                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                 ___________

                              Nos. 01-3570/3648
                                ___________

Sarah L. Phillips-Foster             *
                                     *
       Plaintiff/Appellant,          *
                                     *
       v.                            *    Appeal from the United States
                                     *    District Court for the District
UNUM Life Insurance Company          *    of Minnesota.
       of America,                   *
                                     *
       Defendant/Appellee,           *
                                     *
Nancy Ruhland, as parent and natural *
guardian of Ian G. Foster and Craig  *
A. Foster, minor children; Jeramy T. *
Foster; Angela Sue Whitwam; Victoria *
Poshard; Diane Della Busta, as       *
guardian ad-litem for Zoe Elizabeth  *
Phillips, a minor child,             *
                                     *
       Defendants.                   *

                                 ___________

                            Submitted: June 10, 2002

                                Filed: September 4, 2002
                                 ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and MURPHY, Circuit Judges.
                          ___________
MURPHY, Circuit Judge.

       Sarah Phillips-Foster brought this declaratory judgment action against UNUM
Life Insurance Company of America which had insured her deceased husband, Mark
Foster. UNUM declined to pay her the policy proceeds because of a contractual
suicide exclusion and because of her suspected involvement in Foster's death. She
sued the company and other beneficiaries, and the district court1 granted summary
judgment to UNUM. Phillips-Foster appeals from the final judgment dismissing
UNUM from the case, and we affirm.

                                         I.

      Mark Foster worked as a pharmacist for Drug Emporium, Inc., which had
contracted with UNUM to provide life insurance benefits for its employees. As a
pharmacist with less than five years in the position, Foster received a basic life
insurance benefit in the amount of $100,000 and accidental death and dismemberment
(AD&D) coverage in "[a]n amount equal to [his] life amount." In addition he
purchased "Option B" which provided supplementary life coverage in the amount of
$100,000. Both the AD&D and the supplementary life insurance coverage was
subject to a suicide exclusion; the basic life benefit was not.

       At the time of Foster's death Phillips-Foster was the beneficiary for both the
basic life and the AD&D coverage. Foster had made her the beneficiary on March
11, 1997, several weeks before their marriage, in place of Victoria Poshard, a former
girlfriend. The supplemental Option B enrollment form designated Jeramy T. Foster
as primary beneficiary, and Craig A. Foster, Ian G. Foster and Angela (Foster)
Whitwam as contingent beneficiaries. Jeramy and Angela were Foster's children from



      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

                                        -2-
his first marriage to Susan Larson, and Craig and Ian were children from his second
marriage to Nancy Ruhland.2

        Foster was found dead on July 18, 1997, some four months after he married
Phillips-Foster and named her a beneficiary. On the morning of July 18, Foster's
nephew, Brent Thompson, contacted the Minneapolis Police Department to report
that Foster was missing. Later that morning his body was found on the side of St.
Croix Drive in rural Dairyland Township in Douglas County, Wisconsin. The body
was dressed completely in white, and the cause of death appeared to be a gunshot
wound to the chest. The Douglas County Sheriff began a homicide investigation, and
the police later concluded that Foster had been shot with a .44 caliber rifle. A note
was found in his shoe that had writing on both sides. One side said "Jack Frazier isn't
here, but it's Jimmy Bailey? or look alike?" On the other side of the note was "Geez
it's 3 toughs. Hope I'm OK."

       The day after discovering Foster's body, investigators from the Douglas County
Sheriff's Department and the Minneapolis Police Department interviewed Thompson,
Phillips-Foster, and their housemate, Greg Friesner. Phillips-Foster told them on July
19 that she had last seen Foster at Madden's Resort near Brainerd, Minnesota on the
afternoon of July 17. In a statement she gave on July 29, Phillips-Foster told police
that at Madden's she and Foster had talked about threats he had received from Jack
Frazier and Jimmy Bailey. Thompson told the detectives that he had last seen Foster
between 2 and 2:30 a.m. on the morning of July 18, when Foster told him that he was
having problems with Jack Frazier and was going to meet him at a Country Kitchen
to straighten things out. Thompson said that Friesner had told him that he and Foster
had seen Frazier on a motorcycle at an Amoco station near their house on the evening



      2
        Foster had no children with his third wife, Tammy Blair, who is also the sister
of Phillips-Foster.

                                         -3-
of July 17.3 Two of the investigators noted that during the meeting with Phillips-
Foster and Thompson on July 19, neither inquired about how or where Foster had
been killed.

       In a second interview on July 19, Thompson told an investigator that Foster had
expressed concern about his safety on July 17 because Frazier had demanded that he
"make some drugs for him" or else he would "take care of [Foster] and his family."
Thompson also opened a letter that Foster had left for him in the event that he died.
The letter, dated July 15, 1997, expressed Foster's concern that he was in danger and
provided instructions for obtaining his life insurance proceeds, for making funeral
and wake arrangements, and for placing an obituary in Twin Cities and Eau Claire
newspapers. During this same interview Friesner reported that Frazier was "totally
obsessed" with Phillips-Foster and that he had made threats against Foster because
of his relationship with her.

       Phillips-Foster had been romantically involved during the 1990s with Jack
Frazier and with James "Jimmy" Bailey, Jr., and both men were known to have been
angry with her and Mark Foster. Bailey and Phillips-Foster had had a child together
in 1991 – Jake Phillips. Bailey also suspected that he might be the father of Phillips-
Foster's first child, Roy Phillips, who had been born in 1990.4 In the mid-1990s Jack
Frazier moved in with Phillips-Foster and her roommate/lover, Jackie. Frazier and
Phillips-Foster developed a romantic relationship, and Jimmy Bailey became involved
with Jackie and later married her. Frazier and Phillips-Foster continued their
relationship until February 1997, when she ended it and moved in with Mark Foster.


      3
       On July 29 Friesner gave a statement to Douglas County investigators in
which he said he was with Foster on July 18 between midnight and 1:00 a.m., when
he "saw a man riding a motorcycle who I know as Jack Frazier."
      4
       Bailey later dropped this claim, and Phillips-Foster says that Roy is the son of
another man, Tom Brown.

                                         -4-
Phillips-Foster and Foster were married on April 1, 1997. Tensions between Bailey,
Frazier, Phillips-Foster, and Foster came to a head in May, 1997, at a custody hearing
on the competing claims of Bailey and Phillips-Foster. Frazier allegedly made threats
against Foster at the hearing, and Bailey allegedly assaulted both Foster and Phillips-
Foster after losing the custody battle.

      Douglas County investigators interviewed Jack Frazier at a restaurant about a
week after Foster's body was discovered. He told them that when he read in the
newspaper that Foster had been found dead in Dairyland, Wisconsin, he knew he
would be contacted by the police because Phillips-Foster was trying to set him up.
When asked about his whereabouts on July 17 and 18, he claimed that he had traveled
from Minneapolis to Salem, Massachusetts on July 14 and returned home on the
evening of July 18. He supported his alibi by turning over an itinerary from Yada
Systems for his travel on those dates, a dated Northwest Airlines baggage claim
check, and his personal calendar.

       After talking with Frazier, the Douglas County Sheriff's Department became
increasingly suspicious that Thompson, Friesner, and Phillips-Foster were involved
in the death of Foster and that he might have had a role in his own death. They began
to suspect that the note in Foster's shoe about Frazier and Bailey, the July 15 letter to
Thompson about Foster's fears, the reported sighting of Frazier at the Amoco station
the night before the murder, and the story about meeting Frazier at a Country Kitchen
were intended to lead them to the conclusion that Frazier had killed Foster. The
investigators also came to suspect that the death scene was selected to lead them to
Frazier since he owned property in Pine County, Minnesota, which was not far from
the murder site in Douglas County, Wisconsin.

      The suspicions of the Douglas County Sheriff's Department heightened after
further interviews with Foster's children, a former girlfriend, and a coworker. Jeramy
Foster told investigators that his father had owned several guns, one of which was a

                                          -5-
.44 caliber carbine. He reported that he had last seen the gun in a cabinet at his
father's St. Paul storage unit, and that he had given his father the only key to the
cabinet about five to six weeks prior to his death.5 When investigators searched the
storage unit, they found that the gun was missing. The security log at the facility
showed that Foster had entered his storage unit at 4:36 p.m. on July 17, and the
manager identified Foster's car on a security videotape. The tape showed his car
entering the lot with two or three people in the vehicle. Jeramy Foster and his sister,
Angela Whitwam, also informed investigators that their father had followed a cult
type of religion, called Tantra, which believed in free sex. Jeramy and Angela
reported that their father had sex with other men and women, and that everyone living
in the house with their father had had sex with each other at one time or another.6

       Victoria Poshard, a former girlfriend of Foster, provided investigators with
more information about his religious beliefs. She stated that Foster believed he was
a voodoo priest and that he claimed to have gained his spiritual powers from shooting
his teacher in a New Orleans cemetery. Foster had told her the same thing would
happen to him, and that Greg Friesner was the "chosen one" who was going to kill
him and inherit his worldly possessions and spiritual powers. In an affidavit
submitted three months prior to Foster's death, as part of the custody battle between
Phillips- Foster and Bailey, Poshard made many of the same claims. She stated that
Foster studied Tantra, that he conducted rituals in his attic, that it was his destiny to
be killed by Friesner so that his priestly powers would be transferred to his student,
and that he had participated in ritual ceremonies in New Orleans.

      5
       Jeramy told investigators that he had been keeping the key to the gun cabinet
because he was concerned that his father might retrieve one of the guns and hurt
himself.
      6
       Phillips-Foster later admitted in a deposition that she had had sex with Foster
and another woman and that she and Foster had had sex while another man watched.
She also admitted having had sex with Friesner shortly after moving into Foster's
apartment in February, 1997.

                                          -6-
       Jenny Soule, a coworker of Foster's, reported to investigators that he had told
her that he had received death threats and that he had made out a letter explaining
what should be done in case he was "found dead along the side of the road." Soule
stated in addition that Foster had talked about rituals that took place in his attic,
including one that involved marking a naked woman on a table.

       Investigators also obtained a farewell videotape prepared by Foster on July 17,
several hours before his death. In the videotape, Foster spoke to his unborn child and
his other children and said that he loved Phillips-Foster. Foster discussed the long
journey he was taking, that he would be meeting his ancestors, and that he was going
to the other side. Foster told his family that he was not afraid of death and
encouraged them not to be afraid. He also told them he was looking forward to
seeing them again and that they would all be together again some day.

      Phillips-Foster and Jeramy Foster filed notices of claim with UNUM on August
19, 1997. By early September 1997, Douglas County investigators had informed
UNUM internal claims specialists that Phillips-Foster, Friesner, and Thompson were
the main suspects in Foster's death, but that there was also a "high probability" that
Foster himself had been involved.7 The investigators told UNUM that they
considered Foster to be a ring leader in a cult and that they were now treating his
death as an insurance fraud case. They had also discovered that Foster had purchased

      7
        On July 10, 2002, a federal grand jury issued an indictment charging Friesner
and Thompson with having conspired with Foster and other persons known and
unknown to commit murder in consideration for a promise of a payment of pecuniary
value, in violation of 18 U.S.C. §§ 2, 371, and 1958 (a), to defraud UNUM and State
Farm, in violation of 18 U.S.C. §§ 2, 1341, and 1343. Friesner and Thompson were
also charged with having knowingly used and carried a firearm during and in relation
to a federal crime of violence, in violation of 18 U.S.C. § 924(c)(1)-(2). Phillips-
Foster was not mentioned by name in the indictment, but it does refer to a beneficiary
described as "Individual A (who) married Foster in April 1997, approximately three
months before Foster's death."

                                         -7-
another life insurance policy with State Farm Insurance Company on July 2, 1997,
and that he had submitted to a physical examination for the policy two days before
his death. The State Farm policy carried benefits of $300,000, and Phillips-Foster,
Thompson and Friesner were among the named beneficiaries.

       UNUM had begun its own investigation after receiving the claim notices, and
it gathered evidence from a number of sources. It obtained records from Douglas
County, and it began interviewing witnesses familiar with Foster and Phillips-Foster.
These interviews provided more information about Foster's belief in voodoo/Santeria
and further support for the theory that he could have been involved in his own death
as part of a religious ritual. Nicolle Dorrian, a former lover of Phillips-Foster,
informed UNUM investigators that Phillips-Foster had told her that Foster was a high
priest, that Friesner would become the leader if Foster died, and that Foster's powers
would be transferred to any child she would have with him. Dorrian also stated that
Phillips-Foster had told her that Foster had "lots of money" and that she would "never
have to worry about money again." Jackie Bailey told UNUM investigators that she
believed that Phillips-Foster was involved in the plot to kill Foster because she was
the only one who knew the location of Frazier's property in Pine County, Minnesota,
since she had gone there during the course of her relationship with Frazier.

       Adam Fisher, a former roommate of Foster's during the mid-1990s, reported
that Foster had taught him both Tantra and Santeria and that Foster had told Friesner
he would have to kill him to attain sainthood. Roger Williamson, a bookstore owner
specializing in voodoo and the occult, told investigators that Foster was interested in
Tantra, voodoo, Santeria, and Palo Mayombe, and that Foster had rituals in his home.
Williamson stated that Foster believed he was a voodoo high priest, that such priests
were supposed to wear white clothing, and that Foster had claimed to Fisher that he
would be killed and his soul would pass to his student.




                                         -8-
       UNUM investigators also learned that Foster may have made a "suicide
gesture" in 1995, that he had been treated for depression, that he had suffered
financial setbacks after his business (Quanta Press, Inc.) failed in February, 1997, that
he owed the IRS between $22,000 and $28,000, and that he was in the middle of an
audit at the time of his death. A 1998 deposition of Phillips-Foster confirmed that
Foster was a practitioner of Santeria and that he had prepared a will on July 2, 1997,
naming Brent Thompson among the beneficiaries.

        On December 8, 1998, UNUM issued a rejection letter which denied coverage
on both the AD&D portion of the life insurance policy and the supplemental
insurance Foster had purchased. Both were subject to a suicide exclusion. On
December 22, 1998, Phillips-Foster sent a letter to UNUM appealing the denial of the
AD&D and supplemental insurance benefits, and on March 3, 1999, UNUM affirmed
its earlier decision. UNUM also withheld payment of the $100,000 basic life benefit
because it was uncertain if Phillips-Foster could legally receive payment under Minn.
Stat. Ann. § 524.2-803, a statute proscribing payment of life insurance benefits to
anyone who feloniously and intentionally kills the insured. UNUM apparently never
formally notified Phillips-Foster that it was withholding payment of the basic life
benefit.

       Phillips-Foster brought this action against UNUM and other potential
beneficiaries, seeking declaratory relief and monetary damages on behalf of herself
and as the parent and natural guardian of Zoe Phillips (Foster's child born after his
death).8 The individuals named as defendants were Nancy Ruhland, as parent and
natural guardian of Ian G. Foster and Craig A. Foster; Jeramy T. Foster; Angela Sue
Whitwam; and Victoria Poshard. UNUM counterclaimed and filed a crossclaim in
interpleader, and Whitwam, Ruhland, and Jeramy Foster filed crossclaims.



      8
          A guardian ad-litem was later appointed for Zoe Phillips.

                                          -9-
      UNUM moved for dismissal of all state claims, summary judgment on the
ERISA claims, and discharge upon its deposit into court of the basic life portion of
the policy proceeds ($100,000 with interest at 5.88% per annum). Phillips-Foster
moved for summary judgment, seeking a declaration that UNUM was obligated to
pay $400,000 in benefits on the policy9 and for other equitable relief. Ruhland,
Foster, and Whitwam also moved for summary judgment.

       The district court granted UNUM's motion for summary judgment, for leave
to deposit funds into court, and for dismissal of state law claims. The court ruled that
Foster's life insurance policy had been issued as part of an employee benefit plan and
was thus subject to ERISA, that the administrator's decision to deny coverage should
be reviewed under an abuse of discretion standard, and that the administrator's
exercise of discretion had been reasonable. The court also granted that part of
Phillips-Foster's motion which sought a declaration that the total exposure UNUM
had on Foster's policy was $400,000, denied the other relief she requested, and denied
other pending motions. The district court subsequently entered an order for judgment
under Fed. R. Civ. P. 54(b), finding that there was no reason to delay entry of a final
judgment dismissing UNUM from the case. Phillips-Foster appealed from the
judgment, and UNUM filed a cross appeal to challenge the district court's finding that
Foster's policy provided a total of $400,000 in benefits. Still remaining in the district
court are the competing claims of the other potential beneficiaries to the $100,000
basic life benefit paid into the registry by UNUM.




      9
       Phillips-Foster's contention was that the AD&D benefit attached to both the
$100,000 basic life benefit and the $100,000 Option B supplemental insurance and
thus provided $200,000 in aggregate coverage. UNUM argued in opposition that the
AD&D benefit was limited to the $100,000 basic life coverage.

                                          -10-
                                          II.

       On her appeal Phillips-Foster contends that the district court erred when it
applied an abuse of discretion standard rather than a sliding scale analysis, citing
Woo v. Deluxe Corp., 144 F.3d 1157 (8th Cir. 1998). She argues that UNUM
seriously breached its fiduciary duties because (1) its decisionmaker, Denise Kinney,
had a conflict of interest and (2) there were procedural and substantive irregularities.
Phillips-Foster also claims that the denial of benefits was unreasonable even under
an abuse of discretion standard, because the decision was based only upon
speculation, innuendo, and bizarre stories of witnesses who lacked credibility. She
asks that the judgment be reversed or the case remanded for additional findings.

        UNUM responds that abuse of discretion was the correct standard for the
district court to use and that the judgment should be affirmed. UNUM denies that
there were sufficient irregularities to lessen the deference afforded to the
administrator and that it reasonably relied on the investigations conducted by the
Douglas County Sheriff's Department and its own claims analyst in reaching its
decisions. UNUM cross appeals the district court's ruling that the policy afforded
$400,000 in coverage. It argues that the policy language is clear that the maximum
amount of coverage is $300,000 and points out that we only need to reach this issue
if the judgment in its favor is overturned. UNUM has also moved to strike portions
of appellant's appendix which it says are not part of the administrative record.

       We review de novo the district court's grant of summary judgment, viewing the
record in the light most favorable to the nonmoving party. Tillery v. Hoffman
Enclosures, Inc., 280 F.3d 1192, 1196 (8th Cir. 2002). We also review de novo the
district court's determination of the appropriate standard of review under ERISA. Id.




                                         -11-
                                          A.

       Foster's life insurance plan was part of an employee benefit plan and subject
to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461,
so we must look to ERISA law to select the proper standard for review. Where a
benefit plan gives the administrator "discretionary authority to determine eligibility
for benefits," the standard of review is abuse of discretion. Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989). See also Heaser v. Toro Co., 247 F.3d 826,
833 (8th Cir. 2001); Donaho v. FMC Corp., 74 F.3d 894, 898 (8th Cir. 1996). Such
decisions "will not be disturbed if reasonable." Firestone Tire, 489 U.S. at 111.

       An administrator's decision will be considered reasonable if "a reasonable
person could have reached a similar decision, given the evidence before him, not that
a reasonable person would have reached that decision." Donaho, 74 F.3d at 899
(emphasis in original). The administrator's decision need not be the only sensible
one, so long as the decision provides a reasoned explanation, based on the evidence,
in support of a particular outcome. Id. In evaluating the reasonableness of the
administrator's decision, a court should consider the evidence that was before her at
the time she made the final decision, but it does not do its own weighing of the
evidence. Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th Cir. 1997).
A reasonable decision must be supported by substantial evidence, which is "more
than a scintilla but less than a preponderance." Donaho, 74 F.3d at 900 n.10. (citation
and quotation omitted). A decision supported by a reasonable explanation will not
be disturbed even if another reasonable interpretation could be made or if the court
might have reached a different result had it decided the matter de novo. Id. at 899-
900.




                                         -12-
                                          B.

        Phillips-Foster does not dispute that the life insurance policy provides UNUM
with the discretionary authority to determine benefit eligibility, but she argues that
a sliding scale analysis should be applied because she says UNUM seriously breached
its fiduciary duty to her by failing to acknowledge its obligation to pay the $100,000
basic life benefit, failing to make a timely claim determination, failing to pay a
repatriation benefit, failing to analyze evidence contrary to its position, failing to
obtain an expert opinion on whether Foster committed suicide, and failing to provide
the entire claims file to the district court.

        A plan administrator's decision will be afforded less deference if a claimant
presents "material, probative evidence demonstrating that (1) a palpable conflict of
interest or a serious procedural irregularity existed, which (2) caused a serious breach
of the plan administrator's fiduciary duty to her." Woo v. Deluxe Corp., 144 F.3d
1157, 1160 (8th Cir. 1998). A plaintiff must also "show that the conflict or
procedural irregularity has 'some connection to the substantive decision reached.'" Id.
at 1161 (quoting Buttram v. Cent. States, S.E. & S.W. Areas Health & Welfare Fund,
76 F.3d 896, 901 (8th Cir. 1996)).

      The need to show a serious breach of fiduciary duty "presents a considerable
hurdle for plaintiffs." Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583, 588 n.9
(8th Cir. 1999) (citations and quotations omitted). In order to prevail, the claimant
must offer evidence which causes "serious doubts as to whether the result reached
was the product of an arbitrary decision or the plan administrator's whim." Id. at 589
(quoting Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir. 1998)). Only when a
claimant satisfies both tests will a "sliding scale" approach be adopted. This type of
standard requires that "the evidence supporting the plan administrator's decision must
increase in proportion to the seriousness of the conflict or procedural irregularity."
Woo, 144 F.3d at 1162.

                                         -13-
        In arguing for a sliding scale analysis, Phillips-Foster claims that UNUM had
a palpable conflict of interest, because it derived a direct financial benefit from not
paying her claim, and that UNUM failed to follow proper procedures. Something like
a rebuttable presumption of conflict of interest exists when the insurer is also the plan
administrator, Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944, 947-48 (8th Cir.
2000), and UNUM has not articulated any "ameliorating circumstances" to rebut it.
Id. at 948. Phillips-Foster says UNUM's procedure was irregular because it was silent
about its obligation to pay the $100,000 basic life benefit until she filed this action
and UNUM moved in interpleader to deposit the benefit with interest into court.10 A
plan administrator's failure to provide timely notice of the denial of benefits has been
recognized as a serious procedural irregularity. Tillery, 280 F.3d at 1198. The
irregularities cited by Phillips-Foster are insufficient by themselves to require a
higher standard of review, however. Under Woo any procedural irregularity must rise
to the level of a serious breach of fiduciary duty before a sliding scale analysis is
required.

   In order to meet the second part of the Woo test, Phillips-Foster must show that
UNUM's potential conflict and failure to meet claim deadlines amounted to serious


      10
        Section 503 of ERISA requires employers to "provide adequate notice in
writing to any participant or beneficiary whose claim for benefits under the plan has
been denied," 29 U.S.C. § 1133(1), and initial claims handling must be completed
within time limits prescribed by the Secretary of Labor. 29 C.F.R. § 2560.503-1(e)
(1997). After Phillips-Foster filed her claim for Foster's life insurance proceeds on
August 19, 1997, UNUM had 90 days to respond. 29 C.F.R. § 2560.503-1(e)(3)
(1997). When UNUM failed to meet its deadline or file for an extension, Phillips-
Foster's claim was deemed to have been denied. 29 C.F.R. § 2560.503-1(e)(2)
(1997). She then had the right to seek review under § 2560.503-1(g) (1997). On
December 8, 1998, UNUM denied her claim to AD&D and supplemental insurance
benefits. She appealed that decision on December 22, 1998, and UNUM affirmed its
denial on March 3, 1999. The record is unclear whether she sought review of the
deemed denial of her claim to the $100,000 basic life benefit.

                                          -14-
breaches of fiduciary duty such that "serious doubts" are raised as to whether the
administrator's decision was arbitrary or the product of her whim. Barnhart, 179 F.3d
at 589. The record before the administrator showed that within a month after Phillips-
Foster filed her claim for the basic life benefit, Douglas County investigators had
alerted UNUM that they considered her a suspect in a conspiracy to cause the death
of her husband and that there was a "high probability" that Foster was involved in his
own death. Moreover, Douglas County investigators asked UNUM to delay
disbursement of the insurance money in order to facilitate their investigation.
Phillips-Foster's right to the basic life benefit was also contested by Nancy Ruhland,
Foster's second wife, who asserted that she had a superior claim because a divorce
decree obligated Foster to maintain insurance coverage to secure his child support
obligations. It was not unreasonable in this context for UNUM to delay its decision.
Disbursement of the monies to Phillips-Foster would have invited additional litigation
and potentially breached UNUM's fiduciary duties to other claimants.

        UNUM's failure to meet claim deadlines was not under these circumstances a
breach of its fiduciary duty. The deemed denials gave Phillips-Foster the right "to
bring a civil action to have the merits of [her] application determined, just as [she]
may bring an action to challenge an outright denial of benefits, Mass. Mut. Life Ins.
Co. v. Russell, 473 U.S. 134, 144 (1985), and any potential harm from UNUM's
failure to acknowledge its obligation to pay the basic life benefit was ameliorated by
its interpleader action to deposit into court the $100,000 benefit with interest. Any
bad faith claim Phillips-Foster might assert under state law based on the delayed
acknowledgment of UNUM's basic life obligation is preempted under ERISA. Pilot
Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987). See also Walker v. S. Co. Servs.,
279 F.3d 1289,1292-93 (11th Cir. 2002) (tort of bad faith refusal to pay an insurance
claim is preempted by ERISA).

      Phillips-Foster also argues that UNUM seriously breached its fiduciary duty
by not paying the policy's $5,000 repatriation benefit. This benefit is due if the

                                        -15-
insured dies more than 75 miles from his usual residence. Phillips-Foster has
presented no evidence that the plan administrator's refusal to pay this benefit was
arbitrary under Foster's policy. A condition precedent to payment of repatriation is
payment of the AD&D benefit so UNUM needed to make its AD&D decision first.
After determining that the suicide exclusion applied to the AD&D, it was not a breach
of its fiduciary duty to refuse to pay the repatriation benefit.

       Phillips-Foster contends that UNUM failed to give sufficient weight to contrary
evidence and thus breached its fiduciary duty. Even if UNUM gave more weight to
information which supported the conclusion that Foster was involved in a conspiracy
to cause his own death, that does not establish a procedural irregularity. Phillips-
Foster has presented no probative evidence that conflicts of interest led UNUM to a
predetermined or arbitrary decision. The record shows that it was not unreasonable
for UNUM to rely upon the tentative conclusion of Douglas County investigators that
Phillips-Foster, Thompson, and Friesner were involved in Foster's death. Its own
investigations also supported this conclusion. We do not find persuasive Phillips-
Foster's claim that UNUM should be faulted for failing to analyze an October 1997
family court order involving the custody battle between Phillips-Foster and Bailey.
Phillips-Foster claims that the family court rejected many of the allegations of bizarre
activity concerning Foster that were made during the course of the custody fight
because the court did not mention these matters in its findings. The fact that a court
has not specifically mentioned particular evidence does not mean that it was rejected,
however, and the court did indicate that Foster was engaged in voodoo and Santeria,
that Phillips-Foster, Thompson and Friesner were the main suspects in Foster's
murder, and that Douglas County deputies had found books in his residence on
murder/suicide and pornography.

       Phillips-Foster also contends that UNUM's failure to obtain an expert to give
guidance in determining whether Foster committed suicide is a procedural irregularity
significant enough to trigger less deferential review under Woo. Expert testimony is

                                         -16-
required if a subject matter is outside the knowledge or experience of lay people.
Sherbert v. Alcan Aluminum Corp., 66 F.3d 965, 967 (8th Cir. 1995). Where the
ability to make inferences and draw conclusions is within the common knowledge of
a lay person, however, expert testimony is not required. Id. There was abundant
evidence in this case from which to infer that Foster had been involved in his own
death. Two weeks before his death, Foster purchased additional life insurance, listing
Phillips-Foster, Thompson, and Friesner as beneficiaries. Two days prior to his death
he gave Thompson a letter which included his own obituary and instructions for his
burial. On the day before his death, Foster was seen on a surveillance tape entering
a storage unit where a .44 caliber carbine was stored in a cabinet to which he had the
only key. Foster also prepared a farewell tape for his family only hours before his
death. UNUM and Douglas County investigators also learned that Foster's beliefs in
voodoo/Santeria may have led him to seek his own death so that his spiritual powers
would pass to Friesner. Given the numerous indications that Foster had anticipated
and helped bring about his own death, the determination that Foster had committed
suicide with the aid of others could be inferred from the evidence without expert
opinion. We therefore conclude that UNUM did not commit a serious breach of its
fiduciary duty by failing to consult an expert.

       Phillips-Foster also claims that UNUM is entitled to less deferential review
because it did not provide the district court with a complete claims file. Phillips-
Foster says that some documents should have been in the file, but are not. Some of
these are in her appendix,11 including the complete policy, her December 22, 1998
appeal of denial of benefits, UNUM's final determination letter dated March 3, 1999,
an apartment lease signed by her and Foster for a term starting August 1, 1997, a
complete autopsy report, a family court record, and two law review articles relating

      11
        UNUM has moved to strike the material in Phillip-Foster's appendix which
was outside the administrative record. Since some of these documents – such as
Phillips-Foster's appeal and UNUM's final determination letter – should clearly have
been in the claims file, the motion to strike should be denied.

                                        -17-
to the use of psychological autopsies in deciding the issue of suicide. The State Farm
statements which were reviewed by UNUM's adjuster are neither in the claims file nor
in her appendix, however. Phillips-Foster alleges that, except for the law review
articles, all these documents were submitted to UNUM, generated by it, or directly
referenced in its record. Our examination of the disputed materials in the appendix
leads us to conclude that they are neither particularly helpful nor persuasive for either
side, and they do not establish a breach of fiduciary duty by UNUM.

       After a thorough review, we are persuaded as a matter of law that the cited
irregularities, whether taken individually or in the aggregate, do not rise to the level
of serious breaches of UNUM's fiduciary duty. Phillips-Foster has thus failed to
satisfy the second part of the Woo test and has not shown that a sliding scale analysis
would be appropriate. We therefore conclude that the district court did not err by
reviewing the plan administrator's decision under an abuse of discretion standard.

                                           C.

       Phillips-Foster contends that the plan administrator abused her discretion, by
withholding the basic life benefit and by invoking the suicide exclusion to deny
benefits on the supplemental and AD&D coverage, because her decisions were not
supported by substantial evidence. See Donaho, 74 F.3d at 900 n.10. By the time
UNUM issued its denial of coverage in December, 1998, its plan administrator had
numerous pieces of evidence to support the conclusion that Foster had been involved
in his own death and that Phillips-Foster had played some role in it. Two weeks prior
to his death, Foster had taken out a new life insurance policy and drafted a new will.
In the days immediately preceding his death, he had written his own obituary, made
a goodbye videotape to his family, and visited the locker where a .44 caliber carbine
was stored. It was also known that Foster was interested in voodoo/Santeria, and
various people reported that Foster had talked about inflicting his death and how it
was necessary for his soul to pass to Friesner. UNUM also uncovered evidence that

                                          -18-
Foster had been treated for depression, had suffered recent financial setbacks, and had
possibly made a suicide gesture in the past. Douglas County investigators reported
to UNUM their suspicions that Phillips-Foster, Thompson, and Friesner were
involved in Foster's death and that they had displayed no interest in learning how or
where Foster had died. They had also attempted to direct the focus of the
investigation toward Frazier and Bailey, and all three stood to gain from Foster's life
insurance policies.

       Under the abuse of discretion standard, the reasonableness or unreasonableness
of a plan administrator's decision can be assessed "by both the quantity and quality
of the evidence supporting it." Id. at 900. In light of the extent and weight of the
evidence collected by UNUM, we conclude that the plan administrator did not abuse
her discretion when she decided not to pay benefits to Phillips-Foster based on the
suicide exclusion and factors suggesting that she was ineligible to receive the basic
life benefit under Minn. Stat. Ann. § 524.2-803. The district court therefore did not
err in granting summary judgment to UNUM, and its cross appeal on the total dollar
amount of benefits Phillips-Foster could obtain under the supplemental insurance is
moot.

                                          D.

      For these reasons, we affirm the judgment in favor of UNUM and dismiss its
cross appeal as moot. The motion to strike those portions of Phillips-Foster's
appendix outside the administrative record is denied.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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