enrolled in life an accidental death benefits under the employer plan naming his sisters as beneficiary upon his death even pay the life insurance benefits but denied his claim for accidental death benefits during the claims process investigated the claim by gathering the police report and other documents related to the accident its investigation of the ill that mister boyer was in a car a that was witnessed by five individuals including an off duty police officer who had been an officer for almost twenty five years mister ward's car approach to five cars from the rear and attempted to pass them the speed limit at the site of the crash was thirty five miles per hour it was marked as a no passenger on the off duty officer estimated the speed of mister border at the time of the rock is eighty miles per hour more than twice the posted speed limit and much faster than the cars he was trying meetings mean neither term was defined explicitly in the plan but the plan included delegation language delegating to you know the authority to decide interpret undefined terms of the pla deference is an important concept in this case as i'm sure your honour's are familiar with deference under arrest so i won't belabor the point but under the deference standard there are really it's a two step analysis you look it the proper definition you need treatment if it was reasonable and if it was reasonable if the decision that was arrived at based on the definition was substory supported by substantial evidence reasonable i don't believe that the claims manual alters the analysis here and we make the same arguments that were accepted by the th circuit in the call the ok switch examined the exact same claims well there's a substantial plug i think that it means your honor that it's not meant to be definitive it's not meant to relate down explicit rules it relies on the whole the reminder at the bottom that each claim  company it's distributed to claims examiners and the purpose the purpose of it i think is one of the requirements under the arista claims regulations is that  insurers in incision makers of claims are supposed to make try and make consistent decisions on claims so they're not jumping all over the map making different decisions in different cases that are similar and i think that the purpose of the cl manual is to provide some structure and some relative guidance about how a claims examiner goes about their job however it does not override the terms of the point and the th circuit made this point that even if you look at the strict language of the claims maine you all this was not a mere traffic violation it was a misdemeanor under state law and it was a crime it was going more than twice the speed limit trying to pass five cars at one time in a no passing zone it was not a mere traffic violation there's categories under state many state laws including missouri that that categorizes certain certain is something less than crohn's for exist for example in missouri if you're speeding by less than five miles per hour over the speed limit that's not a traffic or that's not a crime that's categorized as something different and the follow up on that as i understand it that the owner has doesn't necessarily go to how the state has defined a particular violation so it's in missouri i think that helps your argument but it may not help in another state where the weather where the violation might be called something different correct we  rely on missouri law just to show sort of how it would have played out under missouri law but it's not supposed to be definitive because again different state laws differ throughout the fifty states and one of the main purposes is to be more standardized across the country which is why the dictionary definition is the one that the courts typically enforce any understand that your position in response to the one of posing coun well one mile over the speed limit ten and you could lose your accident benefits not understand based on your position five miles over that's an infraction i think i'm hearing you to say that under your interpretation  of that the term crime that would not count what about six or seven i mean is that the line that we're talking about here that five miles over is is a traffic violation that would not qualify as a crime under th dollars would be a crime you're honor those are certainly lines that can be drawn in different cases and that's what courts do is they draw lines the important point is that in this case it was not six to seven miles per hour over in the standard stand i'm trying to understand and i've started to interrupt you but i'm just i'm trying to understand sort of the scope of this definition of crime it's where really what we're trying to get out and i get that this is the evidence indicate somewhere around forty over but what about that six to sixteen to nine and six to eight i think that your honor if you turn to the definition or the i'm sorry the language in the plan that talks about the crime exclusion it says that the crime must cause or contribute to the actual death and so i think it's a bit of a red herring to say ok somebody you know is clocked going six miles per hour over at the time of a fatal accident that really cause or contribute to the accident and i think that's where it comes into play similar arguments could be made about ok so it's a crime perhaps to drive on a suspended license but you know a subsequent investigation shows well somebody was driving on a suspended license but did that cause were contribute to the actual accident no it did and so i think that most of these cases are going to be caught on the cars and contribute language here we had a police report that sa explicitly that probable contributing circumstances to the wreck were excessive speed in trying to pass a no passing zone so there's there's substantial evidence there that in this case the that those actions caused or contributed to the wreck that evidence wouldn't be there in a case where someone was going five miles per hour over the limit or six or seven miles per hour before but as i understand it even if there were  the st instance and human explanation was made before them evaluated the reasonableness of the determination that is correct your honor we're we we don't know how you know would decide that case because it's not the case that is presented the the person was determined to go in about seventy five miles per hour and thirty five mile per hour zone and in the in regard case it was a similar well i think that that case actually involved a car chase where he was evading a police officer so it's a little bit different but the point is there are no cases on record of you know attempting to enforce this in indies sort of circumstances where it's you know barely over the limit or something you have four minutes remaining would you like to address whether the administrator reasonably defined accidental means in terms of a reasonable st see ability as opposed to the whitman standard i'll just speak briefly on that your honor there the king case from this court and on bomb case talk about these two competing standards for accidental means in the important point here is this is an undefined term there's nothing special about it you know is allowed to decide what definition it's going to use for undefined terms the whitman standard may be a reasonable standard but it's never been said by this court that that is the only reasonable definition and in fact that same definition that you know mused has been accepted by at least the st circuit in the th circuit has reasonable so there's no reason that that's not a reasonable  i suppose the argument is would be maybe that it read too many things from the concept of accident because those people reasonably expect to be  in crashes and so forth well i think you're on a good if all of the rule yes yeah i suppose you have to evaluate it in terms of the facts of this case which is that it's reasonably foreseeable that when you're passing on a two lane road at twice you're going to be where the car in trying to pass five cars it wants that something could go wrong there and i think that that's not an accident when that happens if you willingly no your honor we did not take that position what we said was if the court determined that the whitman standard was going to apply you know did not decide it under that standard did not address that standard detailed arguments over what is the meaning of in that set and over whether the crime exclusion should or d should not apply but this all comes down to one simple question did the trial poor error in concluding that un cision to deny plaintive claim for d her brother's accidental death benefits was unreasonable and that comes from the king versus hartford wife case that this court decided back in two thousand and five reasonable amounts of the decision is the overarching standard this or looks to and we look at this case there's really two separate ways that we can get to or upholding the district court's decision accident is proper but there is a nd way that this court gets to d ink you know hold the district court's decision that is that irrespective of the policies crime exclusion and its definition accident unum to decision is not supported by substantial evidence in other words what you needed here was simply pick and choose among whom hitting that ends with doing no investigation and no analysis of the facts and since we have to arrest some of those issues a few moments ago i'd like to look at that right now that case law that brains this point out se be unreasonable and when you look at the king case in this d care our courts wire witnesses and the medical examiner's report d was a retelling of the medical examiner that the medical examiner classify this d as an accident and the cause of death as accidental of the five witnesses only one of those five witnesses the police officer made any claims as to what's believed the deceit and who is going what you have here d is you know i'm choosing one very paltry evidence with very limited investigation and interpretation that it's not and i'd like to turn to look at the crime exclusion d for a few moments well wait a minute before you do that are you saying there's not substantial evidence to support the conclusion that the driver was traveling eighty miles an hour in a no passing zone yes your honor the darvell case requires that by this court from two thousand and ten requires that there be substantial evidence to support you know this decision substantial evidence is defined as more than a scintilla less than a preponderance and when you look at the evidence that was collected here it's very limited particularly in light of what you see in the caldwell case and the omer guard case out of the th circuit in both of those cases d there was substantial investigation that was by the five factors this court set forth d in the finley versus d special agents mutual d life and on all five of those factors the crime exclusion d used by whom fails to pass the reasonable d test what i'd like to look at is a couple of those factors for us the most obvious st is this definition consistent with ago when and when you look at the briefing that you who has done here they make the argument that the goal is not to pay claims for risky behavior but that's not what the goal of the plan is case law defines the goal of the plan to be the same as the goal of a recession that is to protect the interests of the beneficiaries of the plan and encourage uniform it's defined by state laws in others they say it's defined by dictionary definition but that's kind of a circular argument as the dictionary definition says something is a crime if it's an issue well what we've done here and unum has done with its crime language and its crime exclusion particularly in light of what it says in its claims menu is allow itself to have a floating definition of crime that it can use to fit whatever circumstances it has for denial let me show you an example of that unum try to use this same definition in the harrison vs you know my wife case out of the district of new hampshire in two thousand and five and in that case the individual was accused of committing t w walk well in new hampshire for some unknown reason d w i is not a crime it is merely a violation so in that case unum said don't look at state law don't look at that definition instead look at is this something that would normally and typically be considered a crime and the  know to use the definition in that case from a dictionary but noted how it is very questionable or something that lacks the peony a logical pedigree and that was the phrase the court used of d w i would classify as a crime under the definition so you know here is using if lexical definition that it can interpret say that crime is defined here well what should what should be the definition well your honor i don't think it's appropriate for either the district court or absolutely to offer a definition of crime because that's something that you know as the when i'm in a straight or gets to write up but i think we can talk about what a crime is not a crime needs to be seen like and the crime exclusion like all the provisions of the benefits plan through the eyes of the policyholder policyholder that if they look at their plan would know what is and is not coverage and so the crime exclusion should include within it a definition that would make sense to the average policyholder without any special training or legal education as to what is meant by that phrase and if you look back at the district court's opinion the average policyholder is not going to think that traffic violations as a category might fit within that by that definition as you know has property here you  astutely mentioned earlier they could classify someone going only five or six miles an hour over the speed limit as being subject to the crime exclusion i think it's more likely to come up in the situation of someone jaywalking in a street something that happens on a regular basis or someone negligently simply missing a stop sign on a road and being t bo all of those are potential applications of the crime exclusion unanimous trying to use here and shows how we loose the definition and how one reasonable definition you know as positive here is to use that does that address your question your honor hell do we know what the average policyholder when he did the term crime well i think the court has to use common sense and that in the common that understanding of individuals i also think that the union policy who gives us some guidance to that obviously you know claims manual itself does not typically consider traffic violations as problems and this was an issue that the district apologies analysis that you did in the phoenix life case one of the early ones on the accidental means versus accidental results case you talked about how we all know what an accident ends and we how lawyers get involved in insurance get involved d and i think that's true with crime the average person without legal training has their idea of what a crime is and it only becomes complicated and difficult to determine if some has committed a criminal act or died in the course of criminal conduct when lawyers and insurance  one of the other areas in which the crime exclusion has a severe problem is the rd factor of the then lee test and that's that it conflicts with the substantive and procedural as what if the average plan participant has some point in her life received a speeding ticket and had to fill out a document saying that she pleads guilty and mailed it into the criminal court of the county and paid a fine reasonable participant at least have a question whether i might run into conviction or ever been charged with a crime and uniformly no one no matter how bad their traffic violations is no matter the class a misdemeanor almost never raises their hand from an onion cool experience of just me as a trial lawyer apparently people don't think like we lawyers do on that there may be a few that do but the average plan protests would not think that a traffic violation would exclude them under the crime exclusion and i think we can see that because of how narrow that limits the scope of accidental live coverage it is very foreseeable for a person particularly a young person like mister boyer d that he might die as part of a traffic incident and that's even forseeable for older individuals like myself when you look at that we would expect there to be coverage if we d in a traffic accident well in every traffic deaths and in at least one person under the definition that you know is proffering as likely to miss it a crime most people say you have thirty seconds left because your address what's wrong with you know addressing adopting a reasonable expectation standard for the term accidental means consistent with not least two other circuits the campaigns didn't decide they left it all mine why is not a reasonable interpretation of accidental means sure there's several reasons but just in the limited the accidental means vs accidental results test accidental meetings narrows the focus too much where we start focusing in on determining based off of on doubt it runs into the problem judge or goes mentioned in the land vs phoenix metropolitan life case very justice so where the focus should instead be on what is the highly likely result of the conduct to occur additionally i just think that  it appears to be the binding precedents in this circuit both based on at least three cases from your court and then three or four cases from the district courts that it within the circuit all right thank you for and thank you your honor judge kelly in answer to your question about how do we determine the expectations of the of the participants the case law from the circuit is clear you determine a bio looking at the ordinary meaning us determine from a dictionary that's the way you make sure that you're not using overly you know lawyerly phrasing or anything like that you want to an ordinary definition that's what you know you did in that supports that how come that was that was arrived here at the end of the day this is not a close case your honor the your honors the the deceased was going eighty he was it was affectively trying to do  street racing you was passing five cars it wants on a two lane road at an excessive rate of speed the point of crime exclusions is that insurance is not supposed to transfer the risk of self destructive behavior this kid a very easily been a tragic accident if he lost control and ran into one of those five cars and taking that car out and somebody in that car died or or someone was objected or something else this is not a close case he was acting in self destructive way and that's the exact actions that the crime exclusion is supposed to address see that amount of time unless your honour's have any other questions very well thank you for your argument thank you to both counts all cases