     Case: 16-11660    Document: 00514186525   Page: 1   Date Filed: 10/06/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                No. 16-11660                           FILED
                                                                 October 6, 2017
                                                                  Lyle W. Cayce
ROBERT RAMIREZ,                                                        Clerk

             Plaintiff–Appellant,

v.

UNITED OF OMAHA LIFE INSURANCE COMPANY,

             Defendant–Appellee.



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


Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Robert Ramirez traveled to West Texas and contracted a fungal infection
that ultimately resulted in the removal of one of his eyes. He sought benefits
under an accidental death and dismemberment and life insurance policy
provided by his employer.     The insurer, United of Omaha Life Insurance
Company (United), denied the claim, and Ramirez filed suit. The district court
granted summary judgment in favor of United, holding that Ramirez’s
infection was not an “Accident” within the meaning of the policy. Ramirez has
appealed. We affirm.
                                      I
      We assume that the facts are as Ramirez has presented them. He was
employed by MS International, Inc. and traveled to West Texas twice in
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November 2013. Following these trips, Ramirez developed a fungal infection
in his right eye that was diagnosed as coccidioidomycosis, also known as valley
fever. Medical providers determined that contact with a West Texas fungus
called Coccidioides caused the infection. The infection led to progressive loss
of vision in Ramirez’s eye, and physicians ultimately removed that eye in
October 2014. For purposes of United’s summary judgment motion, the parties
assume that Ramirez contracted coccidioidomycosis by inhaling fungal spores
on his West Texas work trips.
      He was covered under an employee benefits insurance plan, which is
subject to the Employee Retirement Income Security Act (ERISA), 1 and the
plan included an “Accidental Death and Dismemberment and Life Insurance
Policy” (the policy) issued by United. Ramirez submitted a claim for the loss
of his eye.          The policy provides that “[t]he [Accidental Death and
Dismemberment] Benefit is paid if an employee is injured as a result of an
Accident, and that Injury is independent of Sickness and all other causes.” The
policy specifies that it “will not pay for any loss which . . . does not result from
an Accident.” The policy defines Accident, Injury, and Sickness as follows:
             Accident means a sudden, unexpected, unforeseeable 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. Accident does include
      bacterial infection that is the natural and foreseeable result of an
      accidental external bodily Injury or accidental food poisoning.

            Injury means an accidental bodily injury which requires
      treatment by a Physician. It must result in loss independently of
      Sickness and other causes.




      1   29 U.S.C. § 1001, et seq.
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             Sickness means a disease, disorder or condition, which
       requires treatment by a Physician.
       United denied Ramirez’s claim, stating in part that “the loss of sight was
not due to an Accident as defined by the policy independent of Sickness and all
other causes.” Ramirez filed an administrative appeal, and United upheld the
claim denial.         Ramirez then filed this suit pursuant to 29 U.S.C.
§ 1132(a)(1)(B).
                                               II
       “Standard summary judgment rules control in ERISA cases.” 2                           We
review a grant of summary judgment de novo, applying the same standards as
the district court. 3 Summary judgment is warranted “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.” 4 The facts of this case are undisputed, and
both parties agree that a de novo standard of review applies in this case.
       We note that in suits brought under 29 U.S.C. § 1132(a)(1)(B), district
courts generally review the denial of disability-benefits claims de novo when
the administrator or fiduciary does not have discretionary authority to
determine eligibility for benefits or to construe the terms of the plan. 5 But if
the benefits plan “gives the administrator or fiduciary discretionary authority
to determine eligibility for benefits or to construe the terms of the plan,” the
denial of benefits is reviewed for an abuse of discretion. 6 The district court was



       2 Cooper v. Hewlett-Packard Co., 592 F.3d 645, 651 (5th Cir. 2009) (quoting Vercher v.
Alexander & Alexander Inc., 379 F.3d 222, 225 (5th Cir. 2004)).
       3 Mabry v. Lee Cnty., 849 F.3d 232, 234 (5th Cir. 2017).
       4 FED. R. CIV. P. 56(a).
       5 See Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 137 (5th Cir. 2016) (first citing

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); then quoting Holland v. Int'l
Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir.2009)). But see Ariana M. v. Humana Health
Plan of Tex., Inc., 854 F.3d 753 (5th Cir. 2017), reh’g en banc granted, 869 F.3d 354 (5th Cir.
July 10, 2017) (considering the proper standard of review in ERISA cases).
       6 Id.

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uncertain of the proper standard of review, twice referencing an arbitrary or
capricious standard. However, even applying a de novo standard, the district
court correctly construed the policy as applied to the facts of this case.
                                            III
       The parties’ dispute focuses on whether Ramirez’s fungal infection was
a “Sickness” and whether the loss of his eye was the result of an “Accident” as
defined by the policy. Federal common law governs the interpretation of all
ERISA-regulated plan provisions. 7               Under federal common law, courts
construing ERISA plan provisions “are to give the language of an insurance
contract its ordinary and generally accepted meaning if such a meaning
exists.” 8 “Only if the plan terms remain ambiguous after applying ordinary
principles of contract interpretation are [courts] compelled to apply the rule of
contra proferent[e]m and construe the terms strictly in favor of the insured.” 9
       The policy uses the term “Sickness” in three provisions pertinent to
Ramirez’s claim: The policy states that “Accident” does not include “Sickness”;
requires that an “Accident” be “independent of Sickness”; and requires that an
“Injury” “result in loss independently of Sickness.” The definition of “Accident”
further provides that the term does not include “disease, bodily or mental
infirmity or medical treatment thereof.”
                                             A
       We conclude that, under ordinary principles of contract interpretation, a
fungal infection such as coccidioidomycosis falls squarely within the definition
of “Sickness” and that the loss of an eye as a result of such a fungal infection




       7 Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 331 (5th Cir. 2014).
       8 Id. (quoting Provident Life & Accident Ins. Co. v. Sharpless, 364 F.3d 634, 641 (5th
Cir. 2004)).
       9 Id. (quoting Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997)).

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is not an “Accident” within the meaning of the policy. The district court did
not err in concluding that Ramirez was not entitled to benefits.
       The policy does not define disease, disorder, or condition, so the words
are given their ordinary meaning. 10                 Coccidioidomycosis comes within the
commonly understood meaning of a “disease, disorder or condition, which
requires treatment by a Physician.” Additionally, sources such as Black’s Law
Dictionary define disease as “[a] deviation from the healthy and normal
functioning of the body” and “[a]ny disorder; any depraved condition.” 11
       The Centers for Disease Control, cited by both parties, supports this
everyday usage of the policy terminology, describing coccidioidomycosis as a
“type[] of fungal disease” that can make people “sick.” 12 Additionally, both
parties cite a portion of a report from Dr. Martin Shapiro, a board-certified
ophthalmologist, stating: “To be perfectly clear, Mr. Ramirez suffered a
sickness (called Coccidiomycosis or ‘Valley Fever’) that he acquired through
fungal spore inhalation which eventually disseminated to his right eye.”
Ramirez relies on this sentence as proof that the infection caused the loss of
sight and only contests the portion of Dr. Shapiro’s report that states the injury
was not an “Accident” under the policy.                  He does not challenge Shapiro’s
description of the infection as a sickness. Under the ordinary and generally
accepted meaning of the policy’s language, coccidioidomycosis is a disease




       10  Green, 754 F.3d at 332.
       11  Disease, BLACK’S LAW DICTIONARY 567 (10th ed. 2014); see also Disease, WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 648 (2002) (“[A]n impairment of the normal state of
the living animal or plant body or of any of its components that interrupts or modifies the
performance of the vital functions, being a response to environmental factors . . . to specific
infective agents . . . to inherent defects of the organism . . . or to combinations of these factors
: SICKNESS, ILLNESS”).
        12 CTRS. FOR DISEASE CONTROL, VALLEY FEVER AND THE EXPANDING GEOGRAPHIC

RANGE OF COCCIDIOIDES (2016).
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                                  No. 16-11660
within the policy’s definition of “Sickness.” Loss of sight from this fungal
infection was not “independent of Sickness,” and it is not covered by the policy.
                                        B
      Ramirez contends that coccidioidomycosis is not a “Sickness.” He asserts
that coccidioidomycosis is instead an “Accident” independent of “Sickness” and
that it caused his loss of sight. Ramirez’s arguments are unpersuasive.
      Ramirez asserts that the policy removes only bacterial and viral
infections from the definition of “Accident” and therefore that “Accident” must
include other microbial sources of infection, including fungus.          Ramirez
interprets “Accident” as including all infections that cause injury other than
“bacterial or viral infection.”
      The policy provides that “Accident” “does not include Sickness, disease,
bodily [] infirmity or medical [] treatment thereof, bacterial or viral infection,
regardless of how contracted.” Ramirez relies on an implication for his position
that a fungal infection comes within the term “Accident,” because the definition
of “Accident” does not expressly mention fungal infection but does expressly
provide that a bacterial or viral infection cannot constitute an “Accident.”
However, other terms, such as a “bodily or mental infirmity” and “Sickness,”
encompass a fungal infection, and therefore, the provision regarding bacterial
or viral infections cannot be read to remove fungal infections by implication
from those terms.
      Ramirez asserts that a fungal infection is an “Accident” covered by what
he describes as the policy’s “carve-back” provision.       That provision brings
within coverage a “bacterial infection that is the natural and foreseeable result
of an accidental external bodily injury” and “accidental food poisoning,” even
though they would otherwise be excluded as “Sickness,” “disease,” or “bacterial
or viral infection[s].” However, neither the policy’s language nor its structure
indicates that this provision applies beyond these two specific occurrences.
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      Ramirez contends that the policy must cover a fungal infection because
a fungal infection is analogous to food poisoning. Fungal infections, like food
poisoning, are unpredictable in contraction and effect and require medical care.
The policy expressly defines an “Accident” as including “accidental food
poisoning.” However, to construe the accidental death and dismemberment
policy as Ramirez urges us to do would mean that the flu, strep throat, fungal
pneumonia, and many other bacterial, viral, and fungal infections would also
be analogous conditions because they too are unpredictable and require
medical care. The ordinary meaning of the policy language provides no support
for including fungal infection in the provision that includes accidental food
poisoning within the definition of “Accident.”
      Ramirez argues that the definition of “Sickness” must be limited to
preexisting sicknesses. He asserts that to conclude otherwise means that
virtually all injuries could be considered a “Sickness” if the employee requires
any treatment from a physician prior to the actual dismemberment. But the
definitions of “Accident,” “Injury,” and “Sickness,” when considered as a whole,
make clear that if an employee were to suffer the near loss of a limb, for
example, and were eventually to lose the limb after prolonged treatment by a
physician, there would be coverage. The policy’s extension of coverage does not
turn on whether the death or loss was caused by a condition that arose after
the inception of the policy. Rather, the nature and cause of the loss determine
whether there is coverage.
                                       C
      The contra proferentem rule does not apply because the policy terms are
unambiguous. Therefore, we need not construe the policy against United.
      If the policy language is ambiguous, then the court should construe the
policy against the drafter, United, under the rule of contra proferentem. We
may consider Texas law in this federal-common-law case to determine the
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applicable federal common law. 13                   “Whether an insurance contract is
ambiguous is a question of law for the court to decide by looking at the contract
as a whole . . . .” 14 “A contract is unambiguous if it can be given a definite or
certain legal meaning.” 15 “Ambiguity does not arise because of a ‘simple lack
of clarity,’ or because the parties proffer different interpretations of the
contract.” 16   But a contract is ambiguous if “it is subject to two or more
reasonable      interpretations       after     applying        the     pertinent   canons     of
construction.” 17 However, the policy language is unambiguous “after applying
ordinary principles of contract interpretation.” 18
                                                D
       Ramirez vaguely asserts that the sudden contact with the fungus itself
is an “Accident” that the policy should cover. Even if we were to agree that the
acute inhalation of the fungal spores was “a sudden, unexpected, unforeseeable
and unintended event,” the resulting loss of his eye was not “independent of
Sickness” as defined in the policy.
                                       *        *         *
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       13  See Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997) (“[W]e may draw
guidance from analogous state law in ascertaining the applicable federal common law . . . to
the extent that it is not inconsistent with congressional policy concerns.” (brackets, citations,
and quotation marks omitted).
        14 Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 291 (5th Cir. 2005) (citing Kelley-Coppedge,

Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998)).
        15 McLane Foodservice, Inc. v. Table Rock Rests., LLC, 736 F.3d 375, 378 (citing J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)).
        16 Id. (quoting DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999)).
        17 Id. (citing Webster, 128 S.W. 3d. at 229).
        18 Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 331 (5th Cir. 2014) (quoting Wegner

v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997)).
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