   Case: 11-20653     Document: 00511927455       Page: 1    Date Filed: 07/19/2012




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

                                                                       FILED
                                                                       July 19, 2012
                                    No. 11-20653
                                                                      Lyle W. Cayce
                                                                           Clerk



CHERYL LIKENS,

                                               Plaintiff-Appellant,

versus

HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY,

                                               Defendant-Appellee.




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




Before DAVIS and SMITH, Circuit Judges.*
JERRY E. SMITH, Circuit Judge:


      After coming home drunk, Wesley Vincent was found face-down in front
of his house by his wife, Cheryl Likens. He was taken to the hospital but eventu-
ally died. Likens tried to collect as the beneficiary of an accidental-death insur-


      *
         Judge Dennis participated in oral argument but subsequently became recused from
this case, which is decided by a quorum. See 28 U.S.C. § 46(d).
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                                  No. 11-20653

ance policy, but the claim was denied under an alcohol exclusion, because Hart-
ford Life and Accident Insurance Company (“Hartford”) determined that the
injury resulted from being legally intoxicated from alcohol. The district court
granted summary judgment for Hartford based on the alcohol exclusion. We
affirm.


                                        I.
      Vincent was driven home by a bartender at 11:30 p.m. after a night of
heavy drinking. Likens saw him falling down, but instead of entering the house
with her, he stayed outside to smoke a cigarette. Kayla Hudson came to the
house later and found Vincent unconscious at the foot of the front-porch stairs.
She alerted Likens, who came outside to check on Vincent. When Likens did not
feel a pulse, she called for emergency help. EMS and deputies took statements
from Likens and Vincent’s granddaughter.
      At the hospital, a differential diagnosis indicated Vincent had suffered a
myocardial infarction (heart attack), cardiac arrest, respiratory arrest, and ver-
tebrae abnormality. A CT scan found a fracture at the C2-3 vertebrae left facet
joints but no sign of dislocation. After Vincent had been unconscious for several
days with no brain activity, his family withdrew life support. His treating physi-
cian reported the cause of death as “anoxic brain injury secondary to cardiopul-
monary arrest.”
      Likens later requested that the Houston Medical Examiner’s Office inves-
tigate into the cause of death. Assistant Medical Examiner Mary Anzalone per-
formed an external examination of Vincent’s body and prepared a City of Hou-
ston Death Certificate. She determined that the immediate cause of death was
“complications following blunt trauma with fracture of cervical spine”; she listed
“chronic ethanolism” under the title “other significant conditions contributing to
death but not resulting in underlying cause.” She concluded that death was an

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                                  No. 11-20653

accident and the injury occurred because of a fall.
      As the beneficiary of Vincent’s policy, Likens made a claim with Hartford
for death benefits. The policy covers losses, such as death or dismemberment,
resulting from an “Injury,” defined as
      bodily injury resulting directly from accident and independently of
      all other causes which occurs while the Covered Person is Covered
      on the Policy. Loss resulting from a) sickness or disease . . . or
      b) medical or surgical treatment of a sickness or disease, is not con-
      sidered as resulting from injury.

The policy also excludes coverage for “any loss resulting from . . . [i]njury sus-
tained as a result of being legally intoxicated from the use of alcohol.”
      Hartford denied the claim, citing the alcohol exemption. Likens adminis-
tratively appealed, and Hartford upheld its determination in a letter indicating
that Wesley’s death did not meet the policy’s definition of “Injury” and that
Texas has a legal presumption of intoxication when the blood alcohol is at
least 0.08.


                                         II.
      Likens argues that the district court erred in interpreting the contractual
term “legally intoxicated” as unambiguously not requiring a person to be engag-
ing in an illegal act. Whether a contract is ambiguous is a question of law that
we review de novo. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157
(Tex. 2003).
      Although Likens believes the term “legally intoxicated” is ambiguous, not
only is the term’s meaning plain, but even if it were ambiguous, her proposed
definition is unreasonable. “Texas courts interpret insurance policies according
to the rules of contract construction.” de Laurentis v. U.S. Auto. Ass’n, 162
S.W.3d 714, 721 (Tex. App.SSHouston [14th Dist.] 2005, pet. denied). Thus, we
evaluate the contract based on its plain meaning, determining what the words

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                                      No. 11-20653

of the contract say the parties agreed to do. Nautilus Ins. Co. v. Country Oaks
Apartments Ltd., 566 F.3d 452, 455 (5th Cir. 2009). If ambiguity in the contract,
especially in exclusionary clauses, permits more than one meaning, the court
should construe the policy strictly against the insurer. Nat’l Union Fire Ins. Co.
of Pittsburgh, Pa. v. U.S. Liquids, Inc., 271 F. Supp. 2d 926, 932 (S.D. Tex. 2003).
If the insured’s construction of an ambiguous exclusionary provision is reasona-
ble, the court must adopt it, even if it is not the most reasonable position.
Id. at 931.
       The parties cite opposing persuasive authority, demonstrating that some
federal courts have found “legally intoxicated” to require a criminal act and oth-
ers have not. In MacDonald v. Unicare Life & Health Insurance Co., No. 3:07-
0345, 2008 WL 169142 (S.D. W. Va. Jan. 17, 2008),1 MacDonald was driven
home after drinking and fell off his balcony. His insurance company refused to
pay, relying on a similarly worded alcohol exclusion. Despite his blood alcohol
level’s being extremely high, the court found that the exclusion did not apply.
Id. at *3. Examining numerous prohibitions based on intoxication limitsSSfrom
driving a motor vehicle to public intoxication to getting a tattooSSthe court
determined there is no statutory intoxication limit set for standing on one’s own
property, so MacDonald could not have been “legally intoxicated.” Id.
       In Balthis v. AIG Life Insurance Co., 5 F. App’x 320 (4th Cir. 2001), a man
drank a lot, passed out on the couch, and choked to death on his vomit. The
court interpreted “legally intoxicated” to mean that parties should look to the
law of the state where the accident occurred. Id. at 322. The court examined the
North Carolina statutory provisions dealing with intoxication while driving,


       1
        As Hartford requests, we take judicial notice of the fact that the opinion in
MacDonald has been withdrawn after the parties settled. However, since decisions of the
Southern District of West Virginia are only persuasive authority in our court, the decision’s
no longer being in force is of little concern. We examine the decision to consider the
persuasiveness of its reasoning, regardless of the strength of the precedent.

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                                         No. 11-20653

operating a motor boat, and operating an aircraft and found that the blood-
alcohol content was above any of those standards. The court also used the alter-
native standard of having substantially impaired physical or mental functioning,
finding that satisfied by the deceased’s choking on his own vomit. Id. at 323.
Because he met all those standards, the court found no need to determine which
one applied.2 Id.
       The reasoning in Balthis is more persuasive. The plain meaning of “legal
intoxication” is that one is intoxicated according to the definition specified in the
law of that jurisdiction. Thus, in this insurance contract, “legally intoxicated”
mandates we use the definition of “intoxication” applicable across multiple areas
of Texas law.
       Texas defines “intoxication” as
       (A) not having the normal use of mental or physical faculties by rea-
       son of the introduction of alcohol, a controlled substance, a drug, a
       dangerous drug, a combination of two or more of those substances,
       or any other substance into the body; or
       (B) having an alcohol concentration of 0.08 or more.

TEX . PENAL CODE § 49.01(2). This definition applies to both civil and criminal
law.3 Although the state could set different levels for these divers categories,
Texas has not done so.4 Because this definition is broadly used in criminal and


       2
         Likens’s argument that Balthis is inapplicable is unavailing. The fact that Balthis
choked on his own vomit, rather than dying from an accident, does not affect the court’s rea-
soning regarding whether a person can be legally intoxicated while not engaging in a prohib-
ited activity.
       3
        See TEX. LABOR CODE § 401.013(a)(1) (defining “intoxication” in the Workers’ Compen-
sation Act as “having an alcohol concentration to qualify as intoxicated under Section 49.01(2),
Penal Code”). The district court also noted that before the Texas Alcoholic Beverage Commis-
sion adopted new regulations in 2011, its regulations for serving alcohol defined intoxication
the same way. Nothing suggests that the new laws, which require persons serving alcohol to
be trained in intoxication law, did anything to disturb that definition.
       4
           Although legal intoxicationSSas a defense to specific-intent crimesSSwould require a
                                                                                  (continued...)

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                                        No. 11-20653

civil contexts, this is the applicable definition of legal intoxication, regardless of
the activity at issue. Further supporting that reading, this court has used the
driving-while-intoxicated laws to determine that a sailor who jumped overboard
was “legally drunk,” though nothing suggests jumping off a ship was a prohib-
ited act to perform while intoxicated.5 No ambiguity exists in the insurance con-
tract’s intoxication exclusion.6
       Even if the provision were ambiguous, interpreting “legally intoxicated”
to require that the person be engaging in an illegal or prohibited activity is
unreasonable. First, the policy includes an alternate version of the exclusion
applicable in Minnesota, which specifically limits the exclusion to cases where
injuries are sustained while operating a motor vehicle while intoxicated. This
suggests that the policy intends the exclusion everywhere else to be broader,
otherwise that Minnesota language would apply everywhere.
       More importantly, requiring a prohibited activity does not comport with
the ordinary understanding of legal intoxication, from common sense or statu-


       4
          (...continued)
higher level of inebriation, that is an outlier; to utilize such an intoxication defense, a person
must be far more impaired than what is considered “legally intoxicated” in other contexts. One
of Likens’s cited dictionaries recognizes how uncommon the intoxication defense is, specifying
it is “available only rarely.” NOLO’S PLAIN ENGLISH LAW DICTIONARY, www.nolo.com/dictionary
(last visited May 18, 2012). Thus, it is not part of the plain meaning of the concept of “legally
intoxicated.”
       5
        See Reyes v. Vantage S.S. Co., 609 F.2d 140, 141-42 (5th Cir. 1980). Although it is not
binding in this case, the regular use of drunk-driving levels as a measure of legal intoxication
in admiralty contexts further suggests that the plain meaning of legal intoxication is the state-
established intoxication limit, even beyond the activities the state prohibits intoxicated per-
sons from performing.
       6
          Hartford’s additional argumentSSthat the exclusionary provision is too different from
the definition in the penal code, because the exclusion only allows alcoholSSis similarly una-
vailing. The fact that the exclusionary provision focuses only on alcohol intoxication, but the
Texas Penal Code includes a controlled substance, drug, or any other substance that has simi-
lar effects, does not make the definition completely inapplicable. The exclusion specifies
“legally intoxicated from the use of alcohol,” which shows that the policy recognizes that legal
intoxication can result from the use of other substances.

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                                       No. 11-20653

tory design. When one discusses the concept of legal intoxication, the focus is on
how much alcohol a person has had, not whether he has begun a prohibited
activity. This common-sense interpretation comports with the structure of the
Texas Penal Code: Intoxication is first defined generally, and the various activi-
ties that one is penalized for engaging in while intoxicated are described later.
See TEX. PENAL CODE § 49.01 et seq. The law does not criminalize intoxication;
it determines what levels of intoxication are too severe, then prohibits certain
activities when a person reaches those levels.
      Mr. Vincent was legally intoxicated under Texas law. The legal intoxica-
tion limit given in the Texas Penal Code is 0.08%. It can also be defined as not
having normal use of physical and mental faculties. TEX. PENAL CODE § 49.01(2).
Vincent had a blood alcohol content of 0.262%, over three times the legal limit.
The National Institute of Health reports that people with similar levels will suf-
fer from stupor and unconsciousness. No matter what reasonable definition of
legal intoxication is used, Vincent meets it.


                                            III.
      Likens’s argument that Vincent’s fall could have been caused by clumsi-
ness does not create a genuine issue as to whether the alcohol exclusion applies.
We review a summary judgment de novo. Gray v. Powers, 673 F.3d 352, 354 (5th
Cir. 2012). Summary judgment is appropriate if, considering all the evidence,
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a).
      Though the language of the exclusion determines its scope, Texas cases
generally interpret alcohol exclusions to apply even where alcohol is not the sole
cause of death.7 The exclusion says that the policy does not cover injuries “sus

      7
          Edwards v. Employees Retirement Sys., No. 03-03-00737-CV, 2004 WL 1898253, at *5
                                                                             (continued...)

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                                       No. 11-20653

tained as a result of being legally intoxicated from the use of alcohol.” That
language is even softer than the “direct result” language that has be read to
mean a proximate cause. Because the exact level is ambiguous, we can interpret
the test to require proximate cause, thereby giving the beneficial reading to the
insured.
       There are two pieces of evidence that suggest alcohol was the main cause
of Vincent’s death: His extreme intoxication caused him to have difficulty stand-
ing, and the medical reports mentioned intoxication as contributing to his death.
The death certificate and the accompanying medical report indicated that Vin-
cent died from a fall and that ethanolism was a “significant condition contribut-
ing to death, but not resulting in the underlying cause.” The best interpretation
of that statement is that intoxication contributed significantly to the resulting
death but was not itself the underlying cause of the death. In other words, the
medical evidence Likens submitted says Vincent fell in significant part because
he was drunk.8
       Vincent also had an extremely high blood alcohol content and was visibly
unstable on his feet. The EMS report explained that Likens said that when Vin-
cent got home he was extremely intoxicated and kept falling. He could not even
come into the house. His blood alcohol content was 0.262%, high enough that,
according to the National Institute of Health, he would be in a stupor and have
problems with depth perception, coordination, and balance.
       With Vincent’s significant physical impairment from intoxication and the

       7
         (...continued)
(Tex. App.SSAustin Aug. 26, 2004, no writ) (interpreting an exclusion where injury was the
“direct result” of the insured’s intoxication as requiring alcohol be the proximate rather than
sole cause).
       8
         The fact that “ethanolism” was not listed as the direct cause of death in no way con-
tradicts intoxication’s substantial role. If alcohol toxicity had killed Vincent, it would be a
cause. Because it only caused him to fall and die that way, it is just a significant condition
contributing to death.

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                                       No. 11-20653

death certificate stating that intoxication was a significant condition contribut-
ing to death, no reasonable jury could find that the alcohol exclusion did not
apply. Although all justifiable inference must be drawn in favor of the non-
movant, Envtl. Conservation Org. v. City of Dall., Tex., 529 F.3d 519, 524 (5th
Cir. 2008), the non-movant still cannot defeat summary judgment with specula-
tion, improbable inferences, or unsubstantiated assertions. TIG Ins. Co. v. Sedg-
wick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). The medical opinion on
the death certificate was that intoxication led to Vincent’s fatal fall, and no med-
ical evidence suggests otherwise.9 His blood alcohol level means he was prone
to fallingSSbeing in a stupor with a lack of coordination, motor skills, or balance
SSand the EMS report and the hospital report confirm that Vincent was visibly
unstable (so much so that he could not even get into his house).
       The only evidence suggesting another cause of Vincent’s death is that he
was clumsy. But even if he was already prone to falling down, such an excep-
tionally high level of intoxication makes falling far more likely. Combined with
stupor and poor coordination, the alcohol’s substantial role in making him fall
cannot be ignored. Though it is not impossible that his clumsiness was actually
the dominant factor in the fall and that it would have occurred even if he had not
been so drunk that he could barely function, no evidence supports that theory.
       The medical opinion in the death certificate stated the intoxication was a
significant condition contributing to his death, and both his blood alcohol content
and visual observation of his behavior suggest the alcohol caused him to fall
repeatedly and suffer incredible difficulties with movement. Without something
more to support the inference that his fall was mostly caused by clumsiness, a



       9
        The only other medical evidence on cause of death is the hospital records that indicate
Vincent died from a heart attack rather than the fall. That does not refute that alcohol made
him fall, and relying on this medical evidence would require denial of coverage anyway,
because heart attacks are not covered.

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                                  No. 11-20653

reasonable jury could not help but conclude that he fell and suffered injuries as
a result of his intoxication. On these facts, intoxication may not have been the
only cause, but it does not have to be so to satisfy the exclusion.
      The judgment is AFFIRMED.




                                       10
