                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                          JUNE 21, 2010
                                     No. 09-12634
                                                                           JOHN LEY
                               ________________________
                                                                            CLERK

                       D. C. Docket No. 06-01201-CV-T-17-MAP


HELEN THOMPSON,

                                                                         Plaintiff-Appellant,

                                            versus

LIFE INSURANCE COMPANY
OF NORTH AMERICA,

                                                                       Defendant-Appellee.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                       (June 21, 2010)

EDMONDSON and MARCUS, Circuit Judges, and BARBOUR,* District Judge.



       *
         Honorable William Henry Barbour, Jr., United States District Judge for the Southern
District of Mississippi, sitting by designation.
PER CURIAM:



      Appellant-Plaintiff Helen Thompson’s husband died as a result of an injury

sustained while on a business trip in Florida. He had been drinking and, while

walking, fell in a parking lot, hitting his head. His life insurance policy through

LINA contains an exclusion for accidents caused by or resulting from the insured’s

“intoxication as determined according to the laws of the jurisdiction in which” the

accident occurred. Florida law contains no general definition of legal intoxication.

LINA denied benefits, claiming that the DUI statute establishes 0.08% as the “legal

limit.” ERISA applies to this case. The district court granted Defendant LINA

summary judgment.

      After hearing oral argument and looking repeatedly at Florida’s laws, we

regard the only debatable issue in this appeal to be whether the district court was to

determine de novo about the administrator’s denial of benefits or to determine

whether the denial was arbitrary or capricious. But we do not decide that issue. It

is unnecessary.

      If a de novo standard applies, we are unanimous in concluding that

Plaintiff’s husband was not intoxicated “as determined according to the laws of”

Florida. If the arbitrary and capricious standard applies, a majority of today’s court



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concludes that the administrator’s denial of coverage was arbitrary or capricious

given Florida’s laws.

      Accordingly, we reverse the judgment of the district court.

      REVERSED.




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