                  United States Court of Appeals
                       FOR THE EIGHTH CIRCUIT
                               ___________

                               No. 06-3757
                               ___________

James Kenneth McAuley; Terrence     *
Frances McAuley; Matthew Redden     *
McAuley; Aidan Paul McAuley;        *
Kathleen Anne McAuley; Mary         *
Frances Barzee,                     *
                                    *
             Appellants,            *
                                    * Appeal from the United States
       v.                           * District Court for the Eastern
                                    * District of Missouri.
Federal Insurance Company; Chubb    *
Group of Insurance Companies;       *
Anheuser-Busch Employees Benefits   *
Trust; Anheuser-Busch Companies,    *
Inc.,                               *
                                    *
             Appellees.             *
                               ___________

                          Submitted: May 16, 2007
                             Filed: August 31, 2007
                              ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

BEAM, Circuit Judge.
       Plaintiffs-Appellants, the children of decedent Terry McAuley, appeal the
district court's1 decision dismissing their suit for failure to state a claim upon which
relief may be granted. Because the motion to dismiss was converted to, but not
decided as, a motion for summary judgment, we reverse and remand for further
proceedings.

I.    BACKGROUND

      Terry McAuley was employed by Anheuser-Busch as their Military Sales
Director. In the course of his duties, McAuley traveled to Dublin, Ireland, in the
summer of 2004. He returned to the United States on a direct flight from Dublin to
St. Louis, Missouri. Upon arriving in St. Louis, McAuley retired for the evening and
died early the next morning.

       An autopsy identified the cause of McAuley's death as an extensive and massive
acute bilateral pulmonary thromboemboli caused by the development of embolisms
in his leg or legs during the extended flight from Dublin to St. Louis. In layman's
terms, McAuley suffered deep vein thrombosis, which is the development of blood
clots in the lower legs, often associated with extended stasis during airline flights, and
at least one of those clots migrated from his legs to his heart, causing his death.

      During his employment with Anheuser-Busch, McAuley enrolled in the
Anheuser-Busch Employees Benefits Trust ("the Plan"), which is an employee welfare
benefit plan. The Plan provided McAuley with two policies of insurance against
accidental death, one identified as "the Accident Policy" or "Policy A" and the other
as "the Business Travel Accident Policy" or "Policy B." After McAuley's death,
claims were made against both policies. The claims were denied on the basis that the


      1
      The parties consented to have this matter adjudicated by a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c).

                                           -2-
death was not accidental or, in the alternative, that McAuley's death was excluded
from coverage because it was caused by a "bodily malfunction." Plaintiffs appealed
the decisions of denial as permitted by the policies and the Employee Retirement
Income Security Act (ERISA). After defendants-appellees took no action on the
appeal, plaintiffs brought this suit against defendants under ERISA. 29 U.S.C. §
1132(a)(1)(B).

       The defendants subsequently filed a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), alleging that plaintiffs could prove no set of facts showing
that an accident caused McAuley's death. The district court granted the motion,
holding that the formation of clots in McAuley's legs could not be an "accident"
within the meaning of the policy and that, even if it could, the development of the
clots was a "bodily malfunction," thus excluding coverage.

II.   DISCUSSION

        We review de novo the district court's decision to dismiss plaintiffs' complaint.
Knieriem v. Group Health Plan, Inc., 434 F.3d 1058, 1060 (8th Cir.), cert. denied, 126
S. Ct. 2969 (2006). A district court considering a motion to dismiss under Rule
12(b)(6) accepts all factual allegations in the complaint as true. E.g., Botz v. Omni Air
Int'l, 286 F.3d 488, 490 (8th Cir. 2002). The motion will "succeed or fail based upon
the allegations contained in the face of the complaint." Gibb v. Scott, 958 F.2d 814,
816 (8th Cir. 1992).

       We have previously held that "Rule 12(b)(6) itself provides that when matters
outside the pleadings are presented and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in Rule 56." Hamm
v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 948 (8th Cir. 1999). Such
"matters outside the pleadings" include both statements of counsel at oral argument
raising new facts not alleged in the pleadings, id., and "'any written or oral evidence

                                          -3-
in support of or in opposition to the pleading that provide some substantiation for and
does not merely reiterate what is said in the pleadings.'" Gibb, 958 F.2d at 816
(quoting Wright & Miller, Federal Practice and Procedure § 1366).

        Among other basic facts, plaintiffs' complaint alleged that McAuley was
enrolled in the Plan; that the Plan included two accidental loss of life policies; that
those policies covered "accidents" including, but not limited to, "unavoidable
exposure to elements arising from a covered hazard;" that McAuley took a lengthy
flight; that "[t]he extensive and massive acute bilateral pulmonary thromboemboli
suffered by McAuley was a result of embolisms, or blood clots, that formed in his
leg(s) during the extended airplane flight;" and that the resulting death was accidental
in that it was a sudden and unexpected occurrence that resulted from the extended
flight.

      However, despite the fact that the complaint contained no mention of "stasis,"
and thus, of course, no reference to the unavoidability of exposure to stasis; no
mention of McAuley's prior health; and no mention of the health of any other
passengers on the flight, the district court, in its order granting the motion to dismiss,
held that "the argument that Mr. McCauley [sic] was 'exposed' to 'stasis' [is]
meaningless." The court also noted that "[n]othing prevents an airline passenger from
moving around or getting up and walking during the course of a long flight."2 The
court also noted that it was likely McAuley suffered a "bodily malfunction," thus




      2
        Even if we were to review this motion as a properly decided motion to dismiss,
rather than a converted motion for summary judgment, there are reasonable inferences
that could support the unavoidability of the exposure to stasis. For instance, weather
related turbulence could have prevented "getting up and walking" during the flight,
thus making the exposure to stasis unavoidable.

                                           -4-
excluding coverage, because "[a]fter all, other passengers on the same flight did not
develop fatal pulmonary embolisms."3

       As explained above, the complaint did not include any reference of an exposure
to stasis, or facts regarding the unavoidability of the exposure to stasis, or any
reference to the health of the other passengers. Because we assume the district court
did not simply fabricate these facts, the court must have been referencing argument
and evidence from some source outside the four corners of the complaint. Thus, the
district court's failure to exclude these matters converted the motion to dismiss into
a request for summary judgment.

       While the district court styled its order as one granting a motion to dismiss
under Rule 12(b)(6), by considering matters outside the pleadings, the motion should
have been considered under Rule 56. "The district court's failure to treat the motion[]
as [a motion] for summary judgment and to provide the parties with notice and an
opportunity to provide further materials requires reversal unless the failure constituted
harmless error." Gibb, 958 F.2d at 816 (footnote omitted). Nothing indicates the
parties anticipated that the motion would be treated as a motion for summary
judgment, but even such state of awareness would "not render the error harmless if the
record is insufficient to support summary judgment." Id.

       Here, it appears that there was no record before the court, let alone one that
would be sufficient to support summary judgment. This deficiency is understandable,
given that courts are limited to the complaint when deciding a motion to dismiss.
Plaintiffs requested that the administrative record be sent to the district court, but the
court proceeded without it apparently believing that it owed no deference to the
administrator's decision.

      3
       We know of no case law, and the district court cites none, indicating that the
injury of others is at all relevant to the inquiry of whether McAuley's body
malfunctioned.

                                           -5-
       We reverse and remand the case to the district court so that it may (1) properly
analyze the motion as a request for summary judgment through application of the
standards articulated in Rule 56 and (2) give the parties sufficient opportunity to
create an acceptable record including the papers used by the plan administrator in its
consideration and denial of the claims below. Our requirement that the administrative
record be included will not only assist the district court in making its summary
judgment analysis, but will also allow the court to determine whether defendants'
suggested bases for denial of the claims are simply post hoc rationalizations, as
plaintiffs contend. The record may also provide medical evidence illuminating the
"bodily malfunction" exclusion and assist the district court's consideration of the
"exposure to the elements" extension of coverage under the policy definition.4

III.   CONCLUSION

       We reverse the district court's dismissal of the case and remand for the creation
of a summary judgment record and a better-informed analysis of the issues presented
by the parties.




       4
        While the court's determination that "exposure to elements" is limited to "wind,
cold, sun, and not sitting in an airplane seat" may be a reasonable, though extremely
narrow reading of that clause, we note that "elements arising from a covered hazard"
may also be open to other fair interpretations including, for instance, consideration of
cabin-related risk factors such as those that cause hypobaric hypoxia, which condition
may or may not lead to the formation of blood clots. See Hypobaric hypoxia, The
Lancet, Mar. 24, 2001, vol. 357, issue 9260, at 955, available at
http://www.thelancet.com.


                                          -6-
SMITH, Circuit Judge, dissenting.

       The majority correctly notes that the district court may have considered facts
not set forth in the complaint, such as references to "an exposure of stasis, or facts
regarding the unavoidability of the exposure to stasis, or any reference to the health
of the other passengers." However, accepting only the facts set forth in the complaint,
we can decide, as a matter of law, whether an "accident" occurred within the meaning
of the policy language. Because a remand is unnecessary, I respectfully dissent.

      As the majority notes, the appellants' complaint alleged that:

      McAuley was enrolled in the Plan; that the Plan included two accidental
      loss of life policies; that those policies covered "accidents" including, but
      not limited to, "unavoidable exposure to elements arising from a covered
      hazard;" that McAuley took a lengthy flight; that "[t]he extensive and
      massive acute bilateral pulmonary thromboemboli suffered by McAuley
      was a result of embolisms, or blood clots, that formed in his leg(s) during
      the extended airplane flight;" and that the resulting death was accidental
      in that it was a sudden and unexpected occurrence that resulted from the
      extended flight.

      The complaint also set forth the relevant policy language:

      30.    The Accident Policy provides the following regarding coverage:

             We will pay the applicable Benefit Amount if an accident results
             in a Loss not otherwise excluded. The accident must result from
             a covered Hazard and occur during the policy period. The Loss
             must occur within one (1) year of the accident.

                                  *    *   *     *   *

      40.    The Business Travel Policy provides the following regarding
             coverage:

                                           -7-
             We will pay the applicable Benefit Amount if an accident results
             in a Loss not otherwise excluded. The accident must result from
             a covered Hazard and occur during the policy period. The Loss
             must occur within one (1) year of the accident.

       No other facts are necessary to resolve this case. Whether the blood clots that
formed in McAuley's legs during the flight were an "accident" within the terms of the
policy is a question of law. The manner in which McAuley died is not in dispute.
What is in dispute is whether that death is an "accident" under the law. According to
the appellants, the district court erroneously rejected the application of the First
Circuit's Wickman test, Wickman v. Northwestern National Insurance Co., 908 F.2d
1077 (1st Cir. 1990), and relied on the "plain terms of the policy." The appellants note
that the policies provide no definition of "accident" and assert that the Wickman test
has become federal common law under ERISA for determining whether a death as a
result of the decedent's voluntary conduct is an "accident." The appellants assert that
McAuley's death was an "accident" under the Wickman test because McAuley did not
subjectively believe that his conduct was highly likely to result in death and this belief
was objectively reasonable.

       In response, the appellees argue that the district court correctly ruled that an
"accident" is an unexpected or unusual event or happening that is external to the
insured. They contend that the appellants' argument that the Accidental Death Policies
did not require that McAuley's death have been "caused by" an accident ignores the
plain terms of the policies and relies on inapplicable case law.

       Because we review de novo the district court's decision to dismiss a complaint,
Knieriem v. Group Health Plan, Inc., 434 F.3d 1058, 1060 (8th Cir. 2006), and
because "[t]he interpretation of an insurance policy and construction of the terms of
an insurance contract are questions of law subject to de novo review on appeal," Day




                                           -8-
v. Toman, 266 F.3d 831, 835 (8th Cir. 2001), I would resolve this case on its merits
and not remand the case to the district court.5
                      ______________________________




      5
        I also note that the appellants never made a motion for reconsideration, after
the district court granted the motion to dismiss, arguing that the district court
erroneously converted the motion to dismiss into a motion for summary judgment.
Furthermore, the appellants did not raise this argument on appeal. The only argument
that the appellants raise with regard to the pleadings on appeal is the claim that the
district court erroneously dismissed the claims with prejudice based upon the
appellees' post hoc rationales for denying coverage and without the administrative
record before it. They argue that, under ERISA, the district court's role is to review the
administrator's benefits decision; in doing so, the administrator's post hoc rationales
are not to be considered. Thus, they assert that the district court could not identify
these post hoc rationales because it did not have the administrative record before it.
Instead, it relied on the fact that it was reviewing the decision de novo and that these
arguments were raised in response to their arguments. This argument is separate and
distinct from an argument that the district court treated the motion to dismiss as a
motion for summary judgment.

                                           -9-
