UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-60888-CIV-ALTMAN/Hunt

RONY Y. JEAN BAPTISTE,

Plaintiff,

v.

SECURIAN FINANCIAL GROUP, INC., et al.,

Defendants.

_________________________________________/

ORDER

The Plaintiff, Rony Y. Jean Baptiste, is the beneficiary of his brother’s life and accidental death 

and dismemberment insurance plans. After Jean Baptiste’s brother died of a drug overdose, the 

insurer—Securian Life Insurance Company—paid Jean Baptiste the life insurance benefits. But it

denied coverage for the accidental death benefits. In doing so, it notified Jean Baptiste that his 

brother’s death was not a covered loss and that the overdose was otherwise excluded from coverage 

under certain plan provisions. As we explain below, this denial of accidental death benefits was neither 

arbitrary nor capricious—which means that, under the Employee Retirement Income Security Act of 

1974 (“ERISA”), we cannot disturb Securian Life’s decision. We therefore GRANT Securian Life’s 

Motion for Summary Judgment (the “Motion”) [ECF No. 30].

BACKGROUND1

I. THE POLICIES 

Securian Life issued a group life insurance policy and a group accidental death and 

dismemberment (“AD&D”) policy to Johns Hopkins University. See Joint SOMF ¶ 1. We refer to 

1 The following facts are taken from the Parties’ Joint Statement of Undisputed Facts (“Joint SOMF”) 

[ECF No. 31], Securian Life’s Statement of Facts (“Def.’s SOMF”) [ECF No. 29], and the exhibits

Securian Life appended to its SOMF. Because the Plaintiff didn’t file a response to Securian Life’s 

statement of facts, see generally Docket—which Securian Life properly supported with documentary 

evidence—we deem those facts admitted, see S.D. FLA. L.R. 56.1(c) (“All material facts in any party’s 

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these as the “Policies,” collectively, or as “Policy 70327” and “Policy 70328,” respectively.2 The 

former offers both life insurance and voluntary AD&D coverage, while the latter offers only AD&D 

coverage. Id. Ramses P. Mocombe, the Plaintiff’s brother, was employed as a nurse anesthetist at Johns 

Hopkins and had enrolled in both Policies. Id. ¶ 2. 

This case concerns only the AD&D benefits. Under the Policies, AD&D coverage is “limited,” 

such that an insured is entitled to benefits “only when [his] loss, death or dismemberment, results, 

directly and independently from all other causes, from an accidental bodily injury which was 

unintended, unexpected and unforeseen.” Id. ¶ 3. Furthermore, “[t]he bodily injury must be evidenced 

by a visible contusion or wound, except in the case of accidental drowning. The bodily injury must be 

the sole cause of [the insured’s] death or dismemberment.” Id. 

Policy 70327 includes the following exclusion, which provides (in relevant part) that Securian 

Life isn’t required to pay AD&D benefits when an insured’s death:

is caused directly or indirectly by, results in whole or in part from or during, or there 

is contribution from [...] (3) [the insured’s] participation in, or attempt to commit, a 

crime, assault, felony, or any illegal activity, regardless of any legal proceedings thereto; 

[...] (5) the use of alcohol; or (6) the use of prescription drugs, non-prescription drugs, 

illegal drugs, medications, poisons, gases, fumes, or other substances taken, absorbed, 

inhaled, ingested or injected.

Id. ¶ 4. Similarly, Policy 70328 doesn’t require Securian Life to pay out benefits when an insured’s 

death:

is caused directly or indirectly by, results in whole or in part from or during, or there 

is contribution from [...] (3) the insured’s commission of, or attempt to commit a 

felony, or to which a contributing cause was [the insured’s] being engaged in an illegal 

Statement of Material Facts may be deemed admitted unless controverted by the other party’s 

Statement of Material Facts, provided that: (i) the Court finds that the material fact at issue is 

supported by properly cited record evidence; and (ii) any exception under FED. R. CIV. P. 56 does not 

apply.”); cf. Ligotti v. United Healthcare Servs., Inc., 2021 WL 2333111, at *16 (S.D. Fla. June 8, 2021) 

(Altman, J.) (deeming material facts admitted when the opposing party’s disputations were 

“procedurally improper”). 2 The Policies are attached as exhibits to the Def’s SOMF. See Policy 70327 [ECF No. 29-2]; Policy 

70328 [ECF No. 29-3]. 

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occupation; [...] [or] (5) a loss to which a contributing cause was the insured’s being 

intoxicated or under the influence of any narcotic.

Id. ¶ 5. Both Policies confer discretionary authority on Securian Life by providing that “Securian Life 

has the exclusive right and authority, in its sole discretion to interpret the group policy and decide all 

matters arising thereunder. Securian Life’s exercise of that authority shall be conclusive and binding 

on all persons unless it can be shown that the determination was arbitrary and capricious.” Id. ¶ 6.

II. MR. MOCOMBE’S DEATH

On April 14, 2018 (while the Policies were in effect), Baltimore police officers found Mr. 

Mocombe dead in his apartment. Id. ¶ 7. According to the Incident Report, the officers found him 

“sitting on the bed slumped over on his right side with his face into the mattress.” Id. He had an IV 

inserted in his hand, and vials of medications3 were scattered throughout his apartment. Id. 

Maryland’s Medical Examiner performed an autopsy. Id. ¶ 9. The autopsy report noted that 

there had been an “intravenous line taped to the back of the left hand” of the decedent and that 

“[t]here was no evidence of significant recent injury.” Id. ¶ 10. The examiner opined that the decedent 

had self-administered substances intravenously and that he had ultimately died of “Diphenhydramine, 

Ketamine and Ethanol Intoxication with Fentanyl Use.” Id. ¶¶ 11–12. Still, the “manner of death [was]

best certified as COULD NOT BE DETERMINED.” Id. The Medical Examiner later amended the 

report, maintaining her opinion that the decedent “died of Diphenhydramine, Ketamine and Ethanol 

Intoxication with Fentanyl Use,” but adding that, “[p]er report, the Decedent had insomnia which he 

had been self-treating for years. No history of depression, suicidal ideations or prior suicide attempts 

was reported. The manner of death is ACCIDENT.” Id. ¶ 13. She also prepared a Toxicology Report, 

which revealed traces of “diphenhydramine, ketamine, lidocaine, metroprolol, metroclopramide, and 

3 Those included: “2-Azithromycin, 1-Xylocaine, 1-Solv Cortef, 13-Diphenhydramine, 1-

Metoclopramide Inj 10mg/2ml, 10-Metoprolol Inj 5ml, 3-Ketorolac Tromethamine30 mg, 1-

Midazolam Inj. 5mg, 3-Lidocane Inj 1000mg, 4-Fentanyl Citrate Inj. 100mcg/2ml, 3-Ondansetron 

4mg/2ml, 1-lactated Ringer’s Dextrose Inj.” Joint SOMF ¶ 7.

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fentanyl in the Decedent’s urine.” Id. ¶ 14. Finally, the Toxicology Report included the results of a 

subclavian blood test, which showed 1.8 mg/L of diphenhydramine and 2.1 mg/L of ketamine in the 

decedent’s system and a blood-alcohol level of .17%. Id. 

The State of Maryland issued a Certificate of Death on May 9, 2018, listing the “direct[ ] cause 

of death” as diphenhydramine, ketamine, and ethanol intoxication with fentanyl use and indicating 

that the “injury occurred” because of drug use. Id. ¶ 15. A July 13, 2018 amendment to the Certificate 

of Death declared that the manner of death was an “accident.” But that amendment reiterated that 

“drug use” had caused the death. Id. ¶ 16. Specifically, it concluded that diphenhydramine, ketamine, 

ethanol, and fentanyl had “directly caused” the death. Id.

III. THE PLAINTIFF’S CLAIM FOR BENEFITS 

The Plaintiff submitted a claim for benefits on behalf of himself and Viotti A. Lefevre, the 

decedent’s other brother. Id. ¶ 17. He contended that the decedent “passed away due to an accidental 

overdose of powerful sedatives, in his quest to combat debilitating insomnia.” Id. ¶ 18. He appended 

to his claim copies of the Certificate of Death, the Incident Report, the Toxicology Report, and the 

Medical Examiner’s Report. Id. Securian Life informed the Plaintiff that the brothers were entitled to 

life insurance benefits under Policy Number 70327, id. ¶ 19, but it denied their claim for AD&D 

benefits under both Policy 70327 and Policy 70328, id. ¶ 20. Securian Life explained that, “based on 

the information available to [it], the manner of death could not be determined, and no proof of 

accidental death as defined in this policy has been provided.” Def.’s SOMF ¶ 21. Even if the death 

had been “accidental,” Securian Life continued, “there [were] specific exclusions for this type of 

event”—namely, for losses “caused, resulting from, or contributed to by alcohol, prescription, 

nonprescription, and illegal drugs, medications, intoxication, and/or narcotics.” Id.

The Plaintiff appealed the decision to Securian Life and advanced two arguments: (1) that 

Securian Life didn’t have the benefit of the final Certificate of Death, the Toxicology Report, or the 

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Medical Examiner’s Report when it first reviewed the claim, and (2) that Securian Life misinterpreted 

or incorrectly applied the term “narcotic” as it appears in the policy exclusions. See Joint SOMF ¶¶ 

21–22.

4 The Plaintiff didn’t, however, dispute Securian Life’s position that the decedent had died from 

a drug overdose. Id. To the contrary, he conceded that the decedent “accidentally succumbed to a 

therapeutic use of medications”—though he added (without evidence) that the decedent was “legally 

qualified to prescribe and administer” the drugs and that he’d been self-prescribing those drugs “for 

several years to help combat Insomnia.” Aug. 13, 2018 Letter [ECF No. 29-13] at 3; see also id. (noting 

that the “[d]eath was caused by an accidental overdoes [sic] of a sleeping cocktail that [the decedent]

had been prescribing to himself for years”).

In reviewing the appeal, Securian Life reached out to Johns Hopkins, which represented that 

Mr. Mocombe wasn’t permitted to write prescriptions and that he hadn’t filled any prescriptions on his 

own behalf at any Johns Hopkins facility between April 14, 2017 and April 14, 2018. See Joint SOMF

¶ 23. Securian Life also ran a “ScriptCheck,” which indicated that, between September 21, 2007 and 

April 3, 2018, Mr. Mocombe hadn’t been prescribed any of the medications that were found in his 

home—other than one drug, Azithromycin—or any of the drugs found in his system. Id. ¶ 24. Securian 

Life then upheld its denial of AD&D benefits, informing the Plaintiff of this decision by letter dated 

December 12, 2018. Id. ¶ 25. 

In that letter, Securian Life explained that Mr. Mocombe’s death “was not the result of an 

accidental bodily injury” (as defined by the Policies) because (1) there wasn’t any evidence of a visible 

contusion or wound and (2) injury or death was a foreseeable result of the high concentration of drugs 

and alcohol in the decedent’s system. See Def.’s SOMF ¶ 26; see also id. (determining that “[t]he 

combination of ketamine, elevated levels of diphenhydramine, and an elevated ethanol level, more 

4 Mr. Lefevre didn’t appeal, and the Plaintiff didn’t file an appeal on his behalf. Id.

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than likely led to significant central nervous depression, pulmonary dysfunction, hemodynamic 

instability, and death”). Securian Life further noted that, according to medical literature, the decedent’s 

blood-alcohol level of .17% was just below the fatal range and that its Associate Medical Director was 

of the view that ketamine (a general anesthetic) is a dangerous drug that should be administered only 

in a hospital setting under the care of a medical professional. Id. ¶¶ 27–28. Finally, Securian Life 

invoked the Policies’ crime and felony exclusions and emphasized that Mr. Mocombe’s death was 

caused by the possession of controlled substances and unprescribed medications, in violation of 

Maryland law. Id. ¶ 29.

The Plaintiff filed a second appeal—arguing again that the term “narcotic” in Policy 70328 

was ambiguous. See Joint SOMF ¶ 26. After some additional review, Securian Life reaffirmed its denial 

of AD&D benefits. Id. ¶ 27. 

IV. PROCEDURAL HISTORY AND MOTION FOR SUMMARY JUDGMENT

One year after Securian Life denied his second appeal, the Plaintiff filed this lawsuit. See 

Complaint [ECF No. 1]. In it, he claims that Securian Life5 breached its contract by failing to pay out 

$673,000 in AD&D benefits under the Policies. Id. at 5. 

After some protracted litigation, Securian Life filed its Motion for Summary Judgment, in 

which it advanced two arguments. First, it said that Mr. Mocombe’s death was not a covered loss. See 

Motion at 8–11. Second, it contended that it had carried its burden of showing that Mr. Mocombe’s

death fell within either of the two kinds of policy exclusions—the alcohol-and-narcotics exclusions

and/or the crime-and-felony exclusions. Id. at 11–14. Securian Life also pointed out that the Plaintiff 

failed to join Mr. Lefevre to the lawsuit. Id. at 15–16. And, Securian Life said, Mr. Lefevre is an 

indispensable party whose absence entitles the insurer to summary judgment. Id. 

5 The Plaintiff also named Securian Financial as a Defendant. But, as we explain below, Securian 

Financial isn’t a proper party to this lawsuit. 

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The Plaintiff filed a Response [ECF No. 32],6 in which he repeated the argument he had made 

in his administrative appeal—that the term “narcotic” in Policy 70328 is ambiguous as to whether it 

encompasses prescription medications or “illicit street drugs,” id. at 4. He also claimed that, even 

though the decedent’s toxicology test was “conducted by a very competent physician,” the physician

had “no way of knowing that her findings would become the linchpin in a future insurance claim 

dispute,” and he speculated that—had she known—she would have conducted a “UAC/BAC ratio 

test.” Id. at 5. Finally, he complained that the record in this case had “not developed” because (he said)

he hadn’t had the “opportunity to question the individual(s) who drafted the ambiguous language” or

the “doctor who performed the postmortem.” Id. at 6. Beyond that, the Plaintiff didn’t address any of 

Securian Life’s arguments. See generally id.

STANDARD OF REVIEW IN ERISA CASES

Generally, in federal civil cases, summary judgment is appropriate when there is “no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Celotex Corp. 

v. Catrett, 477 U.S. 317, 322 (1986); FED. R. CIV. P. 56(a). In an ERISA case, however, the district court 

“sits more as an appellate tribunal”; it “does not take evidence, but, rather, evaluates the 

reasonableness of an administrative determination in light of the record compiled before the plan 

fiduciary.” Curran v. Kemper Nat. Servs., Inc., 2005 WL 894840, at *7 (11th Cir. Mar. 16, 2005) (quoting 

Leahy v. Raytheon Co., 315 F.3d 11, 17–18 (1st Cir. 2002)). Thus, even if there are unresolved factual 

6 Securian Life filed its Motion on February 3, 3021, and the Plaintiff filed his Response more than 

two weeks later, on March 1, 2021. See Response. But the Plaintiff never moved for an extension of 

time. See generally Docket. Under the local rules, that would allow us to strike the Response and entitle 

us to treat the Motion as unopposed. See S.D. FLA. 7.1(c)(1). At the same time, “although pro se litigants 

are still bound by rules of procedure, . . . they should not be held to the same level of knowledge as 

an attorney, and, therefore, additional notice may be appropriate.” Pierce v. City of Miami, 176 F. App’x 

12, 14 (11th Cir. 2006). We’ll therefore consider the arguments the Plaintiff made in his Response. 

What we won’t consider, however, is the sur-reply he filed without permission. See Sur-Reply [ECF 

No. 34]; see also S.D. FLA. 7.1(c)(1) (“No further or additional memoranda of law”—beyond the 

motion, response, or reply—“shall be filed and served without prior leave of Court.”). 

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issues in the administrative record, “unless the administrator’s decision was wrong, or arbitrary and 

capricious, these [factual] issues will not preclude summary judgment as they normally would.” Miller 

v. PNC Fin. Servs. Grp., Inc., 278 F. Supp. 3d 1333, 1341 (S.D. Fla. 2017) (cleaned up); see also Hopp v. 

Aetna Life Ins. Co., 3 F. Supp. 3d 1335, 1339 (M.D. Fla. 2014) (“Conflicting evidence on the question 

of disability alone cannot create an issue of fact precluding summary judgment, since an 

administrator’s decision that rejects certain evidence and credits conflicting proof may be 

reasonable.”).

ERISA permits a plan participant or beneficiary to bring a civil action to recover benefits that 

are due under the terms of the plan or to enforce or clarify rights under the plan. See 29 U.S.C. § 

1132(a)(1)(B). But “ERISA does not set out the appropriate standard of review for actions under § 

1132(a)(1)(B) challenging benefit eligibility determinations.” Firestone Tire & Rubber Co. v. Bruch, 489 

U.S. 101, 109 (1989). In Firestone Tire, the Supreme Court held that, when a plaintiff challenges a denial 

of benefits under § 1132(a)(1)(B), the district court reviews the administrator’s decision “under a de 

novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to 

determine eligibility for benefits or to construe the terms of the plan.” Id. at 115.

Since Firestone, the Eleventh Circuit has developed a multi-step framework for analyzing an 

administrator’s benefits determination: 

1. Apply the de novo standard to determine whether the claim administrator’s benefitsdenial decision is “wrong” (i.e., the court disagrees with the administrator’s decision); 

if it is not, then end the inquiry and affirm the decision.

2. If the administrator’s decision in fact is “de novo wrong,” then determine whether the 

administrator was vested with discretion in reviewing claims; if not, end judicial inquiry 

and reverse the decision.

3. If the administrator’s decision is “de novo wrong” and he was vested with discretion in 

reviewing claims, then determine whether “reasonable” grounds supported it (hence, 

review his decision under the more deferential arbitrary and capricious standard).

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4. If no reasonable grounds exist, then end the inquiry and reverse the administrator’s 

decision; if reasonable grounds do exist, then determine if he operated under a conflict 

of interest.

5. If there is no conflict, then end the inquiry and affirm the decision.

6. If there is a conflict, the conflict should merely be a factor for the court to take into 

account when determining whether an administrator’s decision was arbitrary and 

capricious.

Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355 (11th Cir. 2011) (cleaned up).

Under this framework, if the administrator has discretionary authority, the court can skip to 

step three, where it must determine, not whether the decision was right or wrong, but only whether it

was arbitrary and capricious. See Mickell v. Bell / Pete Rozelle NFL Players Ret. Plan, 832 F. App’x 586, 

591 (11th Cir. 2020) (citing Doyle v. Liberty Life Assur. Co. of Bos., 542 F.3d 1352, 1357 (11th Cir. 2008)); 

see also Whiteside v. Securian Life Ins. Co., 2017 WL 8897132, at *4 (M.D. Fla. Dec. 7, 2017) (“[T]he 

undersigned will begin the analysis at step three of the Eleventh Circuit’s framework because . . . the 

dispositive question is whether [the decision] was arbitrary and capricious.” (quoting Prelutsky v. Greater 

Ga. Life Ins. Co., 692 F. App’x. 969, 972 (11th Cir. 2017)).

The administrator’s decision is “reasonable” (and, therefore, not “arbitrary or capricious”) if 

it’s supported by some “reliable evidence” in the record—and that’s true even if the plaintiff’s position

is also reasonable. See Pagnozzi v. JP Morgan Chase & Co., 2016 WL 2735677, at *9 (S.D. Fla. May 5, 

2016); see also Doyle, 542 F.3d at 1363 (even if the “evidence is close,” the administrator does not abuse 

its discretion by denying benefits).

7 This deference applies, not just to the administrator’s assessment 

of the evidence in the administrative record, but also to its interpretation of the plan terms. See White 

v. Coca-Cola Co., 542 F.3d 848, 857 (11th Cir. 2008) (“[T]he ‘reasonable interpretation’ factor and the 

arbitrary and capricious standard of review would have little meaning if ambiguous language in an 

7 In this context, the phrase “arbitrary and capricious” means “abuse of discretion.” Blankenship, 644 

F.3d at 1355 n.5 (quoting Jett v. Blue Cross & Blue Shield of Ala., 890 F.2d 1137, 1139 (11th Cir. 1989)). 

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ERISA plan were construed against the plan administrator.” (quoting Cagle v. Bruner, 112 F.3d 1510, 

1519 (11th Cir. 1997))).

ANALYSIS

Because the Plaintiff doesn’t disagree that the Policies confer Securian Life with discretionary 

authority, see generally Response, we skip to the third step of the Blankenship test and consider only 

whether Securian Life’s decision to deny AD&D benefits was arbitrary and capricious, see Pierce v. 

Wyndham Worldwide Operations, Inc., 791 F. App’x 45, 49 (11th Cir. 2019) (where “[t]he parties agree 

that the [ERISA plan] expressly grants [the administrator] the discretion to make medical necessity 

determinations[,] [t]he arbitrary and capricious standard is . . . appropriate”).8

In determining whether Securian Life’s decision was arbitrary and capricious, we are “limited 

to consideration of the material available to the administrator at the time it made its decision.” Crowder 

v. Delta Air Lines, Inc., 963 F.3d 1197, 1203 (11th Cir. 2020) (quoting Blankenship, 644 F.3d at 1354). 

The Plaintiff doesn’t suggest that Securian Life failed to provide him (or the Court) with a complete 

administrative record. See generally Response; see also Crowder, 963 F.3d at 1203 n.3 (reviewing benefits 

denial based on the extant record when the claimant did “not contend that the district court rendered 

its decision on an incomplete record”). To the contrary, the Plaintiff has stipulated to the joint 

statement of material facts, see Joint SOMF at 1 n.1 (“The Parties have conferred on February 3, 2021, 

by telephone and e-mail, and agree to this Joint Statement of Undisputed Material Facts.”), and he 

never contested Securian Life’s separate statement of material facts, see generally Docket. Still, he does 

suggest that the record in this litigation has “not developed” properly because (he says) he hasn’t had 

8 Nor could the Plaintiff have argued otherwise. The grant of discretionary authority is “apparent from 

the text of the [Policies],” Pierce, 791 F. App’x at 49, and is stated in “express language unambiguous 

in its design,” Kirwan v. Marriott Corp., 10 F.3d 784, 789 (11th Cir. 1994); see also Joint SOMF ¶ 6 

(providing that “Securian Life has the exclusive right and authority, in its sole discretion to interpret the 

group policy and decide all matters arising thereunder” (emphasis added)).

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the “opportunity to question the individual(s) who drafted the ambiguous language” or the “doctor 

who performed the postmortem.” Response at 6. 

We disagree. The Plaintiff had more than five months—between August 5, 2020 (when 

Securian Life first appeared in the case, see Answer [ECF No. 13]), and January 12, 2021 (when 

discovery closed, see Scheduling Order [ECF No. 20] at 2)—to take discovery in this case. And we can 

safely assume that this gave him plenty of time to depose the witnesses he wanted “to question” 

because he never moved either to compel discovery or to extend the scheduling order’s deadlines. See 

generally Docket. Since Securian Life filed its Motion only after the close of discovery (on February 3, 

2021), see generally Motion, the Plaintiff cannot complain about his own failure to take (or to compel) 

the depositions he only now claims to need. See, e.g., Herrera v. Bank of Am., N.A., 2016 WL 4542105, 

at *6 (S.D. Fla. Aug. 31, 2016) (“Plaintiff . . . never moved to compel better responses to the discovery, 

and the discovery deadline has now long passed. Accordingly, . . . Plaintiff has waived any right to 

assert these arguments on summary judgment.”); see also S.D. FLA. L.R. 26.1(g)(1) (requiring that 

discovery disputes be presented to the Court by motion within 30 days and providing that “[f]ailure 

to present the dispute to the Court within that timeframe, absent a showing of good cause for the 

delay, may constitute a waiver of the relief sought at the Court’s discretion”). He’s thus waived any 

claim to additional evidence outside the administrative record.9

9 Waiver aside, the Plaintiff wouldn’t have been entitled to the depositions he now asks for. 

Federal courts (it’s true) have some discretion to permit limited discovery for evidence outside the 

administrative record—but they exercise that discretion only in narrow circumstances, usually when 

there are questions about the administrator’s competency or conflicts of interest. See, e.g., Johnston v. 

Aetna Life Ins. Co., 282 F. Supp. 3d 1303, 1307–08 (S.D. Fla. 2017) (courts have discretion to permit 

discovery to assist in evaluating: “(1) the exact nature of the information considered by the fiduciary 

in making the decision; (2) whether the fiduciary was competent to evaluate the information in the 

administrative record; (3) how the fiduciary reached its decision; (4) whether, given the nature of the 

information in the record, it was incumbent upon the fiduciary to seek outside technical assistance in 

reaching a ‘fair and full review’ of the claim; and (5) to determine whether a conflict of interest existed.” 

(quoting Cerrito v. Liberty Life Assurance Co., 209 F.R.D. 663, 664 (M.D. Fla. 2002))). 

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We turn, then, to the question at hand: whether Securian Life’s decision was arbitrary and 

capricious. In holding that it wasn’t, we conclude, first, that Mr. Mocombe’s death wasn’t a covered 

loss under the Policies and, second, that the overdose was excluded by the plain terms of the Policies’ 

exclusions.

I. COVERED LOSS

The Plaintiff bears the burden of proving that Mr. Mocombe’s death was covered by the 

Policies. See Garcon v. United Mut. of Omaha Ins. Co., 779 F. App’x 595, 599–600 (11th Cir. 2019) (“A 

plaintiff suing under ERISA bears the burden of proving his entitlement to contractual benefits[.]”).

Here, the Policies provide AD&D benefits “only when [the insured’s] loss, death or dismemberment, 

results, directly and independently from all other causes, from an accidental bodily injury which was 

unintended, unexpected and unforeseen.” Joint SOMF ¶ 3. To qualify for these benefits, “[t]he bodily 

injury must be evidenced by a visible contusion or wound, except in the case of accidental drowning,” 

and it “must be the sole cause of [the insured’s] death or dismemberment.” Id.

As we’ve explained, the Plaintiff claims that the exclusion’s use of the word “narcotic” is 

ambiguous. See Response at 4, 6. But he doesn’t argue that the death was an “accidental bodily injury” 

or that a bodily injury—as evidenced by a visible contusion or wound—was the sole cause of Mr. 

Mocombe’s death. See generally id. He’s thus waived any argument that Mr. Mocombe’s death was a 

The Plaintiff doesn’t explain why he would have been entitled to depose the policy drafters or 

the Medical Examiner. See generally Response. And, notably, the Plaintiff never claims that Securian 

Life operated under a conflict of interest or that it failed to conduct a diligent investigation. See generally 

id. Deposing the policy drafters therefore wouldn’t assist the Plaintiff (or the Court) in any meaningful 

way—particularly because, as we explain below, Securian Life’s interpretation of the Policies was 

reasonable. Nor does the Plaintiff describe what he would have asked the Medical Examiner, whom 

he refers to as “very competent.” Id. at 5. And, for the reasons we outline below, Securian Life was 

entitled to rely on the Toxicology Report and the Medical Examiner’s Report in reaching its decision. 

We therefore would have denied any motion to compel these depositions—even had the Plaintiff filed 

one. See Blake v. Union Camp Int’l Paper, 622 F. App’x 853, 856 (11th Cir. 2015) (holding that the district 

court did not abuse its discretion in denying additional discovery and limiting the record “to the 

evidence that the ERISA plan administrator had before it in making its decision regarding [the 

claimant’s benefits]”). 

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covered loss, see, e.g., Messina v. City of Fort Lauderdale, 2021 WL 2567709, at *18 (S.D. Fla. June 23, 2021)

(Altman, J.) (“Arguments not properly presented in a party’s initial brief or raised for the first time in 

the reply brief are deemed waived.” (quoting In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009))). And 

this failure is fatal to his case. See Garcon, 779 F. App’x 595 at 599–600 (explaining that the plaintiff bears 

the burden of showing “his entitlement to contractual benefits”).

Admittedly, in his Complaint, the Plaintiff did claim that, because the Policies covered

“accidental” death—and since the Certificate of Death characterized Mr. Mocombe’s death as an

“Accident”—Securian Life was obligated to pay the AD&D benefits. See Complaint at 5. Of course, 

the Plaintiff waived this argument by failing to advance it in his Response to the Motion for Summary 

Judgment. See generally Response; see also Schwarz v. Bd. of Supervisors on behalf of Villages Cmty. Dev. Districts, 

672 F. App’x 981, 983 (11th Cir. 2017) (“We agree with the district court that Plaintiffs waived these 

claims by failing to address them in their summary judgment response.”). And the argument would 

have failed anyway because Mr. Mocombe’s autopsy revealed no “visible contusion or wound”—a 

prerequisite to coverage under the Policies, see Joint SOMF ¶ 3 (“The bodily injury must be evidenced 

by a visible contusion or wound, except in the case of accidental drowning.”). That’s really the end of 

the matter.

But, even had the Plaintiff made this argument—and even had Mr. Mocombe’s body shown 

some visible wound or contusion—the Plaintiff’s claim would still fail because Mr. Mocombe’s death 

wasn’t “accidental” within the meaning of the Policies. In defining the terms of an insurance contract,

we look to the federal common law of ERISA. See Hauser v. Life Gen. Sec. Ins. Co., 56 F.3d 1330, 1333 

(11th Cir. 1995) (“[B]ecause ERISA does not contain a body of contract law to govern the 

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interpretation and enforcement of employee benefit plans, federal courts must fashion a federal 

common law to regulate such lawsuits.” (cleaned up)).10

In interpreting the term “accidental” as it appears in AD&D policies, several federal courts 

have followed the First Circuit’s analysis in Wickman v. Northwestern National Insurance Co., 908 F.2d 

1077 (1st Cir. 1990). In that case, the decedent climbed over a railing on a bridge and either fell or 

jumped to his death. Id. at 1079–80. Although it was undisputed that the decedent had intentionally 

climbed the railing, the parties disagreed about whether he’d jumped or fallen off that railing. Id. at 

1083. In rejecting the murky distinction between “accidental means” and “accidental results,” the First 

Circuit developed a two-part test: First, a court must decide whether the insured subjectively expected

his actions to cause death or serious injury. Second, if the court cannot determine the insured’s 

subjective expectations, it must undergo an objective analysis, asking whether a reasonable person 

(with similar background and experience) would have expected injury or death in the circumstances.

Id.11 In Wickman, the death wasn’t “accidental” because, even if the decedent hadn’t intentionally

10 If our policy had a choice-of-law provision, we’d follow state law to interpret the contract 

language—provided it wouldn’t be “unreasonable or fundamentally unfair” to do so. See Buce v. Allianz 

Life Ins. Co., 247 F.3d 1133, 1149 (11th Cir. 2001); see also Alexandra H. v. Oxford Health Ins. Inc. Freedom 

Access Plan, 833 F.3d 1299, 1307 (11th Cir. 2016) (“In the Eleventh Circuit, we have . . . enforced 

choice-of-law provisions in ERISA contracts and used state law to interpret terms in the ERISA 

contract when the state law was not unreasonable or fundamentally unfair.”). But the parties don’t 

suggest that the Policies include any such choice-of-law provisions. See generally Motion; Response.

We do note, though—as an aside—that the Policies were issued and delivered in Maryland 

and that they (several times) refer to Maryland law. See generally Policy 90327; Policy 90328. Under 

Maryland law, death from the intentional, non-medical ingestion of narcotics is not an accident for 

purposes of an AD&D policy. See Gordon v. Metro. Life Ins. Co., 256 Md. 320, 324 (1970) (“When a man 

injects himself with a dangerous drug and no mishap occurs in the injection, though an unexpected 

result occurs, there is no reason to obliterate the distinction between means and results to insure that 

he can recover a double indemnity benefit. Perhaps in some cases there is no way to distinguish, but 

here with an intentional illegal act involving serious foreseeable risk, we are presented with cumulating 

evidence that this is not the type of hazard against which this policy provides.”). 11 The court described this objective inquiry as follows:

If the fact-finder determines that the insured did not expect an injury similar in type 

or kind to that suffered, the fact-finder must then examine whether the suppositions 

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jumped off the bridge (step one: subjective inquiry), a reasonable person would have expected injury 

or death to result from the dangerous act of climbing the railing of an elevated bridge (step two: 

objective inquiry). Id. at 1088–89.

Although the Eleventh Circuit hasn’t adopted Wickman, it has approved of the decision in 

dictum. See Buce, 247 F.3d at 1147 (“[W]e think that, in the case before it, the First Circuit was on 

eminently sound ground in ruling out ‘accidental means’ and focusing instead on the objectively 

reasonable expectations of a person in the perilous situation that the decedent had placed himself 

in.”). And several district courts in this Circuit have applied Wickman’s two-part test in cases where (as 

here) the governing ERISA plan didn’t contain a choice-of-law provision. See, e.g., Dailey for Est. of 

Dailey v. Fed. Ins. Co., 2010 WL 11613916, at *14 (N.D. Ala. Mar. 1, 2010) (“Considering the trend 

among the circuits, and the Eleventh Circuit’s statements in Buce, it is determined that the Wickman

standard should be applied to the instant case.”); see also McClurg v. Hart Ford Life & Acc. Ins. Co., 2006 

which underlay that expectation were reasonable. This analysis will prevent unrealistic 

expectations from undermining the purpose of accident insurance. If the fact-finder 

determines that the suppositions were unreasonable, then the injuries shall be deemed 

not accidental. The determination of what suppositions are unreasonable should be 

made from the perspective of the insured, allowing the insured a great deal of latitude 

and taking into account the insured’s personal characteristics and experiences. . . . 

Finally, if the fact-finder, in attempting to ascertain the insured’s actual expectation, 

finds the evidence insufficient to accurately determine the insured’s subjective 

expectation, the fact-finder should then engage in an objective analysis of the insured’s 

expectations. In this analysis, one must ask whether a reasonable person, with 

background and characteristics similar to the insured, would have viewed the injury as 

highly likely to occur as a result of the insured’s intentional conduct. An objective 

analysis, when the background and characteristics of the insured are taken into 

account, serves as a good proxy for actual expectation. Requiring an analysis from the 

perspective of the reasonable person in the shoes of the insured fulfills the axiom that 

accident should be judged from the perspective of the insured.

Wickman, 908 F.2d at 1088 (cleaned up).

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WL 2801878, at *1 (M.D. Fla. Sept. 28, 2006); Schreck v. Reliance Standard Life Ins., 104 F. Supp. 2d 

1373, 1376 (S.D. Fla. 2000) (Jordan, J.).

12

Applying Wickman, we conclude that Mr. Mocombe’s death wasn’t a covered accident. 

Notwithstanding the Plaintiff’s unsubstantiated claim that Mr. Mocombe was “legally qualified to 

prescribe and administer” the drugs on which he overdosed, see Aug. 13, 2018 Letter,

13 all the record 

evidence establishes that Mr. Mocombe was not competent to prescribe or administer these drugs to 

himself. Recall that Securian Life investigated the Plaintiff’s appeal and obtained evidence (1) that Mr. 

Mocombe wasn’t authorized by Johns Hopkins to prescribe medications and hadn’t obtained any 

medications from a Johns Hopkins facility between 2017 and 2018, and (2) that he wasn’t prescribed 

any of the medications that were found in his system. See Joint SOMF ¶¶ 23–24. By all accounts, then,

Mr. Mocombe was self-administering dangerous drugs without a prescription, without direction from 

a physician, and at great risk to his own life—making death not an “unintended, unexpected and 

unforeseen” result of his voluntary conduct. Id. ¶ 3. Recall, in this respect, the unrebutted opinion of 

Securian Life’s Associate Medical Director: that ketamine (a general anesthetic) is a dangerous drug 

that should be administered only in a hospital setting under the care of a medical professional. See Def’s 

SOMF ¶¶ 27–28. Recall, too, the undisputed medical literature, which places Mr. Mocombe’s bloodalcohol level of .17%—even standing alone—just below the fatal range. Id. ¶ 26. 

Given this uncontested medical evidence, Mr. Mocombe—a nurse anesthetist at Johns 

Hopkins, one of the finest hospitals in the world—very likely understood the extreme dangerousness 

of his conduct. But, even if he hadn’t, we think it fair to say that a reasonable person in his shoes—

12 Wickman has also been widely adopted outside our Circuit. See Stamp v. Metro. Life Ins. Co., 531 F.3d 

84, 89 (1st Cir. 2008) (collecting cases and noting that “[o]ur reasoning in Wickman has been widely 

accepted by our sister circuits”).

13 Note that, to his credit, the Plaintiff never offers this letter—or argues that his brother was 

authorized to self-prescribe these medications—in his Response. See generally Response. 

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given his extensive training and experience—would have known that injury or death could result from 

the act of ingesting enormous amounts of alcohol alongside a variegated cocktail of unprescribed 

medications, including and especially ketamine. And so, while it’s true that the Medical Examiner 

called Mr. Mocombe’s death an “accident,” his death was not an “accidental bodily injury” within the 

meaning of the Policies because it was not “unintended, unexpected and unforeseen.” Joint SOMF ¶ 

3. For this reason, too, then, Mr. Mocombe’s death was not a covered loss.

II. POLICY EXCLUSIONS

Even if Mr. Mocombe’s death were a covered loss under the Policies, Securian Life’s decision 

to deny coverage under the Policies’ exclusions was neither arbitrary nor capricious. 

To recap: Mr. Mocombe was found dead with an IV in his hand and vials of (unprescribed) 

medications scattered throughout his apartment. See id. ¶ 7; see also id. ¶¶ 23–24 (noting that, based on 

a “ScriptCheck,” the medications hadn’t been prescribed and that, according to Johns Hopkins, Mr. 

Mocombe didn’t have permission to write his own prescriptions). The Toxicology Report showed that 

Mr. Mocombe had a blood-alcohol level of .17% (which, according to Securian Life’s Associate 

Medical Director, is just below the fatal level, see Def.’s SOMF ¶ 27), and high concentrations of 

diphenhydramine, ketamine, and fentanyl in his system, see Joint SOMF ¶ 14. The Medical Examiner

concluded that diphenhydramine, ketamine, and ethanol intoxication (with fentanyl) caused Mr. 

Mocombe’s death. Id. ¶¶ 12–13. And none of the reports—the Incident Report, the Medical 

Examiner’s Report, or the Certificate of Death—pointed to any other cause of death. Id. ¶¶ 7–16.

We thus cannot say that Securian Life acted arbitrarily or capriciously in concluding that 

AD&D coverage was excluded. The Policies, after all, exclude AD&D benefits for death caused 

“directly or indirectly by, [or that] results in whole or in part from or during, or [where] there is contribution

from”: (1) the use of alcohol or prescription drugs, non-prescription drugs, illegal drugs, or 

medications (Policy 70327), or (2) “a loss to which a contributing cause was the insured’s being 

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intoxicated or under the influence of any narcotic” (Policy 70328). Id. ¶¶ 4–5 (emphases added). And 

Securian Life plainly had “a reasonable basis,” supported by “some reliable evidence,” Pagnozzi, 2016 

WL 2735677, at *9, to conclude that non-prescription drugs and alcohol caused (or, at the very least,

contributed to) Mr. Mocombe’s death. Again, the Plaintiff does not dispute that Mr. Mocombe had

(very dangerous) concentrations of alcohol and drugs in his system at the time of death—nor does he 

offer any other potential cause of death, much less one supported by the record. See generally Response; 

see also McClurg, 2006 WL 2801878, at *2 (holding that an alcohol exclusion applied because the 

claimant “was intoxicated as defined by the Policy, as his blood alcohol content constituted prima 

facie evidence that he was under the influence of alcoholic beverages” (cleaned up)); Whiteside v. 

Securian Life Ins. Co., 2017 WL 8897132, at *7 (M.D. Fla. Dec. 7, 2017) (“The autopsy report, toxicology 

results, and record evidence all establish that Decedent’s use of alcohol, at a minimum, contributed to 

her [drowning]. Thus, Defendant’s denial of Plaintiff’s claim for AD&D benefits is reasonable, and 

not arbitrary and capricious.”).

Against all this, the Plaintiff advances two arguments—both unavailing. First, he claims that 

the term “narcotic” in Policy 70328 is “ambiguous” since it can be interpreted as encompassing only

“illegal street drugs.” Response at 5. The implication is that, because Mr. Mocombe didn’t overdose 

on a “street” drug (presumably something like heroin), he’s not excluded from coverage. For starters,

though, this argument doesn’t apply to—and thus cannot undermine—Securian Life’s decision with 

respect to Policy 70327, whose exclusions don’t include the word “narcotic.” See generally Policy 70327. 

In any event, nothing in Policy 70328 limits the term “narcotic” to the Plaintiff’s “street” definition. 

To the contrary, Policy 70328 refers to “any narcotic,” Joint SOMF ¶ 5 (emphasis added), which the 

Oxford English Dictionary defines broadly as “[a] drug which when swallowed, inhaled, or injected 

into the system induces drowsiness, stupor, or insensibility, according to its strength and the amount 

taken; esp. an opiate.” OXFORD ENGLISH DICTIONARY (3d ed. 2007) (definition of “narcotic”). This 

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definition, notably, has nothing to do with the drug’s presence on the “street”—whatever that means—

and everything to do with its effects on the human body. Note, too, the last phrase of the definition 

(“esp. an opiate”). Congress likewise includes opiates—and their progeny—in its definition of 

“narcotic.” 21 U.S.C. § 802(17) (“The term ‘narcotic drug’ means any of the following whether 

produced directly or indirectly by extraction from substances of vegetable origin, or independently by 

means of chemical synthesis, or by a combination of extraction and chemical synthesis: . . . Opium, 

opiates, derivatives of opium and opiates, [etc.]”). The fentanyl that was found in Mr. Mocombe’s 

system was thus both an opioid and a narcotic. See United States v. Pellmann, 668 F.3d 918, 920 (7th Cir. 

2012) (noting that fentanyl is a Schedule II narcotic under the Controlled Substances Act); UNITED 

STATES DRUG ENFORCEMENT AGENCY, FACT SHEETS; FENTANYL, 

https://www.dea.gov/factsheets/fentanyl (last visited Aug. 24, 2021) (defining Fentanyl as a “narcotic 

(opioid)”).

But here’s the point: whatever ambiguity the Plaintiff might want us to read into the exclusion, 

we think it clear that, given everything we’ve just said, Securian Life’s interpretation of Policy 70328 

as excluding death caused by fentanyl14 is (at the very least) a reasonable one. See White, 542 F.3d at 

857 (holding that, under arbitrary and capricious review, courts defer to an administrator’s reasonable 

interpretation of ambiguous plan terms). And that’s enough to dispose of the Plaintiff’s first argument.

Second, the Plaintiff challenges the Medical Examiner’s decision to conduct a subclavian blood 

test rather than a urine test. See Response at 5 (speculating that the physician would have conducted a 

“UAC/BAC”—i.e., urine—test had she known that the Toxicology Report would be used to resolve

14 Remember: the Plaintiff concedes (or at least doesn’t dispute) that fentanyl either caused or 

contributed to Mr. Mocombe’s death. See generally Response (not challenging Securian Life’s assertion 

that fentanyl contributed to Mr. Mocombe’s death); see also Aug. 13, 2018 Letter (conceding that the 

decedent “accidentally succumbed to a therapeutic use of medications” and that his “[d]eath was 

caused by an accidental overdoes [sic] of a sleeping cocktail that [the decedent] had been prescribing 

to himself for years”).

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an insurance claim). In saying so, however, the Plaintiff simply misreads the Toxicology Report, which

does show that the examiner tested a sample of Mr. Mocombe’s urine (in addition to his blood). See 

Toxicology Report [ECF No. 29-7]. Indeed, the Plaintiff appended that same Toxicology Report to 

his first appeal—in which he (notably) didn’t take issue with the type of test the examiner administered

and didn’t contest the examiner’s conclusion that Mr. Mocombe had died of an overdose. See Aug. 13, 

2018 Letter (noting that the decedent “accidentally succumbed to a therapeutic use of medications”

and that “[d]eath was caused by an accidental overdoes [sic] of a sleeping cocktail”). In any event, 

Securian Life was entitled to rely on the Toxicology Report—which, after all, was conducted by an 

independent Medical Examiner. See Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1193 (11th Cir. 2010) 

(holding that the administrator was entitled to rely on toxicology tests over the affidavit of an eye 

witness who attested that the decedent didn’t appear to be intoxicated before the incident); Turner v. 

Delta Family-Care Disability & Survivorship Plan, 291 F.3d 1270, 1274 (11th Cir. 2002) (per curiam) 

(holding that a plan administrator is “entitled to rely on the opinion of the independent medical 

examiner”).

15

Notably, the Plaintiff never responds to Securian Life’s invocation of the crime or felony 

exclusions, see generally Response—another fatal omission. Nor could he have. The Maryland Criminal 

Code lists fentanyl and ketamine—both found in the decedent’s system, see Joint SOMF ¶¶ 11–16—

15 See also Stamp v. Metro. Life Ins. Co., 466 F. Supp. 2d 422, 426 (D.R.I. 2006) (“Because the blood 

alcohol level found by the Medical Examiner is unequivocal evidence of [the decedent’s] intoxication 

at the time of death, the question of whether he stopped at a bar is not a material factual dispute, and 

the Court need not speculate as to its truth.”); Sawyer v. Potash Corp. of Saskatchewan (Potashcorp), 417 F. 

Supp. 2d 730, 741 (E.D.N.C. 2006) (“The court views it to be particularly relevant that plaintiff at no 

time submitted any evidence or argument for inclusion in the administrative record to contradict or 

contest [the administrator’s] factual finding of intoxication.”); Veal v. Nationwide Life Ins. Co., 2010 WL 

1380170, at *3 (N.D. Fla. Mar. 31, 2010) (deferring to a toxicology report despite the plaintiff’s 

unspecified objections); cf. Cornish v. U.S. Life Ins. Co. of City of N.Y., 2009 WL 3231351, at *13 (W.D. 

Ky. Sept. 30, 2009) (declining to consider evidence not provided to the plan administrator regarding 

the reliability of post-mortem blood-alcohol testing).

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as “Schedule II controlled dangerous substances,” MD. CODE ANN., CRIM. LAW §§ 5-403(a)(3), 5-

403(c)(9), 5-404(f)(2) (West 2021); and it makes it a misdemeanor to possess those substances, unless 

they’re prescribed by an authorized provider, see id. § 5-601(a)(1), (c). That’s enough for us to 

conclude—especially under ERISA’s deferential standard of review—that Securian Life’s decision to 

exclude coverage under Policy 70327 wasn’t arbitrary or capricious. See Joint SOMF ¶ 4 (noting that 

Policy 70327 excludes death that “results in whole or in part from or during . . . [the insured’s] 

participation in, or attempt to commit, a crime, assault, felony, or any illegal activity, regardless of any 

legal proceedings”).

16

III. REMAINING ISSUES

Securian Life argues that Securian Financial isn’t a proper party to this lawsuit because it didn’t 

administer the Policies or make any of the benefits determinations. See Motion at 16. The Plaintiff 

doesn’t address this argument either—nor does he contend that Securian Financial was somehow 

involved in the Policies’ administration. See generally Response. For this additional reason, then, we 

enter judgment in favor of Securian Financial. See Garren v. John Hancock Mut. Life Ins. Co., 114 F.3d 

186, 187 (11th Cir. 1997) (“The proper party defendant in an action concerning ERISA benefits is the 

party that controls administration of the plan.”).17

***

After careful review, the Court hereby ORDERS AND ADJUDGES as follows: 

16 We’re less persuaded by Securian Life’s invocation of the Policy 70328 exclusion, which is expressly 

limited to felonies. See Joint SOMF ¶ 5 (Policy 70328 excludes death that “results in whole or in part 

from or during, or [where] there is contribution from . . . the insured’s commission of, or attempt to 

commit a felony, or to which a contributing cause was [the insured’s] being engaged in an illegal 

occupation”). According to Securian Life, it’s a felony in Maryland to engage in prescription fraud. See 

Motion at 14 (citing MD. CODE ANN., CRIM. LAW §§ 5-606, 5-607 (West 2021)). But Securian Life 

doesn’t point to—and there doesn’t seem to be—any evidence that Mr. Mocombe engaged in 

prescription fraud. 17 Securian Life also contends that it’s entitled to judgment because the Plaintiff failed to join Mr. 

Lefevre, the co-primary beneficiary and (according to Securian Life) an “indispensable party.” Motion 

at 15–16. But, since we’ve granted Securian Life’s Motion on other grounds, we needn’t address this 

alternative argument here.

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1. Securian Life’s Motion [ECF No. 30] is GRANTED. 

2. Pursuant to FED. R. CIV. P. 58, the Court will enter final judgment separately.

3. The Clerk of Court shall CLOSE this case.

4. All other pending motions are DENIED as moot, all other deadlines are 

TERMINATED, and any remaining hearings are CANCELLED.

DONE AND ORDERED in Fort Lauderdale, Florida, this 31st day of August 2021.

_________________________________

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

cc: Rony Y. Jean Baptiste, pro se 

counsel of record

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