                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                           File Name: 06a0368p.06

                       UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                    X
                              Plaintiff-Appellant, -
 BRUCE OSBORNE,
                                                     -
                                                     -
                                                     -
                                                         No. 05-5536
          v.
                                                     ,
                                                      >
 HARTFORD LIFE AND ACCIDENT INSURANCE                -
                                                     -
                             Defendant-Appellee. -
 COMPANY,

                                                     -
                                                    N
                      Appeal from the United States District Court
                   for the Western District of Tennessee at Memphis.
                    No. 02-02140—J. Daniel Breen, District Judge.
                                         Argued: March 14, 2006
                                  Decided and Filed: October 3, 2006
                    Before: COLE, GILMAN, and FRIEDMAN, Circuit Judges.*
                                           _________________
                                                 COUNSEL
ARGUED: Don L. Hearn, Jr., GLANKER BROWN, Memphis, Tennessee, for Appellant. David
A. Thornton, BASS, BARRY & SIMS, Memphis, Tennessee, for Appellee. ON BRIEF: Don L.
Hearn, Jr., John I. Houseal, Jr., GLANKER BROWN, Memphis, Tennessee, for Appellant. David
A. Thornton, BASS, BARRY & SIMS, Memphis, Tennessee, for Appellee.
         FRIEDMAN, J., delivered the opinion of the court, in which GILMAN, J., joined. COLE,
J. (pp. 6-8), delivered a separate dissenting opinion.
                                           _________________
                                               OPINION
                                           _________________
        FRIEDMAN, Circuit Judge. The ultimate question in this appeal is whether an insurance
company that was both the administrator of a disability benefits plan under the Employment
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., and the issuer of the
disability insurance policy thereunder, justifiably terminated disability benefits based on its
determination that the disability had ended. The answer turns principally on the meaning of the

        *
           The Honorable Daniel M. Friedman, Circuit Judge of the United States Court of Appeals for the Federal
Circuit, sitting by designation.


                                                       1
No. 05-5536           Osborne v. Hartford Life and Accident Ins. Co.                           Page 2


insured’s “own occupation” as used in the disability insurance policy. The district court upheld the
insurance company’s application of that term. We affirm.
                                                   I
        In 1996 the appellant Bruce Osborne was the Chairman of the Board and President of Insurex
Agency, Inc, and Insurex Benefits Administrators, Inc. (collectively “Insurex”), which his brief
describes as “a small insurance agency and administrative company.” Insurex was a wholly-owned
subsidiary of TPI Restaurants, Inc., which operates the “Shoney’s” chain of restaurants. Osborne
was a participant in Shoney’s ERISA plan, which included disability insurance. The appellee
Hartford Life and Accident Insurance Co. (“Hartford”) was both the administrator of the ERISA
plan and the issuer of the disability insurance policy. The disability policy provided coverage if
Osborne became “Totally Disabled,” defined under the plan as “prevented by Disability from doing
all the material and substantial duties of your own occupation on a full time basis.”
       According to the job description, Osborne had the following duties as president of Insurex:
       Responsible for the sales and marketing of new clients that entails extensive
       traveling. Negotiating with insurance companies on quotes for proposals and
       renewal rates. Providing customer service and assistance to the existing clients.
       Meeting with brokers to discuss prospective clients and existing clients. Oversee the
       internal functions of the company, staff and production issues.
       In 1996, Osborne suffered a severe heart attack. He resigned as president of Insurex in that
month, but continued as Chairman of the Board. Hartford began disability payments to him. Prior
to 1994, Osborne had travelled approximately two weeks out of the month. In the last year of his
employment, Osborne curtailed traveling to approximately one week every other month.
        Following preliminary and more detailed investigations, Hartford concluded in 2001 that
Osborne was no longer disabled and terminated his benefit payments. The preliminary investigation
had indicated that Osborne was playing golf and cards at his country club. During the investigation
Osborne had told Hartford that he played 70-80 rounds of golf a year. He also had been seen on
three occasions playing cards at the country club for several hours.
        Hartford wrote Osborne that it intended to terminate his disability benefits “based . . . on
policy language and all the documents contained in [Osborne’s] claim file . . . .” Hartford stated that
it had determined that under the United States Department of Labor’s Dictionary of Occupational
Titles (“the Dictionary”), Osborne’s former position with Insurex was classifiable as “President,
Financial Institution,” which was a sedentary position whose work Osborne could perform.
        Osborne administratively appealed that decision within Hartford. Hartford then had Dr. Vita,
a cardiologist, review Osborne’s file. Dr. Vita concluded that Osborne could perform the sedentary
work that Hartford had concluded Osborne’s position involved. Dr. Vita’s conclusion was contrary
to that given by Osborne’s treating physician, Dr. Newman. Hartford adhered to its decision that
Osborne no longer was disabled.
       Osborne filed the present suit challenging Hartford’s decision in a Tennessee state court.
Hartford removed the case to the United States District Court for the Western District of Tennessee
pursuant to ERISA’s complete preemption provision, 29 U.S.C. § 1144(a).
         The district court granted Hartford’s motion for judgment on the record and dismissed the
case. It ruled that Hartford’s reliance upon the Dictionary as a basis for determining the meaning of
“own occupation” in the insurance policy was not arbitrary or capricious, and that Hartford’s
determination that Osborne no longer was disabled was reasonable.
No. 05-5536            Osborne v. Hartford Life and Accident Ins. Co.                             Page 3


                                                    II
        Hartford’s termination of Osborne’s disability payments - because he was once again able
to perform the duties of his position and therefore no longer was disabled - rested on the following
rulings: (1) the basis for determining his “occupation” was the Dictionary; (2) under the Dictionary
his “occupation” was “President, Financial Institution”; and (3) this was a sedentary position whose
duties he could perform. Hartford’s determination that Osborne could perform those duties rested
on its resolution of conflicting medical opinions.
        Osborne’s principal contention in this appeal is that Hartford improperly relied on the
Dictionary in determining his “occupation.” He contends that instead Hartford should have looked
to the actual work he performed at Insurex which, he contends, involved substantial travel and
required mobility by the performer.
       Resolution of this issue implicates ERISA, the ERISA plan and the Hartford disability
insurance contract that was part of that plan.
        ERISA itself provides no light on the point. It defines “employee welfare benefit plan” and
“welfare plan” to include any plan “providing for its participants . . . through the purchase of
insurance . . . benefits in the event of . . . disability. . . .” 29 U.S.C. § 1002(1). An insurance
company that issues an insurance policy under an ERISA plan may serve as the administrator of the
plan, see Kalish v. Liberty Mutual/Liberty Life Assur. Co. Of Boston, 419 F.3d 501 (6th Cir. 2005),
which is a fiduciary position, see 29 U.S.C. § 1104.
        The ERISA plan provides for disability insurance coverage. Pursuant to this plan, Hartford
issued a group insurance disability policy. The policy provides for payment of benefits during the
time an employee is “Totally Disabled.” § V, Art. 1. Benefits will be paid until the employee is “no
longer Disabled.” Id.
        Section I of the policy defines “Totally Disabled” to mean that
        you are prevented by Disability from doing all the material and substantial duties of
        your own occupation on a full time basis.
       The insurance policy also provides that Hartford “has full discretion and authority to
determine eligibility for benefits and to construe and interpret all [of its] terms and provisions.” Id.
The policy, however, does not state the basis upon which Hartford will determine disability, i.e.,
whether an employee is unable to perform the duties of the employee’s “own occupation.”
       In light of the insurance policy’s provisions relating to Hartford’s making disability
determinations, we conclude that the policy contemplates that Hartford will have broad discretion
in determining what is an employee’s “own occupation,” including the basis for making that
determination.
         As the district court stated and as Osborne recognized, the ERISA plan in this case, which
“gives the administrator . . . discretionary authority to determine eligibility for benefits,” is reviewed
to determine whether Hartford’s action is arbitrary and capricious. Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989). This standard applies to Hartford’s decision to use the Dictionary
to determine Osborne’s “own occupation.” Here, as the district court ruled, “the policy in this action
grants Hartford full discretion and authority to determine eligibility for benefits and to construe the
terms of the plan.” The district court correctly recognized that “[t]he arbitrary or capricious standard
is a ‘highly deferential standard of review.’ Yeager v. Reliance St. Life Ins. Co., 88 F.3d 376, 380
(6th Cir. 1996).”
No. 05-5536           Osborne v. Hartford Life and Accident Ins. Co.                           Page 4


        We agree with the district court that Hartford’s use of the Dictionary to determine Osborne’s
“own occupation” was not arbitrary and capricious, but on the contrary was “reasonable.” The word
“occupation” is sufficiently general and flexible to justify determining a particular employee’s
“occupation” in light of the position descriptions in the Dictionary rather than examining in detail
the specific duties the employee performed. “Occupation” is a more general term that seemingly
refers to categories of work than narrower employment terms like “position,” “job,” or “work,”
which are more related to a particular employee’s individual duties. Although reasonable persons
may disagree over the most appropriate methodology for determining a particular employee’s
“occupation,” we cannot say that Hartford transgressed the boundaries of its broad discretion under
its insurance policy and the ERISA plan to make disability determinations. Cf. Gallagher v.
Reliance Std. Life Ins. Co., 305 F.3d 264, 272 (4th Cir. 2002) (stating that use of a Dictionary job
description is an acceptable reference when the description “involve[s] comparable duties”).
       Apparently this court has no published opinion addressing this issue. Our unpublished
opinion in Schmidlkofer v. Directory Distrib., Assoc., Inc., 107 Fed. Appx. 631, No. 03-5755, 2004
WL 192184 (6th Cir. August 25, 2004), supports our conclusion here. There, this court noted that
“[m]any courts have upheld a plan administrator’s interpretation of ‘regular occupation’ as meaning
a general occupation rather than a particular position with a particular employer.” Id. at 633.
        In that case an insurance company had terminated disability benefits because, relying on the
Dictionary, it concluded that the employee no longer was disabled since she was able to perform the
duties of her “regular occupation” - the “totally disabled” standard under the policy there involved.
This court reversed the district court’s rejection of the insurance company’s ruling. It held that the
insurance company’s “interpretation of ‘regular occupation’ as meaning Schmidlkofer’s occupation
as a branch manager, rather than her former position at Directory Distributing, is rational in light of
the policy’s provisions.”
        The only possibly significant distinction between that case and the present one is that there
the policy term was “regular occupation” and here it is “own occupation.” That relatively minor
difference in language does not warrant a different result. The critical issue in both cases is whether
the insurance company acted reasonably and rationally in relying on the Dictionary to determine the
employee’s “occupation.”
       Osborne contends that the policy language should be construed against its drafter Hartford.
See University Hosps. v. Emerson Elec. Co., 202 F.3d 839, 846-47 (6th Cir. 2000) (applying contra
proferentum to ERISA contract). We apply the doctrine of contra proferentum, however, only if
the contract term is ambiguous. See Perez v. Aetna Life Ins., 150 F.3d 550, 557 n.7 (6th Cir. 1998)
(en banc).
        This case does not involve the interpretation of ambiguous contractual language that should
be construed against the drafter of the contract. The dispute before us is not over the meaning of
“own occupation,” which defines the term “Total Disability,” but over the methodology Hartford
used to determine Osborne’s occupation. Even if the doctrine of contra proferentum applies in
interpreting ERISA plans, the doctrine does not apply here.
         Osborne also argues that Hartford’s methodology was arbitrary and capricious because of
the inherent conflict of interest in Hartford’s dual role as the administrator of the ERISA plan and
the issuer of the insurance policy under the plan. The district court properly rejected this contention
because, as recognized in Peruzzi v. Summa Medical Plan, Osborne needed to provide “significant
evidence” that the alleged conflict of interest influenced Hartford’s decision. 137 F.3d 431, 433 (6th
Cir. 1998). Osborne has not done so. The sole basis of his conflict of interest claim is the
institutional one of Hartford’s dual capacity.
No. 05-5536           Osborne v. Hartford Life and Accident Ins. Co.                            Page 5


                                                  III
        In his reply brief, Osborne argues that he “is not the President of a Financial Institution, but
the president of a small insurance agency and essentially a full-time sales agent.” He contends that
“The Hartford had available in the [Dictionary] a more accurate description of Osborne’s
occupation[,]” namely, “Sales Agent, Insurance.”
        Osborne, who was represented by counsel before both this court and the district court, did
not make this argument in his opening appellate brief. There, his argument was that Hartford’s
denial of Osborne’s disability benefits was arbitrary and capricious because Hartford “failed to
consider the duties of Mr. Osborne’s actual occupation. Mr. Osborne’s actual job duties required
extensive traveling and extremely long hours,” and instead “applied the [Dictionary] definition of
‘President, Financial Institution’ to describe Mr. Osborne’s occupation as one that was ‘sedentary.’”
(Osborne raised only that question in his “Statement of Issues for Review.”) Although Osborne
stated that “[t]here was no reason” and “no evidence” for Hartford “to assume that [Hartford’s
choice of Dictionary definition] described” Osborne’s actual job, other than “its conflict o[f]
interest,” he never argued that this itself was a reason for reversing the district court. Similarly, he
did not make the argument before the district court, which may explain the district court’s failure
to discuss it. Indeed, his failure to raise the issue there resulted in the lack of a fully developed
factual record on the point.
        We ordinarily do not entertain an argument first made in a reply brief. Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 318 (6th Cir. 2005). Although this court apparently has recognized
an exception to this principle for legal issues, see, e.g., Logan v. Denny’s Inc., 259 F.3d 558, 570,
n.6 (6th Cir. 2001), Osborne’s new argument that he was not the president of a financial institution
is primarily factual. See also Taft Broad. Co. v. United States, 929 F.2d 240, 243-45 (6th Cir. 1991)
(discussing when this court will consider an issue not raised in the district court). Osborne offers no
excuse or explanation for his untimely raising the issue. His argument comes too late, and we
decline to consider it.
        In the first part of his reply brief, under the caption “Standard of Review,” Osborne argues
at considerable length that, on the merits, Hartford’s conclusion that his disability had ended was
arbitrary and capricious. Once again, this is a new argument that Osborne had not made in his
opening appellate brief which, as noted, challenged as arbitrary and capricious only Hartford’s
reliance on the Dictionary to determine Osborne’s “own occupation.” Like his argument that he was
not the president of a financial institution, we decline to consider this untimely new contention.
        Calvert v. Firstar Finance, Inc., 409 F.3d 286 (6th Cir. 2005), on which Osborne relies in
that argument, does not aid him. In Calvert, there was no question of the insurance company’s
reliance on the Dictionary, which it did not do in terminating the employee’s benefits. The sole
question in Calvert was whether, considering all the circumstances, such termination was arbitrary
and capricious. In reversing the district court’s ruling in favor of the insurance company, this court
decided only that the termination was arbitrary and capricious. This court did not say anything
about reliance on the Dictionary as a basis for determining the employee’s “own occupation,” which
was not the issue in Calvert.
                                           CONCLUSION
       The judgment of the district court dismissing the complaint is affirmed.
No. 05-5536           Osborne v. Hartford Life and Accident Ins. Co.                              Page 6


                                         ________________
                                             DISSENT
                                         ________________
         R. GUY COLE, JR., Circuit Judge, dissenting. I respectfully dissent because I believe that
the plain language of the disability policy compelled Hartford to consider Osborne’s actual job
duties as President of Insurex in its review of his continued entitlement to benefits. In addition,
Hartford has failed to provide a reasoned explanation for its reliance on the Dictionary where the
record evidence shows, among other things, that Hartford did not dispute the accuracy or reliability
of the job description provided by Osborne, and Hartford admits that there is a discrepancy between
the significant travel required by Osborne’s actual position and the Dictionary’s classification of his
occupation as sedentary.
                                  I. STANDARD OF REVIEW
        The majority correctly states that our review of Hartford’s decision to terminate Osborne’s
disability benefits is governed by the “arbitrary and capricious” standard. This standard has been
described as “the least demanding form of judicial review of administrative action.” Calvert v.
Firstar Fin., Inc., 409 F.3d 286, 292 (6th Cir. 2005). “When it is possible to offer a reasoned
explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or
capricious.” Id. (internal citation omitted). However, as we recently noted in Moon v. Unum
Provident Corp., 405 F.3d 373, 379 (6th Cir. 2005),
        merely because our review must be deferential does not mean our review must also
        be inconsequential. While a benefits plan may vest discretion in the plan
        administrator, the federal courts do not sit in review of the administrator’s decisions
        only for the purpose of rubber stamping those decisions . . . Indeed, deferential
        review is not no review, and deference need not be abject.
                                          II. DISCUSSION
        Osborne’s disability policy with Hartford provides that he is eligible to receive long-term-
disability payments if he is “totally disabled.” Under the policy, “Totally Disabled means you are
prevented by Disability from doing all the material and substantial duties of your own occupation
on a full time basis.” The question is whether, where the policy does not define “your own
occupation,” it was reasonable for Hartford to fix the meaning of Osborne’s “own occupation” by
reference to the Dictionary definition for “President, Financial Institution,” to the exclusion of
Osborne’s actual job duties.
        As an initial matter, the majority cites this Court’s unpublished opinion in Schmidlkofer v.
Directory Distrib. Assocs., Inc., 107 Fed. Appx. 631 (6th Cir. 2004), in support of its decision that
Hartford did not exceed its discretion in relying on the Dictionary. In Schmidlkofer, this Court
concluded that it was rational for the defendant insurer to consult the Dictionary to determine the
nature of the plaintiff’s occupation, rather than look to her specific duties as manifested in her actual
job. Id. at 634; but see Lasser v. Reliance Standard Life Ins. Co., 344 F.3d 381, 386 (3d Cir. 2003),
cert. denied, 541 U.S. 1063 (2004) (holding that “[b]oth the purpose of disability insurance and the
modifier ‘his/her’ before ‘regular occupation’ make clear that ‘regular occupation’ is the usual work
that the insured is actually performing immediately before the onset of disability”). The policy
language at issue in Schmidlkofer was “regular occupation,” not “own occupation,” like that here.
The majority dismisses this distinction as a “relatively minor difference in language [that] does not
warrant a different result.” I respectfully disagree.
No. 05-5536           Osborne v. Hartford Life and Accident Ins. Co.                            Page 7


        Whatever the meaning of “regular” is, it is not synonymous with “own.” Mizzell v. The Paul
Revere Life Ins. Co., 118 F. Supp. 2d 1016, 1021 (C.D. Cal. 2000) (commenting, while comparing
a disability policy that spoke in terms of the claimant’s “regular occupation,” with one that spoke
in terms of the claimant’s “own occupation,” that “[i]f anything, the phrase ‘regular’ seems more
general in nature than ‘own’”). Used as an adjective, as it is here, “own” means “belonging to
oneself or itself”; “used to specify an immediate or direct relationship.” Webster’s Third New
International Dictionary 1612 (1986). Construing the policy language according to its “plain
meaning in an ordinary and popular sense” then, “own occupation” refers to Osbourne’s actual job
duties. Williams v. Int’l Paper Co., 227 F.3d 706, 711 (6th Cir. 2000). If it was otherwise, if the
policy language really meant the generic responsibilities associated with Osbourne’s occupation,
there would have been no reason to include the word “own.” The same meaning could have been
accomplished by couching the definition of “total disability” in terms of “your occupation,” rather
than “your own occupation.” This Hartford did not do. As a result, it seems to me that we ought
not render “own” surplusage by reading it out of the policy language. See Union Inv. Co. v. Fid. &
Deposit Co. of Md., 549 F.2d 1107, 1110 (6th Cir. 1977) (“A contract will not be construed so as
to reject any words as surplusage if they reasonably can be given meaning.”); see also Cunningham
v. The Paul Revere Life Ins. Co., 235 F. Supp. 2d 746, 756 (W.D. Mich. 2002) (interpreting “own
occupation” in a disability policy as referring to the claimant’s actual job duties rather than the
general description contained in the Dictionary); Mizzell, 118 F. Supp. 2d at 1021-22 (same).
       Second, even assuming that the phrase “own occupation” is susceptible to two meanings,
Hartford has failed “to offer a reasoned explanation, based on the evidence,” for relying on the
Dictionary. Calvert, 409 F.3d at 292; see also Lasser, 344 F.3d at 386 (stating that the policy
administrator’s interpretation of ambiguous language must be reasonable to be entitled to deference).
        As part of its initial review of Osborne’s claim for disability benefits, Hartford asked for and
received a job description from Osborne. This job description explained that Osborne traveled
frequently—approximately two weeks out of every month (curtailed to one week every other month
in the year prior to his resignation)—as part of his regular duties. Thus, in 1996 Hartford granted
Osborne’s claim for disability benefits on a record that included the job description provided by
Osborne. Hartford still had Osborne’s job description in hand in 2000 when it undertook its
evaluation of Osborne’s continued entitlement to benefits. Nonetheless, rather than consult
Osborne’s job description, Hartford researched the occupations in the Dictionary, determined that
Osborne’s job most closely matched that of “President, Financial Institution,” and because the
Dictionary classified “President, Financial Institution” as a sedentary position, Hartford terminated
Osborne’s benefits on the grounds that he was capable of performing sedentary work.
        Hartford does not claim that the job description supplied by Osborne outlining his actual
duties was in any way inaccurate or insufficient to enable Hartford to understand the nature of
Osborne’s responsibilities and assess whether he could return to work as President of Insurex.
Hartford also does not dispute that Osborne was required to travel regularly to fulfill his duties. In
fact, Hartford acknowledges the discrepancy between Osborne’s actual travel requirements and the
Dictionary’s classification of “President, Financial Institution” as sedentary, but insists, without any
explanation, that the Dictionary applies: “Although Mr. Osborne’s specific job in the occupation
of a ‘President of a Financial Institution’ may have involved traveling, the occupational
requirements per the DOT Code, does not require traveling.” Finally, the record is devoid of any
evidence that business travel is not in fact a typical feature of Osborne’s occupation as it is
performed by other persons at comparable institutions. See Kinstler v. First Reliance Standard Life
Ins. Co., 181 F.3d 243, 253 (2d Cir. 1999) (holding that the institution where the plaintiff was
employed had to be considered in defining her “regular occupation”); Lasser, 344 F.3d at 387-88
(concluding that survey evidence of other orthopedic surgeons showed that emergency surgery and
being on-call were material aspects of the plaintiff’s occupation). On these facts, I cannot conclude
that Hartford’s reliance on the Dictionary was reasonable.
No. 05-5536          Osborne v. Hartford Life and Accident Ins. Co.                         Page 8


        Accordingly, I would reverse and remand to the district court for consideration of whether,
in light of Osborne’s specific job duties as President of Insurex and the medical evidence in the
record, Hartford’s termination of Osborne’s disability benefits was arbitrary and capricious.
