                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-2493


SHERRI THOMAS,

                 Plaintiff - Appellant,

          v.

UNITED OF OMAHA LIFE INSURANCE COMPANY,

                 Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:12-cv-00973-PJM)


Submitted:   June 7, 2013                  Decided:   July 30, 2013


Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Gerald I. Holtz, LAW OFFICES OF GERALD I. HOLTZ, LLC, Rockville,
Maryland, for Appellant.      Jeaneen J. Johnson, Colleen K.
O'Brien, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Sherri         Thomas      (Plaintiff)         appeals   the    district     court’s

grant    of    summary       judgment     in   favor     of   United      of   Omaha    Life

Insurance Company (United of Omaha) with respect to her claim

for accidental death benefits under an insurance policy (the

Policy) issued by United of Omaha.                   We affirm.



                                               I.

     On February 12, 2010, Plaintiff’s husband, Duane Middleton

(Middleton), underwent a partial colonoscopy during which the

cecum of his colon was unintentionally perforated, resulting in

his death approximately seven hours later. *                    Plaintiff, the named

beneficiary under the Policy, subsequently filed a claim with

United    of    Omaha      for     $67,000.00       in   accidental       death   benefits

under the Policy.            The parties do not dispute that the Policy is

subject to the Employee Retirement Income Security Act of 1974

(ERISA), 29 U.S.C. § 1001 et seq.

     Under the section of the Policy entitled “ACCIDENTAL DEATH

AND DISMEMBERMENT BENEFITS,” the Policy provides that United of

Omaha    will       pay   the    “Loss    of   Life”     benefit     if    Middleton     was

“injured       as    a    result     of   an    Accident,      and     that    Injury    is


     *
       The colonoscopy was aborted prior to its completion due to
suboptimal bowel preparation by Middleton.



                                           - 2 -
independent of Sickness and all other causes . . . .”                               (J.A.

47).     In relevant part, the Policy specifically defines the term

“Accident” for purposes of this provision as:

       a sudden, unexpected and unintended event, independent
       of Sickness and all other causes.    Accident does not
       include Sickness, disease, bodily or mental infirmity
       or medical or surgical treatment thereof, bacterial or
       viral infection, regardless of how contracted.

(J.A. 47).

       Under the Policy, United of Omaha possesses “the discretion

to     determine    eligibility          for    benefits    and    to    construe      and

interpret all terms and provisions of the Policy.”                          (J.A. 87).

Moreover,    “[b]enefits          under    the    Policy   will    be    paid   only    if

[United of Omaha] decide[s], after exercising [its] discretion,

that the Insured Person is entitled to them,” and “[i]n making

any decision, [United of Omaha] may rely on the accuracy and

completeness of any information furnished by the Policyholder,

an Insured Person or any other third parties.”                     Id.

       The administrative record that United of Omaha had before

it in making its final decision regarding whether to pay or deny

Plaintiff’s        claim    for     accidental      death    benefits       under      the

Policy, included, inter alia:                  (1) the amended death certificate

for Plaintiff’s husband, issued by the State of Maryland; (2)

the Post Mortem Examination Report prepared by Assistant Medical

Examiner Victor Weedn, M.D., for the Office of the Chief Medical

Examiner    for     the    State    of    Maryland;    (3)   the    private     autopsy

                                           - 3 -
report prepared by Allen Burke, M.D.; (4) Middleton’s medical

records from the Montgomery Endoscopy Center where he underwent

the colonoscopy; and (5) the professional opinion of United of

Omaha’s     Medical    Director,     Thomas   Reeder,      M.D.,   regarding      the

cause of Middleton’s death, following his review of the claim

file.

      The    amended    death    certificate    for       Middleton   listed      the

manner of death as an accident and the cause of death as acute

peritonitis due to (or as a consequence of) perforation of the

cecum during a colonoscopy, with hepatitis C, cirrhosis of the

liver, hypertension, and chronic renal insufficiency as other

significant conditions contributing to his death.

      In the Post Mortem Examination Report prepared by Dr. Weedn

(Dr. Weedn’s Report), Dr. Weedn concludes that Middleton died of

acute   peritonitis      due    to   perforation     of    the    cecum   during    a

colonoscopy.      He further concludes that hepatitis C, cirrhosis

of the liver, hypertension, and chronic renal insufficiency also

contributed to Middleton’s death.              Of particular relevance to

the present appeal, Dr. Weedn’s Report states that Middleton, at

the time of his death, was on a liver transplant list, and that

he   underwent   the    colonoscopy      as   part    of    his    workup   for    an

anticipated liver transplant due to a family history of colon

cancer.     Dr. Weedn learned this information from his first-hand

review of Middleton’s medical records, including records from:

                                      - 4 -
(1) Shady Grove Adventist Hospital (emergency services); (2) Dr.

Mikhail     (primary       care    physician);    (3)     Dr.    David       Doman     (the

gastroenterologist who performed the colonoscopy at issue); (4)

Dr. Mark Sulkowski (infectious disease, internal medicine); and

(5)   Dr.    Alan    Kravitz       (surgeon).      According       to      Dr.     Weedn’s

Report,     “[t]he     manner      of   [Middleton’s]      death      is     ACCIDENT.”

(J.A. 134).

      In the private autopsy report prepared by Dr. Burke, Dr.

Burke   lists       Middleton’s      immediate    cause     of    death       as      cecal

perforation         with     submucosal       hemorrhage        and     early         acute

peritonitis.

      The    colonoscopy       procedure      report    prepared        by    Dr.     Doman

lists       “Screening\family           history    colon        cancer”          as     the

preoperative diagnosis.            (J.A. 114).

      After reviewing the medical documents in the claim file,

Dr.   Reeder,       United    of    Omaha’s     Medical    Director,         opined     as

follows in writing:

      This seems very straightforward.

      He underwent screening colonoscopy to look for colon
      pathology in preparation for liver transplantation.
      Bowel   preparation  was  poor   and  the   cecum  was
      perforated as a result of this medical/surgical
      procedure.   There was no evidence of underlying colon
      disease prior to the colonoscopy.      The perforation
      caused peritonitis, and he died of the resulting
      bacteria sepsis.

      The perforation did not aggravate his existing health
      condition.

                                         - 5 -
     His health condition did not aggravate the effect of
     the perforated cecum and peritonitis.

     Colon perforation is a known risk of colonoscopy and
     would have been noted in the consent form.

(J.A. 93).

     United    of   Omaha     denied     Plaintiff’s      claim   for   accidental

death benefits upon initial consideration of the claim and upon

administrative      appeal.         In    its     final    decision     letter    on

administrative      appeal,    United      of    Omaha    informed   Plaintiff    as

follows regarding its reasoning for denying her claim:

     Ms. Thomas, we understand that Dr. Weedn indicated
     that Mr. Middleton’s death was an accident and the
     death   certificate  was  amended   to  reflect  this.
     However, perforation is a known risk of a colonoscopy
     and therefore, the perforation is not an accident as
     defined under the [P]olicy.   Also, Mr. Middleton died
     of bacterial sepsis. Under the [P]olicy definition of
     accident it specifically states accident does not
     include bacterial or viral infection, regardless of
     how contracted.

     In summary, Mr. Middleton’s death was not a sudden,
     unexpected   or   unintended  event,    independent of
     sickness and all other causes.       Therefore, we are
     unable to provide benefits under the Accidental Death
     and Dismemberment portion of [the Policy].

(J.A. 102).

     Plaintiff originally brought this action in state court,

but United of Omaha removed it to federal court as an ERISA

case.    The   parties      cross    moved       for   summary    judgment.      The

district court granted summary judgment in favor of United of

Omaha.   This timely appeal followed.



                                         - 6 -
                                              II.

       In an appeal under ERISA, we review the district court’s

grant of summary judgment in favor of United of Omaha de novo,

applying       the    same     standards       governing           the     district       court’s

review    of    United       of    Omaha’s     decision           to    deny    Plaintiff     the

sought       after    accidental          death      benefits          under        the   Policy.

Williams v. Metropolitan Life Ins. Co., 609 F.3d 622, 629 (4th

Cir. 2010).          Because the Policy granted United of Omaha, as the

plan administrator, “the discretion to determine eligibility for

benefits and to construe and interpret all terms and provisions

of the Policy,” (J.A. 87), we review United of Omaha’s decision

to deny Plaintiff the sought after accidental death benefits for

abuse of discretion.              Williams, 609 F.3d at 629.

       The     law    in     the     Fourth      Circuit          is    well-settled        that,

“[u]nder the abuse-of-discretion standard, we will not disturb a

plan   administrator’s             decision    if      the    decision         is    reasonable,

even     if     we     would       have      come      to     a        contrary       conclusion

independently.”            Id.     at   630.        “To      be    held     reasonable,       the

administrator’s            decision       must      result          from       a     deliberate,

principled      reasoning          process    and      be    supported         by    substantial

evidence.”           Id.       (internal       quotation           marks       omitted).       In

reviewing       the     reasonableness            of        the    plan        administrator’s

decision, we consider the following nonexclusive factors:



                                             - 7 -
       (1) the language of the plan; (2) the purposes and
       goals of the plan; (3) the adequacy of the materials
       considered to make the decision and the degree to
       which they support it; (4) whether the fiduciary’s
       interpretation was consistent with other provisions in
       the plan and with earlier interpretations of the plan;
       (5) whether the decisionmaking process was reasoned
       and   principled;  (6)   whether   the   decision   was
       consistent   with  the   procedural   and   substantive
       requirements of ERISA; (7) any external standard
       relevant to the exercise of discretion; and (8) the
       fiduciary’s motives and any conflict of interest it
       may have.

Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan,

201 F.3d 335, 342-43 (4th Cir. 2000).

       We note that Plaintiff relies upon Ellis v. Metropolitan

Life Ins. Co., 126 F.3d 228 (4th Cir. 1997) for the proposition

that we must review United of Omaha’s interpretation of the term

“Accident” in the Policy under a modified abuse of discretion

standard because United of Omaha’s dual roles under the Policy

of   payor   and     plan   administrator        mean    that     United      of   Omaha

operates     under    a     conflict    of      interest    in     making       benefit

decisions.     Plaintiff’s reliance on Ellis is behind the times--

indeed, wrong.        In Champion v. Black & Decker (U.S.) Inc., 550

F.3d   353   (4th    Cir.    2008),    we    held   that    the    Supreme      Court’s

holding in Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105

(2008) required us to abandon our modified abuse-of-discretion

standard in conflict-of-interest cases in favor of the normal

abuse-of-discretion         standard.        Champion,     550    F.3d     at   358-59.

Following    Glenn,    a    plan   administrator’s         conflict      of     interest

                                        - 8 -
should be viewed “as but one factor among the many identified in

Booth for reviewing the reasonableness of a plan administrator’s

discretionary decision.”              Williams, 609 F.3d at 631.                   See also

id. at 630 (citing Ellis, 126 F.3d at 233, as example of pre-

Glenn Fourth Circuit case applying modified abuse-of-discretion

standard in reviewing benefit decision of plan administrator who

operated under a conflict of interest).

       Our careful review of the briefing, appellate record, and

relevant     case     law,   including      analysis          of    the    Booth   factors,

compels us to conclude that United of Omaha did not abuse its

discretion     in     denying       Plaintiff      the   sought        after    accidental

death benefits under the Policy for the death of her husband.

The crux of the matter is that United of Omaha acted reasonably

in concluding that Middleton’s death was not an “Accident” as

that    term     is    defined        in    the     Policy.               Critically,     the

administrative record before United of Omaha contained the Post

Mortem Examination Report of Assistant Medical Examiner Victor

Weedn, M.D. for the Office of the Chief Medical Examiner for the

State of Maryland, which reported that:                            (1) in September of

2009, due to the advanced stage of Middleton’s liver disease,

“it    was     decided       that     he    should       be        referred    for      liver

transplant”; (2) Middleton was subsequently placed on the liver

transplant list; and (3) “[h]is workup for the liver transplant

included a colonoscopy due to a family history of colon cancer

                                           - 9 -
(he had benign polyps in at least two previous colonoscopies in

2001 and 2006).”             (J.A. 116).           The administrative record also

contained      the       report   of   Dr.    Reeder     who,    after    reviewing    the

claim       file,        stated    that      “[Middleton]        underwent     screening

colonoscopy to look for colon pathology in preparation for liver

transplantation.”               (J.A. 93).         From this evidence, United of

Omaha acted reasonably in concluding that Middleton did not die

as the result of “a sudden, unexpected and unintended event,

independent         of    Sickness     and    all     other    causes.”       (J.A.   47).

Rather, the evidence supports the reasonable conclusion that he

died as the result of medical or surgical treatment for liver

disease, which cause of death is excluded from the definition of

accident under the plain language of the Policy.                           See Whetsell

v. Mutual Life Ins. Co. of New York, 669 F.2d 955, 956 (4th Cir.

1982)   (wife        not     entitled        to    accidental     death    benefits     as

beneficiary of life insurance policy covering husband who died

as    the     result       of     contracting        bacterial       endocarditis     from

infected needle used to administer saline solution intravenously

while recovering from cataract surgery because policy expressly

excluded from coverage “the risk of death caused or contributed

to,   directly       or     indirectly,       by    disease,    by   bodily    or   mental

infirmity, or by treatment or operation for disease or bodily or

mental infirmity”) (internal quotation marks omitted) (emphasis



                                             - 10 -
omitted); see also id. at 957 (“all deaths caused by medical

treatment necessarily involve mistreatment . . .”).

      Plaintiff takes issue with this analysis on the ground that

the administrative record lacks substantial evidence from which

United of Omaha, as the plan administrator, could reasonably

conclude that Middleton’s colonoscopy was ordered and performed

because of his underlying liver disease.                 In support, Plaintiff

highlights that the administrative record does not contain an

actual medical record belonging to Middleton indicating that he

was on a liver transplant list at the time of his colonoscopy.

Plaintiff     also    contends    that     the    preoperative       diagnosis   of

“Screening\family history colon cancer” listed on Dr. Doman’s

colonoscopy procedure report is at odds with the statements in

Dr. Weedn’s Report to the effect that Middleton underwent the

colonoscopy      as   part   of   the    workup   for    an   anticipated      liver

transplant.

      Plaintiff’s position is without merit.                  Dr. Weedn prepared

his   report     after   reviewing        first   hand     Middleton’s       medical

records   from    five   providers       spanning   more      than   forty    years.

There is no evidence in the administrative record to suggest

that Dr. Weedn, who is a licensed medical professional employed

by the State of Maryland, reported Middleton’s medical history

inaccurately based upon such review.                Moreover, the statements

in Dr. Weedn’s Report to the effect that Middleton underwent the

                                        - 11 -
colonoscopy       as    part    of    the     workup    for   an    anticipated       liver

transplant are not inconsistent with the preoperative diagnosis

of “Screening\family history colon cancer” listed on Dr. Doman’s

colonoscopy       procedure         report.      This    is    because      Dr.     Weedn’s

Report     took    the       screening\family          history      of     colon    cancer

information into account when he stated that Middleton’s “workup

for the liver transplant included a colonoscopy due to a family

history of colon cancer (he had benign polyps in at least two

previous colonoscopies in 2001 and 2006).”                     (J.A. 116) (emphasis

added).     In other words, a colonoscopy was indicated prior to

Middleton undergoing a liver transplant on account of his family

history of colon cancer.                In sum, there is no basis upon which

to conclude that United of Omaha acted unreasonably in relying

upon the portions of Dr. Weedn’s Report in which he recounts

medical    information         he    learned     about    Middleton        by     reviewing

first hand Middleton’s medical records.



                                             III.

     In conclusion, we hold United of Omaha did not abuse its

discretion    in       denying      Plaintiff’s      claim    for    accidental       death

benefits    under      the     Policy    with    respect      to    the    death    of   her

husband.      Accordingly,            the     district    court      did    not    err   in

granting summary judgment in favor of United of Omaha.                                   We,

therefore, affirm the judgment below.

                                            - 12 -
     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




                             - 13 -
