interest”).

                                        32
  Case: 11-20451   Document: 00511887863    Page: 33    Date Filed: 06/15/2012



                               No. 11-20451
understands from the pleadings total $210,000, plus pre-judgment

interest on these benefits from the dates they were due to be paid

until the date of Final Judgment.           Plaintiff’s Cross-Motion for

Summary Judgment is otherwise DENIED with respect to Defendants

Becon Construction Company, Inc., and Life Insurance Company of

North America.     It is further

     ORDERED that within fourteen (14) days after the entry of this

Order the parties shall jointly provide to the Court an agreed

calculation setting forth the amount of the benefits and the pre-

judgment interest due under this Order for inclusion in the Court’s

Final Judgment.     It is further

     ORDERED that within fourteen (14) days after the entry of this

Order the parties’ counsel shall personally confer in a good faith

attempt to reach agreement on whether Plaintiff is entitled to

recover attorney’s fees and expenses and, if so, to reach an

agreement upon the amount of reasonable and necessary attorney’s

fees and expenses that Plaintiff is entitled to recover, if any.

The parties shall promptly advise the Court of that agreement.                If

good faith efforts to reach agreement on attorney’s fees should

fail,   then   Plaintiff’s    attorney     may   file   his   affidavit     for

attorney’s fees and expenses and supporting material within twenty-

one (21) days after the date of this Order, together with a brief

showing   entitlement    to   the   same,   and   Defendant      may   file      a

controverting affidavit and supporting materials, and a brief


                                    33
 Case: 11-20451   Document: 00511887863    Page: 34   Date Filed: 06/15/2012



                                No. 11-20451
setting forth Defendant’s position, within ten (10) days after

having   been   served   with   Plaintiff’s    affidavit   and   supporting

materials.

     It is SO ORDERED.

     The Clerk will enter this Order, providing a correct copy to

all counsel of record.

     SIGNED in Houston, Texas, on this 15th day of April, 2011.




                                ____________________________________
                                         EWING WERLEIN, JR.
                                    UNITED STATES DISTRICT JUDGE




                                    34
