IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60049

LINDSEY GREEN; BRENDA GREEN,

Plaintiffs-Appellants,

v.

LIFE INSURANCE COMPANY OF NORTH AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

CARL E. STEWART, Chief Judge:

Lindsey Green and Brenda Green (collectively “Plaintiffs”) appeal the 

district court’s grant of summary judgment in favor of Life Insurance of North 

America (“LINA”) upholding LINA’s denial of life insurance benefits to 

Plaintiffs, beneficiaries of the two policies at issue. Plaintiffs also appeal the 

modification of a discovery order. We AFFIRM both of these decisions.

United States Court of Appeals

Fifth Circuit

FILED

June 11, 2014

Lyle W. Cayce

Clerk

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FACTS AND PROCEDURAL HISTORY

Joshua Green (“Green”), husband of Lindsey Green and son of Brenda 

Green, died while operating a boat on July 16, 2010. Around 8:20 p.m, he called 

his wife to say he was on his way home. When he did not arrive, she called the 

police. The Coast Guard found Green in his boat the next morning. He had 

died because of a head injury sustained when his boat struck the support legs 

of a landing light at Keesler Air Force Base.1 The police report and radio log 

on the incident noted that Green had a blood alcohol content of .243, there were 

empty beer bottles and cans in the boat, he had not been using his running 

lights,2 and when he had spoken to his wife he sounded intoxicated. Sunset on 

July 16, 2010 occurred at 7:59 p.m. and civil twilight, the point at which 

terrestrial objects become indistinguishable, was 8:26 p.m. The official death 

certificate declared the death to be accidental, occurring when Green struck a 

concrete piling. It listed the immediate causes of death as (1) contusions of the 

brain, (2) depressed skull fracture, and (3) violent impact to the top of the head. 

It listed as a significant other condition acute alcohol intoxication.

A. Green’s Life Insurance Policies

Plaintiffs sought to recover on two Accidental Death and 

Dismemberment (“AD&D”) policies Green held with Life Insurance Company 

of North America (“LINA”) through his employer, Northrop Grumman

Corporation. The policies are governed by the Employee Retirement Income 

Security Act, 29 U.S.C. § 1001, et seq. (“ERISA”). LINA is the issuer, insurer, 

claims administrator, and plan administrator3 of the two policies. The 

1 Both parties agree the light was not lit.

2 Both parties agree that running lights are merely navigational, indicating the size, 

position, or course of the boat. There is no evidence in the record that he had a spotlight on 

board, which would have shone light on the path in front of him. 

3 Although in the administrative record LINA disclaimed any responsibility for the 

plan’s summary description booklet, a responsibility of the plan’s administrator, LINA does 

not challenge that it is considered a plan administrator for these policies on appeal. 

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policyholder is the Trustee of the Group Insurance Trust for Employers in the 

Manufacturing Industry, and Northrop Grumman is the subscriber of the 

policy. The policies defined a “Covered Accident” as: 

[A] sudden, unforeseeable, external event that results, 

directly and independently of all other causes, in a 

Covered Injury or Covered Loss and meets all of the 

following conditions: 1. occurs while the Covered 

Person is insured under the policy; 2. is not 

contributed to by disease, Sickness, mental or bodily 

infirmity; 3. is not otherwise excluded under the terms 

of this policy.

The policies included as a “Common Exclusion” from recovery number 8:

[O]perating any type of vehicle while under the 

influence of alcohol or any drug, narcotic or other 

intoxicant including any prescribed drug for which the 

Covered Person has been provided a written warning 

against operating a vehicle while taking it. Under the 

influence of alcohol, for purposes of this exclusion, 

means intoxicated, as defined by the law of the state 

in which the Covered Accident occurred.

B. Procedural History

LINA initially denied Plaintiffs’ claims for three reasons: (1) Green’s 

death was not a “Covered Accident” because he operated a vehicle while 

intoxicated; (2) Green’s death was not a “Covered Accident” because he 

operated a boat at night without the aid of lights; and, (3) Green was legally 

intoxicated and the policies excluded recovery for any injury caused by 

operating a vehicle under the influence of alcohol or drugs. Plaintiffs appealed 

alleging that LINA: (1) misinterpreted Mississippi and federal law, which 

required foreseeability to be viewed from the standpoint of the insured; (2) 

misinterpreted the policy’s definition of vehicle; (3) ignored Green’s cause of 

death; and (4) relied on an invalid blood sample. After notifying Plaintiffs that 

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they would require an extension to address Plaintiffs’ arguments, LINA denied 

this appeal nearly three months later. LINA reiterated that Green 

intentionally operated his boat while intoxicated, making the risk of injury or 

death substantially certain, foreseeable, and not independent of all causes. 

Separately, LINA relied on the policies’ exclusion of coverage for any accident 

involving the operation of a vehicle while intoxicated. 

On June 3, 2011, Plaintiffs filed suit in federal district court seeking 

recovery. Throughout the discovery process, LINA was reluctant to provide 

certain documents. The magistrate judge issued an order compelling discovery 

but later modified it. The district court affirmed this decision. Both parties 

filed motions for summary judgment. The district court granted LINA’s motion 

for summary judgment and denied Plaintiffs’. Plaintiffs timely appealed both 

the modified discovery order and grant of summary judgment to LINA. We 

address each in turn.

DISCUSSION

A. Discovery Order

The magistrate judge reconsidered and modified the original discovery 

order after LINA demonstrated that the order would require a review of 25,000 

claims. The modified order required LINA to produce: (1) any policies or 

procedures which could have been utilized but limited to current and past 

policies and procedures for three years prior to the incident; and, (2) claims 

demonstrating LINA’s interpretation of Northrop Grumman plans’ 

intoxication exclusion for participants similarly situated to Green since 2007. 

The AD&D guide, policies, and manuals Plaintiffs sought had not been used 

since 2002 and, because outdated policies and procedures were irrelevant 

under ERISA, see 29 C.F.R. § 2560.503–1(m)(8), the magistrate judge did not 

order their production. The district court affirmed this decision. 

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We review a district court’s decision to limit discovery for abuse of 

discretion. Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 261 (5th 

Cir. 2011). A district court abuses its broad discretion when its decision is 

based on an erroneous view of the law, but we will only vacate a court’s 

judgment if it affected the substantial rights of the appellant. Id. The 

appellant must prove both abuse of discretion and prejudice. Id. We have 

instructed district courts to “monitor discovery closely” in ERISA cases and to 

limit discovery if “the burden or expense of the proposed discovery outweighs 

its likely benefit, considering the needs of the case, . . . and [inter alia] the 

importance of the discovery in resolving the issues.” Id. at 264 (internal 

quotation marks and citations omitted). Given these considerations, we hold 

that there was no error in modifying this discovery order.

B. The Policies

1. Standard of Review

“Standard summary judgment rules control in ERISA cases.” Cooper v. 

Hewlett–Packard Co., 592 F.3d 645, 651 (5th Cir. 2009) (internal quotation 

marks omitted). We review a “district court’s grant of summary judgment de 

novo, applying the same standards as the district court.” Id. 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.” Fed. R. Civ. 

P. 56(a). “When parties file cross-motions for summary judgment, we review 

each party’s motion independently, viewing the evidence and inferences in the 

light most favorable to the nonmoving party.” Duval v. N. Assur. Co. of Am., 

722 F.3d 300, 303 (5th Cir. 2013) (internal quotation marks omitted).

If the plan gives the administrator discretionary authority to determine 

eligibility for benefits or to construe the plan’s terms, we review a decision to 

deny benefits only for abuse of discretion. Atkins v. Bert Bell/Pete Rozelle NFL 

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Player Ret. Plan, 694 F.3d 557, 566 (5th Cir. 2012). If there is no such grant of 

discretion, our review is de novo. Id. “Whether the district court employed the 

appropriate standard in reviewing an eligibility determination made by an 

ERISA plan administrator is a question of law” that we review de novo. Ellis 

v. Liberty Life Assur. Co. of Bos., 394 F.3d 262, 269 (5th Cir. 2004). However, 

“with or without a discretion clause, a district court rejects an administrator’s 

factual determinations in the course of a benefits review only upon the showing 

of an abuse of discretion.” Dutka ex rel. Estate of T.M. v. AIG Life Ins. Co., 573 

F.3d 210, 212 (5th Cir. 2009). 

Plaintiffs argue that the district court erred when it reviewed LINA’s 

determination for abuse of discretion only. The district court relied on 

language in the summary plan description (“SPD”) to grant LINA discretion to 

interpret the policy’s terms. Plaintiffs argue that this was improper in light of 

the Supreme Court’s decision in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011) 

and our decision in Koehler v. Aetna Health Inc., 683 F.3d 182 (5th Cir. 2012). 

LINA contends that the plan does confer discretion when read as a whole, 

specifically relying on the language in both the SPD and in the “claims 

provisions” section of the plan. The “claims provisions” section contains a 

“proof of loss” subsection, which states “[w]ritten or authorized electronic proof 

of loss satisfactory to Us must be given . . . .” Plaintiffs respond that there is a 

circuit split over whether this “satisfactory to Us” language is sufficient to 

confer discretion and that it is not sufficient in this case.4 See Gross v. Sun 

4 Plaintiffs also argue that LINA’s conflict of interest, failure to comply with ERISA 

procedures, such as denying the appeal outside of the 60 day window, and per se policy 

against covering alcohol-related incidents demand a de novo standard of review. These 

arguments are unavailing. This court and the Supreme Court have been clear that a conflict 

of interest does not change the standard of review but affects only the amount of deference 

given under an abuse of discretion standard of review. Metro. Life Ins. Co. v. Glenn, 554 U.S. 

105, 115–19 (2008); Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 539 (5th Cir. 2012). The 

same is true for the procedural irregularities and LINA’s alleged per se practices. See Glenn, 

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Life Assur. Co. of Can., 734 F.3d 1, 12–13 (1st Cir. 2013) (discussing at length

the circuit split on this issue); see also Cosey v. Prudential Ins. Co. of Am., 735 

F.3d 161, 168 & n.3 (4th Cir. 2013) (holding that the court “now join[s] the 

circuits that decline to impose an abuse-of-discretion standard of review” based 

on this language, and therefore, disagreeing with the “minority of circuits” that 

have concluded that the language does confer discretion). 

We need not decide this issue because even under a de novo standard of 

review Plaintiffs’ claims are unavailing. Therefore, we assume without 

deciding that the standard of review for these policies is de novo. 

2. Green’s Accident 

LINA determined that the circumstances of Green’s death were not 

covered by the policies on two separate grounds: (1) the policies’ exclusion 

precluded coverage for an accident occurring while an insured operated a 

vehicle while intoxicated; and (2) the accident was not a “Covered Accident” as 

defined by the policies because it was a foreseeable result of Green’s actions. 

Because we conclude that LINA properly applied the policy exclusion we need 

not address whether the accident was a “Covered Accident” as defined by the 

policies.

Plaintiffs argue that this case is identical to Firman and that because 

LINA applied a per se policy excluding coverage for any death involving 

554 U.S. at 118–19; Firman, 684 F.3d at 539. Further, LINA adequately refutes Plaintiffs’ 

allegations and establishes its compliance with ERISA. To the extent Plaintiffs rely on a 

Tenth Circuit case, LaAsmar v. Phelps Dodge Corp. Life Accidental Death & Dismemberment 

and Dependent Life Ins. Plan, 605 F.3d 789 (10th Cir. 2010), for the proposition that a delay 

in deciding an appeal justifies a de novo standard of review, the reasoning from that case is 

inapplicable here. LINA complied with ERISA regulations for seeking an extension and 

informed Plaintiffs of the delay. In any event, this court rejects “arguments to alter the 

standard of review based on procedural irregularities in ERISA benefit determinations, such 

as delays in making a determination,” without a showing of “potential wholesale or flagrant 

violations that evidence an utter disregard of the underlying purpose of the plan.” Atkins v. 

Bert Bell/Pete Rozelle NFL Player Ret. Plan, 694 F.3d 557, 567 (5th Cir. 2012) (internal 

quotation marks omitted).

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alcohol, regardless of any policy exclusions, they should be able to recover. 

Plaintiffs’ argument misses the mark. This case is not identical to Firman. 

First, Green’s plan included an explicit exclusion for alcohol-related deaths 

whereas the plan in Firman did not. The application of such an exclusion does 

not amount to a per se practice or abuse of discretion. Second, unlike the plan 

in Firman, Green’s policy clearly defined a “Covered Accident.” A major point 

of contention in Firman was that LINA interpreted “accident” to mean 

“unforeseeable,” which the court concluded was a broader definition than 

necessary. 684 F.3d at 542–43. Here, the definition in the policies included 

the term “unforeseeable.” Finally, unlike Firman there is evidence in addition 

to Green’s blood alcohol content that supports the denial of benefits. This 

additional evidence includes the toxicologist’s report and Green’s actions the 

night of the accident, which include operating a boat at night without lights. 

Therefore, we conclude that Firman is distinguishable from this case and does 

not dictate the result. 

Plaintiffs next argue that the exclusion is inapplicable because it

requires the operation of a “vehicle” while intoxicated and “vehicle” is a term 

that does not unambiguously include a boat—which is what Green was 

operating when the accident occurred. Plaintiffs urge that “vehicle” must be 

defined according to Mississippi law, and because it is ambiguous, it must be 

construed in favor of Green. Plaintiffs note that under Mississippi law, a 

vehicle is something that must be used “upon a highway,” and therefore, 

cannot include a boat. See Miss. Code Ann. § 63-3-103(a). Additionally, 

Plaintiffs assert that Mississippi also clearly distinguishes between “vehicles” 

and “watercrafts.” See Miss. Code Ann. § 63-3-103(b). Finally, Plaintiffs argue 

that federal law recognizes that a “vessel” is not a “vehicle,” and therefore, 

LINA’s conclusion that the exclusion applies is erroneous.

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“Federal common law governs rights and obligations stemming from 

ERISA-regulated plans, including the interpretation” of policy provisions at 

the heart of this dispute. Provident Life & Accident Ins. Co. v. Sharpless, 364 

F.3d 634, 641 (5th Cir. 2004).5 “When construing ERISA plan provisions, 

courts are to give the language of an insurance contract its ordinary and 

generally accepted meaning if such a meaning exists.” Id. We “interpret the 

contract language in an ordinary and popular sense as would a person of 

average intelligence and experience, such that the language is given its 

generally accepted meaning if there is one.” Wegner v. Standard Ins. Co., 129

F.3d 814, 818 (5th Cir. 1997) (internal quotation marks omitted). “Only if the 

plan terms remain ambiguous after applying ordinary principles of contract 

interpretation are we compelled to apply the rule of contra proferentum and 

construe the terms strictly in favor of the insured.” Id.

Mississippi law does not apply to the interpretation of “vehicle” as 

utilized in Green’s policies’ exclusion. The exclusion explicitly states that 

benefits will not be paid “for any Covered Injury or Covered Loss, which, 

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

following . . . operating any type of vehicle while under the influence of alcohol 

. . . .” The next sentence of this exclusion states: “[u]nder the influence of 

alcohol, for purposes of this exclusion, means intoxicated, as defined by the law 

of the state in which the Covered Accident occurred.” Contrary to Plaintiffs 

repeated assertions, this does not mean that Mississippi law applies to the 

interpretation of the word “vehicle.” Mississippi law very clearly applies to 

interpret “intoxicated” and not “vehicle.”

5 “[W]e may draw guidance from analogous state law,” however, such guidance can 

only be used “to the extent that it is not inconsistent with congressional policy concerns.” 

Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997) (internal quotation marks

omitted). 

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We hold that the plain meaning of the word “vehicle” as used in Green’s 

policies is unambiguous and broad enough to encompass a boat. The common 

and generally accepted meaning of “vehicle” is that it is “a means of carrying 

or transporting something.” See Webster’s Third New International Dictionary

2538 (2002);6 see also Black’s Law Dictionary 1693 (9th ed. 2009) (defining 

vehicle as “an instrument of transportation or conveyance” and “any 

conveyance used in transporting passengers or things by land, water, or air”). 

The usage of the word “vehicle” in the policies unambiguously reinforces this

generally accepted meaning of “vehicle.” The exclusion explicitly refers to “any 

type of vehicle,” evidencing a clear intent for the broadest definition of this term 

to apply. (emphasis added). The general definitions section defines an 

“[a]ircraft” as “a vehicle.” In another section the policies refer to an 

“Automobile” and define it extensively as “a self-propelled, private passenger 

motor vehicle with four or more wheels which is a type both designed and 

required to be licensed for use on the highway of any state or country.” If the 

word “vehicle” was to have the interpretation Plaintiffs desire—namely as a 

device that may be transported on a highway—then there was no reason to 

include this definition for “Automobile.” Simply referring to it as a “vehicle” 

would have sufficed. An ordinary person reading this exclusion provision in 

these specific policies would conclude that the term “vehicle” encompasses a 

boat.

Plaintiffs are correct that Mississippi and federal law define “vehicle” 

and “motor vehicle” differently in other contexts.7 However, this fails to create 

ambiguity concerning the term “vehicle” as used in these policies. In the 

ERISA context, this court is not bound to construe the terms in favor of the 

6 Webster’s cites as examples: a locomotive, airplane, and submarine. See id.

7 Specifically, Plaintiffs cite In re Greenway, 71 F.3d 1177, 1180 (5th Cir. 1996) (per 

curiam), 1 U.S.C. § 4, and Miss. Code Ann. § 63-3-103(a). 

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insured unless there is ambiguity. See Wegner, 129 F.3d at 818. Because there 

is no ambiguity here and the plain meaning of “vehicle” includes a boat, LINA 

correctly interpreted “vehicle” to include a boat. Therefore, we hold that LINA 

properly denied coverage to Plaintiffs as Green’s death fell within the policies’ 

explicit exclusion for accidents involving the operation of a vehicle while 

intoxicated.

CONCLUSION

For the aforementioned reasons, we AFFIRM the district court’s grant of 

summary judgment to LINA and its denial of summary judgment to Plaintiffs.

We also AFFIRM the modification of the discovery order.

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