this case died in his bathroom following a fall in which he fell into the shower door and is fixated himself on the show in the shower the coroner that occurred on july in extreme hypertension of the neck in torso while intoxicated miss mrs culture and the spouse of mr coltrane played for benefits under the accidental death policy and was denied those benefits and that decision was upheld in the district court that the benefits administration committee which is the acting entity appointed by nationwide did not abused its discretion and making this determination and this was all done on the administrative record of correct counsel that's correct while the abuse of discretion we recognize that standard is very high it still needs to be the result of does deliberate in principled reasoning and it needs to be supported by substantial evidence in this case there is an inherent conflict of interest between nationwide and the benefits administration committee that committee is appointed by nationwide it's made up of director level or higher members of nationwide and the court that is always the case in this situation yes right so so that's the usual way of managing these claims well it would always be this if it's inherent conflict of interest this would always be the case with all the claims that conflict to vince venter of interest arises when the pay or in the administrator the of the plan are one in the same and that's particularly true in this case when the benefits administrative administrative committee is essentially director level or higher members of nationwide they are indemnified by nationwide for any of the decisions that they make and this would not be unique in nationwide policy challenges i believe that it would be maybe not necessarily unique but you know the six circuit does recognize that there is a conflict of interest under these circumstances which would seem to suggest that there are other circumstances when the benefit plan isn't ok i meant with nationwide that's always trying to establish that in this is not unique it's not unique but in order to circumvent the conflict of interest or lessen it there are things that nationwide could have done and two they could  people who were had a financial introduce the could have done distinguishable from must do right because the question is whether or not a conflict of interest should apply here and  believe there's that doesn't mean that it's automatically arbitrary and capricious you know it does not it means that it is a factor in making the determination ok but you don't have anything in the record showing specifically there was some conflict of interest beyond the fact that they're related pardons well that court in cibber a versus three l three communications put together four factors to look at there's conflict of interest and what that means they looked number one is whether there's inconsistent reasons for the denial which in this case mrs cole turns benefit was initially denied under an exclusion that had to do with driving while intoxicated when she hired counsel to oppose that decision because mr thrown a dyed in his bathroom erroneous we applied to the motor vehicle and i saw a white way that was the old version now we got a new version of exclusion twelve it was political here that doesn't mention all the the denial letter actually the initial denial letter and it also says that the d c dence blood alcohol content was it in excess of the level at which ohio presumes intoxication hampered presumes intoxication in very limited circumstances driving a bus driving a boat driving a and what's important about that is two things number one that statute was not looked at or reviewed by the benefits administration committee their own by allies state that you have to identify everything that you looked at but the benefits administration committee did is they called a conference call with two members of the committee on the phone they looked at the at the file that star line which is their third party administrator had put together they looked at the plan document and they looked at the insurance policy the plan documenting the insurance policy that had not at this time been provided to mrs culture and from that conference call they wrote a letter that day denying the claim they didn't look at revised code thirty three thirteen nineteen it's nowhere in the record and in fact it didn't come up until this case was already filed in the district court but the whole inquiry that you're going into here it seems to me this idea of an inconsistent reason for their actions goes to the question of whether they're they're being disingenious and what they did here another is they're lying about their reason for the denial because they have this conflict of interest that's really where you ultimately have to end up and it seems to me here they've always said we're not going to pay because the guy was drunk now they made a mistake in connection with why that would allow them to deny one version of the exclusion versus another but they've never varied from the idea that hill's alcohol content is why they deny this claim have they that's correct but the previous exclusion twelve on which  something that shows a shifting rationale that would allow us to conclude that they're lying about it as opposed to just having made an error in basically your argument is they screwed up they made an error so therefore that cooperate your claim they had a financial interest in this matter therefore they get less deferential review i mean it's a whole series of of what ifs well the conflict of interest piece is part of it but what we believe is that the record shows an intent to deny from the start number one they've made a decision based on the wrong exclusion and the decision was based on his plate alcohol level being in excess of which it which ohio presumes intoxication but it's always been based on the blood alcohol has  correct and we believe that the language of the policy which says that the individual has to be deemed an presumed under the law of the locale in which the injury occurs to be intoxicated to be controlling here and there was no looking there was no attempt to look at  is they were right though i mean they even though they didn't peruse the ohio law in making that decision they basically looked at the blood alcohol as i get it and said well that's that's why die that's we don't cover that well the core and they were actually correct about ohio blood alcohol not with respect to be a cols but what the coroner said well the coroner's report indicates that he died by there was an autopsy and there was also a medical examiner that was there was retained by the insurance company to review the case in this case there was no medical examiner that reviewed the file there was no interaction with the turin or if it was a coroner says oh no we want to be sober as a judge we don't have any expert to say one way or the other you know i guess when we kind of cut to the chase what i'm trying to figure out is the coroner says that while intoxicated that's based upon this blood alcohol level whether it's however we need nor however it applies to driving one way or the other so how can they be arbitrary and capricious having denied this claim based  upon one the exclusion and two the coroner's report while intoxicated is different than an injury injury being caused by intoxication and in the case of that satan our priests makes that distinction including the case in this court the lo really whether they were wrong the standard address was whether they were reasonable in the way in which they made this determination and they looked at the file we looked at the coroner's report they looked at the blood alcohol level so why is that  their own plan language says that they need to be deemed in presumed in the law of the locale to be intoxicated it doesn't say you have to be intoxicated and then go on to explain what intoxication means they could have done that but they left it they left it in big us and if we if we're going to be deemed an presumed under the law of the lookout then we have to look at the law to determine just like the lone case what is illegal what is what is the legal definition of intoxication and how it does that fit into this exclusion what do you in which this injury occurred there are two lies that related to execution one is public intoxication and the other is selling to minors now just like the lone case with  can't apply the driving while intoxicated because this gentleman was in his home so we're going to play a player a definition that the that the kentucky supreme court found to be a tax occasion and that was a definition that related to public intoxication that also didn't apply to mr lone situation so the court found that the exclusion didn't apply and that the that the insurance company abused its discretion in determining that it did remember that there is no question here about whether or not this was an accident the question is you is there any dispute about whether he was under the influence of alcohol or intoxicating liquors i'm not adding any more phrases any more words i just want to know the answer to that question the answer is no the dispute is whether is not there is no dispute about that whether he was i'm sorry that you want to you're in your mind you want to reframe my question so just listen to the question and then you can say but i'm wrong to ask the question that's what is a dispute about whether he was actually under the influence of alcohol or intoxicating liquors there's no dispute that he had been drinking that night you're reframing it i just want to know in the language of the policy is there a factual dispute about whether he was under the influence of alcohol or intoxicating other issue in this case is that star line and it's owned by allies and also in the implementing regulations of require that a medical examiner be present during a review of a claim involving a medical decision no medical examiner was present no medical examiner was contacted there was not even an independent file review if you look at the circumstances of this case it shows it didn't intend to deny from the start there's a there's a denial that has the wrong decision on it or the wrong the wrong exclusion posted and then support for that exclusion as to why it was denied there's no medical to there's been no medical authority whatsoever consulted as a reader as part of its review what they did is administrative committee this is a case governed by a risk there are two distinct issues that are presented the first is the question of whether the benefits administrative committee's decision denying these accidental death benefits should be affirmed and the second question is whether the district court's decision to impose a statutory penalty on the benefits administrative committee for allegedly failing to provide requested documents was an error and why don't you if you would please start with answering the question ms lawrence raises with respect to the policy requiring a medical examiner to be present yes well the policy itself does not require medical examiner to be present and you heard her argument would you address that yes absolutely so the basis of her argument is is twofold she suggests that there is a little i mean with respect to the medical examiner is she wrong to say that that was required yes she's absolutely wrong to say that a plain lie you say that because there was no medical dispute in this case there were no medical issues in doubt when this issue came before the benefits administrative committee say that we just spent fifteen minutes talking about why the blood alcohol may not have risen to the legally presume limit in the state of ohio the only medical evidence in this case is the medical evidence that came from the medical examiner in the coroner's report in this case and that is  for all intents and purposes and an independent medical opinion that could not fill the triggering of the the requirement that we were pointed to only occurs where there is a debate yeah i would yes and your honor i believe that's right it's there isn't it it must be there i know ms lawrence wouldn't tell us it is if it were ms lawrence is pointing to a provision in the bylaws for the benefits administrative committee it is not a part of the plan itself or a requirement of the policy nor is it a requirement of a risk as a statue or regulatory requirements for a full and fair review just finish with explaining why it wasn't triggered here even though it was in the the rules of the committee it wasn't triggered here first and foremost because there was no dispute with respect to the medical evidence the medical evidence was in before the benefits administrative there's a dispute it has to be this among the committee or no a dispute for example brought to the committee by ms coltrane on appeal so if ms culture has attorneys who represented her in connection with her appeal head had taken th position that the medical examiner and coroner's report was wrong then there may have been competing medical opinions that assistance of a good and additional medical opinion may have have helped you can move on to your argument ok so it's still my my view that under those circumstances the benefits of minutes straight of committee we've been permitted to rely on the opinion of the medical examiner of the coroner's the coroner's report that specifically what you know one of the purposes of the ohio statutes addressing the these reports the high revised code three one three point one nine cited in my brief ohio revised code three one three point one zero the three c and in fact i want to clarify that i cited it wrong i put an extra digit in there  for the court's benefit it is section three one three point one zero and that provision specifically provides that for insurance companies they're permitted to rely upon these coroners reports in making benefits determinations it's presumption of whether somebody was intoxicated what you're looking for is a legal finding of what happened the root cause of death and that is exactly what the coroner's report provides in this case it's an interesting i mean  be a contributory cause based based on the language of the policy the exclusion provides that no benefit will be paid for any loss resulting in whole or in park from or contributed to by or as a natural consequences of this list of exclusions and so it can be a contributing cause and still triggered this exclusion but i think it's important to recognize that the the facts that are laid out in the medical examiner's report are pretty compelling that medical examiner stated in its report that mr cole try to die to an apparent positional asphyxia when he became unconscious while intoxicated passed out and so it the fact that positional asphyxia is the the the immediate cause of death it's very clear from the medical examiner's report that the positional asphyxia that's what the medical examiner found and concerning contrary proof on the record there is no contrary proof in the record none whatsoever and it's simply not a disputed issue whether he was intoxicated at the time what about the fact that i mean even though it's point two two and that exceeds the driver's presumption of intoxication what is the ohio law when are you considered intoxicated if you're not driving a vehicle well for the purposes of this case what what we're looking for if we if we look to the language of the exclusion and we're asking if if mr coltrane it was deemed in presumed under the law of ohio to  be to have been under the influence of alcohol when he passed away that's precisely what the coroner's report provides for us because it provides a legal presumption that the cause of death found by the coroner found by the medical fine and i'm going to quote from the letter here since the coroner's fine things show that sean coltrane his death was caused by acute ethanol intoxication the committee determined that the loss is excluded by policy exclusion number twelve there is no question that the benefits administrative committee in making its decision relied directly upon the coroner's findings and so i suppose what i'm saying is there is no requirement in a risk regulations or otherwise that would require at each step of the benefits of minute straight of committees thought process to say that not only are we basing this on you know directly on the coroner's findings but we're going to drop a footnote and arguing is i was trying to get her to agree that this person was under the influence of alcohol or intoxicating liquors and she pushed back on that correctly by saying that that determination under the policy as she reads it is not made based on the point two two it's made on the prior language about being deemed and presumed under the law in which the induce the injuries sustained so we know there's a law that says you can't drive drunk  gathering there's a law says you can drive a boat drunk but is there a law that says you can't walk around in your bathroom drunk or a law that says if you have a certain blood alcohol content when you walk around in your bathroom we're going to presume that  because obviously there are different reasons why we would presume somebody is drunk when they're driving a car so we don't have to fool around with trying to figure out whether they really are but why do we care if you're walking around in your bathroom drunk well i think that the the only proper response to your your question is that there's nothing in this exclusion that requires an element to pray anality what or or misconduct or prohibited conduct under ohio law what the exclusion refers to is being under the influence of alcohol or intoxicating liquors and so there is no requirement for example that is is there a law state or local that presumes somebody is drunk based upon any level of blood alcohol test if they're not behind the wheel of a car or boat i believe that the application of the point zero eight standard till i was worker's compensation laws and to the  absolutely right he wasn't it and the point zero eight also applies in the context of public contractors and the standard that they're required to apply in testing their employees and i  think that you know obviously where you're going is is the question of does ohio have a specific standard that would apply in the insurance context and the answer is is no the point zero eight standard is not articulated that way in ohio stand statutes but if you look at sort of get around the center with them is lawrence and you doesn't it come down to the question of there isn't any law of general a political billet in ohio about how much alcohol you can have when you're on private property and whether you are drunk so it comes down then was to whether the insurance company was reasonable in imputing these other standards that apply in other instances in interpreting their only language of their own policy the answer to that is no because if you look at the be a c's decision to be a c does not rely upon the point zero eight standard for intoxication to be a see very clearly states that since the corners a point zero eight blood alcohol level standard we do make the argument in the briefs that it could have done so if it wanted to and we cited court decision out of florida that interpret the exact same policy language that's involved here is it safe to say then that  way as a portable and ohio two different objects right well we don't know that for certain but if we look at the police reports and the other information that was available to the coroner the witness statements were were that turner was out drinking heavily that he was stumbling walking into chairs falling down before he drove home that night and passed away and so there is overwhelming evidence as to his intoxication that really isn't binge drinking of the night before and so so you would say that you're not acting in an arbitrary and capricious way if you rely upon the coroner's report in the absence of any other medical evidence there was an abuse of discretion in sanctioning your company for failing to provide the policy there is there's a very limited scope of documents that a plan participant may request to trigger the statutory penalties provision under arista the elysees not one of them the request in this case did not include a request for the policy if the policy had been requested explicitly it asked of all documents that you c requested that the documents comprising the administrative record endorsed supporting nationwide's decision absolutely right and in and that policy was not a document compris the record or supporting the decision the request for all documents comprising the record in supporting the decision is very clearly a request for documents that's covered by a different section of the arista statute and the regulations in order to trigger the penalty provisions of a receipt for failure to provide documents the courts of appeals of the second third fifth seventh and tenth circuits have all he that a plaintiff must have provided clear notice of the documents they sought to obtain in order to trigger the statutory penalty provision this circuit has not had an opportunity to time is expired so if these if the argument you wish to present request in her briefing in order to find that the request was seeking a copy of the policy document and that in light of itself to look at that point absolutely  have to make two quick points but i want to address the statutory penalty issue first section five zero four requires that the plan provide the latest updated instruments under which the plan is this alister operated in this case mrs cole trying to had already given been given the wrong plan documents twice and cited a plan exclusion that did not apply to situation under which her husband expired and if you look at the record the e mail exchange in november two thousand and eleven between nationwide and third party administrator shows that they had noticed that mrs clinton was asking for the plan they were concerned about whether or not to provide it to her because they weren't sure in the nation why employees words i'm not exactly sure whether the communication of the change meaning the change in exclusion twelve ever went out so ultimately they determined not to provide her with a copy of the plan following her request in november and copy of the paul and me a copy of the policy or copy a copy of the policy or the plan neither of those documents were provided although they were reviewed and these documents were not provided in till after the case was filed in federal court and a case management conference was held in which the issue was discussed that's when the plan documents were provided to us it wasn't because  a copy of the administrative record which is different than providing provide us with a copy of a plan in which you made your decision before over on the suction about administrative record if that's what that language surely would be interpreted by the plan administrator to mean does that section also require you to give a copy of the plan if you have not or the policy if you've not already done so was that is that talking about different stuff i i don't know but but what i do know is that nationwide and its third party it minister straighter clearly understood the request as a request for the plan and decided not to not to provide it given the fact that they were unclear and were still unclear today as to whether or not the exclusion twelve was ever communicated to other mister comes once the court to accept that they're not required at all to consult and utilize in making the determination we weren't asking for a footnote here we were asking for some reference or some understanding as to whether or not any laws were consulted at all there's no mention of three thirteen thousand nine hundred because that came up following the appeal in this case when and when counsel got involved they also want us to accept that they're not required to have a medical examiner in this case what they're by let's specifically for discussion of all appeals that involve a medical issue but they don't have to tell us how that had that let's assume it applies was assumed they didn't comply with that you don't you have to also show to some indication that had they done what you say they were supposed to have done it would have cut led to a different conclusion yes and what evidence is there that it would have led to different conclusion because we asked you earlier are there different autopsy conclusions do you have a medical doctor that's going to say oh this guy had a high alcohol tolerance he wasn't drunk could point to two it's hard to say what a medical if they had followed their plan what a medical expert would have said so you don't know this is just pure speculation what have they done what you say they should have done if they had done it it would have helped i get this is an abuse of discretion standard and they understand that it's difficult but it can't be the plans cannot follow their own guy lives and not consult any laws when they have the ability to write their own plan to say deemed in presume the under the l very curious to just rubberstamp a decision there was the ac did nothing further than look at star lines file when making a determination with two representatives on a phone call that's an argument it's hard hearted thank you appreciate  fair all right thank you thank you both we have your case and we will consider carefully an issue an opinion into court