FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT C. WOLF,

Plaintiff-Appellee,

v.

LIFE INSURANCE COMPANY OF 

NORTH AMERICA,

Defendant-Appellant.

No. 21-35485

D.C. No.

3:20-cv-05684-

BHS

OPINION

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted June 8, 2022

Seattle, Washington

Filed August 25, 2022

Before: Ronald Lee Gilman,* Sandra S. Ikuta, and

Eric D. Miller, Circuit Judges.

Opinion by Judge Gilman;

Concurrence by Judge Ikuta

* The Honorable Ronald Lee Gilman, United States Circuit Judge 

for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 WOLF V. LIFE INS. CO. OF NORTH AMERICA

SUMMARY**

ERISA

The panel affirmed the district court’s summary 

judgment in favor of the plaintiff in an action under the 

Employee Retirement Income Security Act concerning the 

denial of an insurance claim based on the plaintiff’s son’s 

accidental death.

The son died in a one-car collision. He was intoxicated 

and had been driving at a high speed in the wrong direction 

down a one-way road when he hit a speed bump and lost 

control of the car, which ultimately flipped over and landed 

upside down in a body of water adjoining the road. The 

accidental death and dismemberment insurance policy 

obtained from defendant Life Insurance Company of North 

America (LINA) by the plaintiff via his employer paid 

benefits for a “Covered Accident,” defined as “[a] sudden, 

unforeseeable, external event that results, directly and 

independently of all other causes.” 

Reviewing de novo, the panel held that to determine 

whether the son’s death was the result of an “accident” under 

the policy, it must apply the Padfield test, an “overlapping 

subjective and objective inquiry.” The panel concluded that, 

under this test, there was insufficient evidence in the 

administrative record to determine the son’s subjective 

expectation at the time he died. Proceeding to the objective 

inquiry, the panel declined to consider for the first time on 

appeal LINA’s argument that because the policy defined the 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
 WOLF V. LIFE INS. CO. OF NORTH AMERICA 3 

term “accident” as “a sudden, unforeseeable, external 

event,” the district court should have asked whether the son’s 

death was “reasonably foreseeable” rather than applying the 

Padfield test by asking whether his death was “substantially 

certain.” Declining to apply an exception for purely legal 

issues, the panel concluded that the plaintiff would be unduly 

prejudiced by the belated application of a “reasonably 

foreseeable” test because not only did LINA fail to raise the 

argument below, but it also did not use that test when 

initially denying the plaintiff’s insurance claim. The panel 

held that, under the Padfield test, the son’s death was an 

“accident” because, while the facts demonstrated that the son 

engaged in reckless conduct, the record did not show that his 

death was “substantially certain” to result from that conduct. 

Accordingly, the district court correctly determined that the 

son’s death was covered under the insurance policy. 

 Concurring, Judge Ikuta stated that she wrote separately 

to emphasize that the panel’s opinion applied the definition 

of an “accident” set forth in Padfield v. AIG Life Ins. Co., 

290 F.3d 1121 (9th Cir. 2002), only because LINA relied on 

Padfield and forfeited its argument the insurance policy’s 

own definition of “accident” applied. 

COUNSEL

Charles C. Huber (argued), D. Michael Reilly, and Ryan P. 

McBride, Lane Powell PC, Seattle, Washington, for 

Defendant-Appellant. 

Glenn R. Kantor (argued), Sally Mermelstein, Sarah J. 

Demers, and Stacy Monahan Tucker, Kantor & Kantor LLP, 

Northridge, California, for Plaintiff-Appellee.
4 WOLF V. LIFE INS. CO. OF NORTH AMERICA

OPINION

GILMAN, Circuit Judge:

Scott Wolf, Jr. (Scott) died in a one-car collision. He 

was intoxicated and had been driving at a high speed in the 

wrong direction down a one-way road when he hit a speed 

bump and lost control of the car, which ultimately flipped 

over and landed upside down in a body of water adjoining 

the road. Scott Wolf, Sr. (Wolf), Scott’s father, brought suit 

against Life Insurance Company of North America (LINA), 

alleging that LINA wrongfully denied his insurance claim 

based on Scott’s accidental death. The district court granted 

Wolf’s motion for summary judgment.

On appeal, LINA argues that, under the language of the 

insurance policy, an event is not an “accident” if it is 

“reasonably foreseeable.” But LINA did not present that 

argument to the district court, nor to Wolf when it denied his 

claim, so it has forfeited that argument here. The appropriate 

test for whether the death in this case was an “accident” is 

therefore the one that the district court applied, which asks 

whether the resulting death was “substantially certain” to 

occur from the insured’s conduct. Although the insured’s 

conduct here was extremely reckless, the district court 

correctly concluded that his death was not “substantially 

certain” to occur. Accordingly, we AFFIRM the judgment 

of the district court.

I. BACKGROUND

A. The AD&D policy

Wolf maintains an accidental death and dismemberment 

(AD&D) insurance policy from LINA through his employer. 

The policy pays benefits for, among other things, a “Covered 
WOLF V. LIFE INS. CO. OF NORTH AMERICA 5

Accident,” which is defined as “[a] sudden, unforeseeable, 

external event that results, directly and independently of all 

other causes.” Scott, Wolf’s 26-year-old son, was insured 

under this policy for $50,000 as his parents’ dependent.

The policy includes a list of exclusions to coverage, such 

as for injuries resulting from skydiving, hang-gliding, 

parachuting, or acrobatic flying. Notably, however, the 

policy does not have any exclusion for incidents occurring 

while the insured was under the influence of alcohol, 

speeding, or engaged in reckless conduct.

B. Scott’s fatal drive

The incident in question occurred around 4:00 a.m. on 

August 19, 2018 in Clearwater, Florida. Witnesses reported 

that Scott was driving in the wrong direction on a one-way 

service road next to the Courtney Campbell Causeway, 

which is surrounded on both sides by water. The police later 

determined that Scott was traveling at approximately 

65 miles per hour, despite the service road having a speed 

limit of 10 miles per hour. He hit a speed bump, which 

caused him to lose control of the car, overcorrect, and veer 

off the road. His car then struck several tree stumps, went 

airborne over the rocky coastline, and landed upside-down 

in the adjacent bay.

A deputy from the Clearwater Police Department 

quickly arrived on scene and pulled Scott from the 

submerged, overturned car with the assistance of a nearby 

onlooker. Scott was transported to a local hospital, where he 

was pronounced dead. After performing an autopsy, the 

county medical examiner determined that Scott had suffered 

blunt-impact injures to the head and neck and had died as a 

result of drowning. The examiner listed the “manner of 

death” as “Accident (Drove automobile off roadway into bay 
6 WOLF V. LIFE INS. CO. OF NORTH AMERICA

while intoxicated).” In addition, the medical examiner’s 

toxicology report revealed that Scott had a blood alcohol 

content (BAC) of .20 grams per deciliter (0.20%).

C. LINA’s denial of coverage

Wolf filed a timely claim for accidental-death benefits 

with LINA in June 2019. Roughly one month later, LINA 

issued a denial letter, concluding “that Scott’s death was a 

foreseeable outcome of his voluntary actions, and thus, the 

loss was not a result of a Covered Accident as the term is 

defined” under the policy (emphases in original). In 

explaining its decision, LINA wrote:

Foreseeability can be analyzed by examining 

whether the Insured’s intentional conduct 

was objectively reasonable, or reasonable 

based on the judgment of a similar individual. 

Because we cannot determine Scott’s 

subjective expectation prior to the incident, 

we must consider whether a reasonable 

person with a similar background would have 

viewed serious injury or death as highly 

likely to occur. He was a 26 year old with a 

valid Driver’s License and a Bachelor’s 

Degree, employed as a Technical Manager 

for a company contracted by the U.S. 

Department of Energy. The impairments 

associated with a BAC of 0.20% also support 

that he was operating his vehicle under highly 

unsafe conditions. For these reasons, it is 

reasonable to assume that a person of similar 

education and age-based experience would 

have understood that serious injury or even 

death would be highly likely to occur while 

operating a vehicle . . . with a BAC of 0.20% 
WOLF V. LIFE INS. CO. OF NORTH AMERICA 7

and speeding at 6.5 times over the legal speed 

limit, the wrong way down a road.

(emphasis in original).

Wolf appealed, contending that if LINA “wanted to 

exclude coverage for accidental deaths arising from 

negligent or even reckless conduct on behalf of the deceased, 

they should have stated so in plain English.” He further 

pointed out that the death certificate stated that Scott’s death 

was both an accident and was due to drowning.

In reviewing Wolf’s internal appeal, LINA engaged a 

toxicologist, Dr. Theodore Siek, to opine on what impact 

Scott’s intoxication level might have had on his driving. 

Dr. Siek observed that the “physical and mental 

impairments” of someone with a BAC above 0.18% 

“include: 1) loss of the sense of care and caution, 2) a slower 

perception and reaction time, 3) loss of coordination, and 

4) less ability to multi-task.” He further opined that Scott’s 

“immunity to pain, loss of coordination, and inability to 

perceive his dangerous situation were all impacted by 

[Scott’s] gross ethanol intoxication. Both his driving ability, 

his attitude about safety, and ability to rescue himself from 

drowning were all significant factors in his accident and 

drowning death.”

Citing Dr. Siek’s statements, LINA upheld its denial of 

benefits following Wolf’s internal appeal. LINA again 

explained its analytical framework for assessing whether an 

event was an “accident” under the policy:

The analytical framework to determine if the 

event was unforeseeable is for [LINA] to 

determine if the insured subjectively lacked 

an expectation of death or injury. If so, LINA 
8 WOLF V. LIFE INS. CO. OF NORTH AMERICA

asks whether the suppositions that underlay 

the insured’s expectation were reasonable, 

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. If the 

subjective expectation of the insured cannot 

be ascertained, LINA asks whether a 

reasonable person, with background and 

characteristics similar to the insured, would 

have viewed the resulting injury or death as a 

probable consequence highly likely to occur 

as a result from the insured’s conduct. Given 

the common meanings of the words, we 

interpret highly likely to occur to entail a 

level of inevitability that is of a significant or 

large degree.

(emphasis added.) LINA concluded that a reasonable person 

with a background and characteristics similar to Scott’s 

“would have viewed the resulting death as a probable 

consequence substantially likely to occur.”

D. The instant lawsuit

Wolf sued LINA for benefits under the Employee 

Retirement Income Security Act of 1974 (ERISA), 

29 U.S.C. §§ 1132(a), (e), (f) and (g). The parties informed 

the district court that they would file simultaneous crossmotions and responsive briefs. They proposed that the 

court’s judgment be based entirely on the briefs and the 

administrative record.

LINA moved for judgment under Rule 52 of the Federal 

Rules of Civil Procedure, and Wolf filed a motion for 

summary judgment under Rule 56 of the Federal R ules of 
WOLF V. LIFE INS. CO. OF NORTH AMERICA 9

Civil Procedure. In his motion, Wolf cited statistical 

information on drunk driving that was not part of the 

administrative record. After concluding that it would not 

consider Wolf’s statistical information, the district court 

analyzed the case under the framework adopted by this court 

in Padfield v. AIG Life Insurance Co., 290 F.3d 1121 (9th 

Cir. 2002).

The district court acknowledged that “Scott was 

engaging in extremely reckless behavior,” but concluded 

that “a reasonable person would not have viewed [Scott’s 

fatal] injury as substantially certain to occur as a result of his 

actions, rendering his death accidental under the policy.” 

LINA has timely appealed that ruling.

II. ANALYSIS

A. Standard of review

In an appeal under ERISA, we review de novo a district 

court’s grant of summary judgment, employing the same 

standard that governed the district court’s review of the plan 

administrator’s decision. Williams v. Nat’l Union Fire Ins. 

Co. of Pittsburgh, Pa., 792 F.3d 1136, 1139 (9th Cir. 2015). 

De novo review applies to the denial of benefits under an 

ERISA-governed insurance policy where, as is undisputed 

here, the policy does not assign the administrator 

discretionary authority to determine eligibility of benefits or 

to construe the plan’s terms. Padfield, 290 F.3d at 1124–25. 

In such cases, we “simply proceed[] to evaluate whether the 

plan administrator correctly or incorrectly denied benefits.” 

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th 

Cir. 2006) (en banc).
10 WOLF V. LIFE INS. CO. OF NORTH AMERICA

B. The Padfield test controls

The key question before us is a narrow one: was Scott’s 

death the result of an “accident” under his father’s insurance 

policy? But in order to answer that question, we must first 

decide how to define the word “accident.”

To determine whether an event is an “accident” under an 

ERISA-governed AD&D policy, this court has endorsed the 

widely accepted framework announced in the seminal case 

of Wickman v. Northwestern National Insurance Co., 

908 F.2d 1077 (1st Cir. 1990). Padfield, 290 F.3d at 1126. 

That analysis involves an “overlapping subjective and 

objective inquiry” under which

[t]he court first asks whether the insured 

subjectively lacked an expectation of death or 

injury. If so, the court asks whether the 

suppositions that underlay the insured’s 

expectation were reasonable, 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. If the subjective 

expectation of the insured cannot be 

ascertained, the court asks whether a 

reasonable person, with background and 

characteristics similar to the insured, would 

have viewed the resulting injury or death as 

substantially certain to result from the 

insured’s conduct.

Id. (citations omitted).

Padfield recognized that courts applying the Wickman

framework “have used a number of slightly different verbal 
WOLF V. LIFE INS. CO. OF NORTH AMERICA 11

formulations to describe the objective portion of the 

inquiry.” Id. Some courts ask whether a reasonable person 

similarly situated to the insured would view the resulting 

injury as “highly likely,” whereas others use “substantially 

certain” or “substantially likely.” Id. at 1127 (citations 

omitted). But this court held “that the ‘substantially certain’ 

test is the most appropriate one, for it best allows the 

objective inquiry to ‘serve as a good proxy for actual 

expectation.’” Id. (alterations omitted) (quoting Wickman, 

908 F.2d at 1088).

We begin by looking to the subjective portion of the 

Padfield test. The district court correctly concluded that 

there is insufficient evidence in the administrative record to 

determine Scott’s subjective expectation at the time he died. 

In Wolf’s view, two facts reveal Scott’s subjective 

expectations: (1) Scott was wearing his seatbelt when he 

crashed, and (2) he had turned on his hazard lights. 

According to Wolf, these facts suggest that Scott had no 

expectation of impending death. But these two facts do not 

shed sufficient light on Scott’s actual state of mind, nor does 

anything else in the administrative record.

We thus proceed to the objective inquiry, which is where 

the crux of the parties’ disagreement lies. LINA argues that 

because the policy defines the term “accident” as “a sudden, 

unforeseeable, external event,” the district court should have 

asked whether Scott’s death was “reasonably foreseeable” 

rather than applying the Padfield test by asking whether his 

death was “substantially certain.”

But LINA never made this argument to the district court. 

LINA averred generally that Scott’s death should not be 

deemed an “accident” under the terms of the policy, but as 

its counsel acknowledged at oral argument on appeal, it 

never specifically argued that the district court should apply 
12 WOLF V. LIFE INS. CO. OF NORTH AMERICA

a “reasonably foreseeable” test instead of Padfield’s 

“substantially certain” test. To the contrary, LINA 

represented to the district court that the Padfield test 

governed, and it argued that under that test, Scott’s death was 

not an accident.

We generally do not consider arguments raised for the 

first time on appeal. Momox-Caselis v. Donohue, 987 F.3d 

835, 841 (9th Cir. 2021). This rule, however, is subject to 

several exceptions, one of which is where “the issue 

presented is purely one of law and the opposing party will 

suffer no prejudice as a result of the failure to raise the issue 

in the trial court.” Kaass Law v. Wells Fargo Bank, N.A., 

799 F.3d 1290, 1293 (9th Cir. 2015) (citation omitted).

LINA asks us to invoke that exception here, insisting that 

we may consider the argument, despite any failure to raise it 

below, because it is a purely legal issue and we are 

conducting a de novo review. But Wolf would be unduly 

prejudiced by the belated application of a “reasonably 

foreseeable” test because not only did LINA fail to raise the 

argument below, it also did not use that test when initially 

denying Wolf’s claim.

LINA relied on Padfield’s “substantially certain” test, or 

something very close to it, to define “unforeseeable” in its 

initial denial of Wolf’s claim and on his internal appeal. 

“When making a claim determination under ERISA, an 

administrator may not hold in reserve a known or reasonably 

knowable reason for denying a claim, and give that reason 

for the first time when the claimant challenges a benefits 

denial in court.” Beverly Oaks Physicians Surgical Ctr., 

LLC v. Blue Cross & Blue Shield of Ill., 983 F.3d 435, 440 

(9th Cir. 2020) (citations and internal quotation marks 

omitted). This rule prevents a claimant from being 

“‘sandbagged’ by a rationale the plan administrator adduces 
WOLF V. LIFE INS. CO. OF NORTH AMERICA 13

only after the suit has commenced.” Harlick v. Blue Shield 

of Cal., 686 F.3d 699, 720 (9th Cir. 2012) (citation omitted).

In its initial denial, LINA phrased the objective portion 

of the two-part test as whether a reasonable person similarly 

situated to the insured “would have viewed serious injury or 

death as highly likely to occur.” Elaborating on this 

definition in its denial of Wolf’s internal appeal, LINA stated 

that it “interpret[ed] highly likely to occur to entail a level of 

inevitability that is of a significant or large degree.”

We believe that the difference between “significantly or 

largely inevitable” and “substantially certain” is purely 

semantic. In any event, LINA did not rely on a “reasonable 

foreseeability” test in denying coverage. It instead applied 

the “highly likely” common-law test for what is considered 

an “accident,” as developed in the Wickman line of cases. At 

oral argument, LINA’s counsel insisted that LINA was 

“writing to a standard it didn’t have to meet.” But whether 

it needed to meet that standard is beside the point. Having 

employed that standard in its denial of coverage, it may not 

now argue that the claim was denied because Scott’s death 

was “reasonably foreseeable,” which is “a far broader 

standard than an event that is reasonably viewed as ‘highly 

likely to occur.’” See McClelland v. Life Ins. Co. of N. Am., 

679 F.3d 755, 760 n.3 (8th Cir. 2012).

LINA responds by arguing that this is not a new reason 

for denial, and that Wolf was not “sandbagged,” because it 

consistently cited the “Covered Accident” provision as the 

reason for its denial. It notes that the denial letter states that 

“Scott’s death was a foreseeable outcome of his voluntary 

actions.” (emphasis in original). But LINA consistently 

defined “foreseeable” as “highly likely,” which is 

“fundamentally inconsistent” with a definition of 

“reasonably foreseeable.” See King, 414 F.3d at 1003 
14 WOLF V. LIFE INS. CO. OF NORTH AMERICA

(concluding that the two standards represent different bases 

on which to consider a claim for benefits).

“The two definitions are at opposite poles” because 

“[t]he common law definition asks whether the victim could 

reasonably have expected to escape the injury,” whereas the 

“foreseeability” test “asks whether the victim could 

reasonably have expected to suffer the injury.” King v. 

Hartford Life & Accident Ins. Co., 414 F.3d 994, 1008 (8th 

Cir. 2005) (en banc) (Bright, J., concurring) (emphases in 

original); see also Johnson v. Am. United Life Ins. Co., 

716 F.3d 813, 826 (4th Cir. 2013) (explaining the 

“significant difference between these standards”). Applying 

the “reasonably foreseeable” test would therefore constitute 

a new, post hoc rationale for the denial of Wolf’s claim that 

would unduly prejudice Wolf.

“Requiring that plan administrators provide a participant 

with specific reasons for denial ‘enable[s] the claimant to 

prepare adequately for any further administrative review, as 

well as appeal to the federal courts.’” Mitchell v. CB Richard 

Ellis Long Term Disability Plan, 611 F.3d 1192, 1199 n.2 

(9th Cir. 2010) (alteration in original) (quoting Halpin v. 

W.W. Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992)). 

After being told that the claim was denied because Scott’s 

death was “highly likely” to occur under the circumstances, 

Wolf was given an opportunity to appeal that decision both 

internally and in federal court by showing that Scott’s death 

was not “highly likely” or “substantially certain” to occur.

But by waiting until the case was before this court to 

argue that a much lower standard of “accident” should apply 

to the claim, LINA denied Wolf the opportunity to present 

on the internal appeal different arguments and evidence that 

would likely be relevant if he had known that LINA was 

applying the lower standard. LINA’s “reasonably 
 WOLF V. LIFE INS. CO. OF NORTH AMERICA 15 

foreseeable” test has therefore been forfeited, and Padfield’s 

“substantially certain” test applies.

C. Scott’s death was an “accident” because his death

was not “substantially certain” to occur under the

circumstances

“The question of whether drunk-driving deaths or 

injuries are ‘accidental’ for purposes of accidental death 

insurance has perplexed the judiciary for some time.” 

Johnson, 716 F.3d at 816. This court, however, has not 

previously had the occasion to weigh in and apply the 

Padfield test to a death or injury involving drunk driving. 

Events that can cause death span a vast continuum that 

range from intentionally driving off a cliff into the ocean 

below (a clear suicide) to driving off a bridge that has 

suddenly collapsed due to a structural failure (an undisputed 

accident). All jurists would agree that an accidental-death 

policy, such as the one involved here, would exclude 

coverage for driving off the cliff but allow coverage for 

driving off the bridge. The facts of this case, as in most cases 

involving drunk driving, fall somewhere in between. 

There is no categorical rule excluding insurance 

coverage for all alcohol-related deaths. Stamp v. Metro. Life 

Ins Co., 531 F.3d 84, 91 (1st Cir. 2008). Instead, courts 

“have been careful to explain that the proper approach is 

fact-specific and that the decedent’s degree of intoxication is 

particularly probative.” Id. at 91 n.9. The key facts that we 

must consider here are that Scott had a BAC of 0.20% and 

was driving his car 65 miles per hour in the wrong direction 

in a 10-miles-per-hour zone at 4:00 a.m. Although these 

facts demonstrate that Scott undoubtedly engaged in reckless 

conduct, the record does not show that his death was 

“substantially certain” to result from that conduct. 
16 WOLF V. LIFE INS. CO. OF NORTH AMERICA

Both Wolf and LINA cite various cases that support their

respective positions as to whether drunk-driving deaths are

“accidents.” In considering the cited cases, we note a clear

pattern between cases that applied de novo review versus 

those that applied the abuse-of-discretion or arbitrary-andcapricious standard. 

To our knowledge, all of the relevant cases from our 

sister circuits have held that a drunk-driving death was a 

covered accident under an AD&D policy when applying de 

novo review. In each of the circuit cases that LINA cites, 

which vary in regard to the recklessness of the insured’s 

actions, the courts were reviewing the administrator’s 

decision under the abuse-of-discretion or arbitrary-andcapricious standard. That was because the plans at issue 

vested the administrator with discretionary authority to 

determine eligibility for benefits or to construe the policy’s 

terms. See Sanchez v. Life Ins. Co. of N. Am., 393 F. App’x 

229, 230–32 (5th Cir. 2010) (BAC of 0.174%); Davis v. Life 

Ins. Co. of N. Am., 379 F. App’x 393, 394–395 (5th Cir. 

2010) (BAC between 0.28% and 0.36%); Stamp, 531 F.3d 

at 86, 87 (BAC of 0.265%); Lennon v. Metro. Life Ins. Co., 

504 F.3d 617, 619–620 (6th Cir. 2007) (BAC of 0.321%); 

Eckelberry v. Reliastar Life Ins. Co., 469 F.3d 340, 342–343 

(4th Cir. 2006) (BAC of 0.15%); Cozzie v. Metro. Life Ins. 

Co., 140 F.3d 1104, 1106–08 (7th Cir. 1998) (BAC 

of 0.252%). 

Under that far more deferential standard, courts “do not 

search for the best interpretation of a plan or even for one 

[they] might independently adopt”; instead, they ask only if 

the administrator’s interpretation of the plan was 

“reasonable.” Eckelberry, 469 F.3d at 343. Deferring to a 

“reasonable” interpretation is particularly significant, if not 

outcome-determinative, in an arena such as this where 
WOLF V. LIFE INS. CO. OF NORTH AMERICA 17

judges and commentators alike have acknowledged the 

difficulty of determining what is an “accident” when drunk 

driving is involved. See Lennon, 504 F.3d at 627 & n. 2 

(Clay, J., dissenting) (noting that “the barrage of case law” 

on the question of what the word “accident” means “suggests 

that the meaning of ‘accidental’ is anything but plain”);

Douglas R. Richmond, Drunk in the Serbonian Bog: 

Intoxicated Drivers’ Deaths as Insurance Accidents,

32 SEATTLE U. L. REV. 83, 83 (2008) (describing this as “an 

astonishingly difficult question to answer”).

Notably, the two circuits that have considered this 

question de novo both held that the drunk-driving deaths at 

issue were accidents. See Johnson, 716 F.3d at 819, 822–

23; LaAsmar v. Phelps Dodge Corp. Life, Accidental Death 

& Dismemberment & Dependent Life Ins. Plan, 605 F.3d 

789, 800, 813–14 (10th Cir. 2010). The Eighth Circuit also 

reached the same result under the far more deferential abuseof-discretion standard of review, concluding that a drunkdriving death was an “accident” under LINA’s identical 

AD&D policy. McClelland v. Life Ins. Co. of N. Am., 

679 F.3d 755, 760–61 (8th Cir. 2012). Importantly, the 

insureds in these cases were as reckless, if not more reckless, 

than Scott was here.

In Johnson, the insured was driving at 1:30 a.m. with a 

BAC of 0.289% when he lost control of his vehicle and 

veered off the road, struck a highway sign, and flipped over 

multiple times. The Fourth Circuit applied the “substantially 

certain” test in the absence of any policy definition of the 

word “accident.” 716 F.3d at 826. In the record was “only 

general statistical data regarding the extent to which a 

driver’s ability to operate a vehicle is impaired by alcohol.” 

Id. Although that data “support[ed] the conclusion that 

injury or death is a reasonably foreseeable consequence of 
18 WOLF V. LIFE INS. CO. OF NORTH AMERICA

driving at significant levels of intoxication,” the court held 

that the data did not “demonstrate[] that driving with a BAC 

of .289[%] under these circumstances [was] substantially 

certain to result in death or severe injury.” Id. (emphasis in 

original).

In LaAsmar, the insured had a BAC of 0.227% when he 

was driving in the early morning hours on a two-lane country 

road at a speed of 60 miles per hour in a 40-miles-per-hour 

zone. He was not wearing his seat belt when he was ejected 

from the car as it left the road and rolled four and one-quarter 

times. The policy at issue did not define the word 

“accident,” and the Tenth Circuit refused to supply one. 

605 F.3d at 809–13. Instead, the court asked only whether a 

reasonable person would believe that the insured’s death in 

these circumstances was the result of an “accident.” Id. 

at 806–08.

The LaAsmar court answered in the affirmative because 

a reasonable person “would call the resulting rollover an 

‘accident’ . . . whether [the insured] wrecked his truck 

because he fell asleep or lost control because he was 

speeding.” Id. at 808. “It should also be true,” the court 

concluded, “if he ran off the road because he had a BAC of 

.227[%].” Id. Although the court made clear that it was “not 

suggesting that there are no circumstances where an insured 

would be so drunk that a resulting wreck could no longer be 

deemed an accident,” it held that the facts of the case did not 

clear that bar. Id.

Finally, in McClelland, the insured had a BAC of 

0.203% when he was riding his motorcycle and “playing 

‘follow the leader’ with another motorcycle and possibly 

[another] vehicle by weaving in and out of traffic for 

approximately six miles.” 679 F.3d at 758, 761. He was not 

wearing a helmet and was estimated to be traveling at 
WOLF V. LIFE INS. CO. OF NORTH AMERICA 19

90 miles per hour when he missed a curve, slipped onto a 

gravel shoulder, and flipped several times. Id. at 758. His 

LINA insurance policy defined the word “accident” exactly 

as the policy does here.

The Eighth Circuit in McClelland applied the Wickman

test in determining whether an accident had occurred. Id. 

at 759–61. It reasoned that LINA had overlooked evidence 

indicating the insured’s subjective belief that death was not 

highly likely. Id. at 760–61. This belief was objectively 

reasonable, the court held, because although he was driving 

very fast with an elevated BAC, he “had been successfully 

performing this feat for a distance of several miles.” Id. 

at 761. The court therefore determined that LINA had 

abused its discretion in concluding that this was not an 

“accident” under the policy. Id. at 761–62.

When considered in light of Johnson, LaAsmar, and 

McClelland, the record before us does not support the 

conclusion that death was substantially certain to result from 

Scott’s conduct. His actions were quite comparable to those 

of the insureds in the cases just cited. Scott’s BAC was 

slightly less than that of the insured in McClelland, and the 

insured there drove much faster. Similarly, although Scott 

was speeding more than the insureds in Johnson and 

LaAsmar (in relation to the applicable speed limits), he was 

significantly less intoxicated than the insureds in those cases.

The record also provides little to no information that 

would allow us to assess the actual likelihood of Scott’s 

death from his actions. Johnson is particularly persuasive on 

this point. As here, the record in that case consisted chiefly 

of information supporting the “widely-accepted commonsense proposition that blood alcohol concentration is directly 

correlated with the degree of impairment an individual 
20 WOLF V. LIFE INS. CO. OF NORTH AMERICA

displays when driving after drinking.” Johnson, 716 F.3d at 

826 (internal quotation marks omitted).

The only information in the record here touching on the 

likelihood of Scott dying is found in the statements from 

Dr. Siek. He stated that “[t]he probability of accidents 

increases exponentially as the [BAC] goes above 0.08[%]” 

and that “[b]oth the driving accident and the inability to save 

himself from drowning were impacted by his state of 

intoxication.” The doctor’s opinion, however, reflects 

nothing more than the common knowledge that the 

probability of accidents increases as one gets more 

intoxicated. And, as the Tenth Circuit has pointed out, “[t]he 

fact that driving drunk may increase the chances of being 

killed in an accident does not necessarily make that accident 

expected.” LaAsmar, 605 F.3d at 811–12 (citation omitted).

In addition, Dr. Siek opined as to the specific “physical 

and mental impairments” that would result from a BAC at 

Scott’s level. Once more, though, evidence that “makes 

clear that impairment is highly likely” for someone with 

Scott’s BAC does not help answer whether that impairment 

is substantially certain to result in death. See Johnson, 

716 F.3d at 826.

None of this information sheds light on how likely 

Scott’s death was because the record is devoid of any “data 

with respect to drunk driving fatalities [or serious injuries] 

in relation to the incidents of drunk driving generally.” See 

id.; see also West v. Aetna Life Ins. Co., 171 F. Supp. 2d 856, 

903 (N.D. Iowa 2001) (holding, in a case where the insured 

fatally crashed with a BAC of 0.20%, that an insurer 

unreasonably withheld benefits because it “identifie[d] no 

evidence establishing any link between some degree of 

impairment, or even increasing degrees of impairment, and 
WOLF V. LIFE INS. CO. OF NORTH AMERICA 21

increasing probability of death or injury.” (emphasis in 

original) (internal quotation marks omitted)).

There is no doubt that “drunk driving is ill-advised, 

dangerous, and easily avoidable.” Kovach v. Zurich Am. Ins. 

Co., 587 F.3d 323, 330 (6th Cir. 2009). But many accidents, 

if not most, involve an element of negligence or even 

recklessness on the part of the insured. People all too 

frequently fail to heed stop signs, drive while intoxicated, or 

exceed the speed limit. Death caused by such conduct is, 

however, a statistical rarity, and the record before us does 

not show that Scott’s particular act of drunk driving was 

substantially certain to result in his death. The district court 

therefore correctly determined that Scott’s death was an 

“accident” and thus covered under his father’s insurance 

policy.

III. CONCLUSION

“The solution for insurance companies like [LINA] is 

simple: add an express exclusion in policies covering 

accidental injuries for driving while under the influence of 

alcohol, or for any other risky activity that the company 

wishes to exclude.” Kovach, 587 F.3d at 338. This would 

allow policyholders “to form reasonable expectations about 

what type of coverage they are purchasing without having to 

make sense of conflicting bodies of caselaw that deal with 

obscure issues of contractual interpretation.” Id.

LINA did not do so here, which leaves us to decide how 

to construe the word “accident,” an inherently difficult 

concept to fully capture. And because LINA waited until 

this appeal to first argue that Padfield’s definition of the 

word “accident” should not apply, it forfeited that argument. 

The district court therefore correctly applied Padfield when 

it concluded that Scott’s death was not “substantially 
22 WOLF V. LIFE INS. CO. OF NORTH AMERICA

certain” to occur from his conduct, and was thus accidental. 

Accordingly, we AFFIRM the judgment of the district 

court. 

IKUTA, Circuit Judge, concurring: 

I write separately to emphasize that today’s opinion 

applies the definition of “accident” set forth in Padfield v. 

AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2002), only 

because the Life Insurance Company of North America 

(LINA) relied on Padfield and forfeited its argument that the 

insurance policy’s own definition of “accident” applies. 

It has long been established that courts “faced with 

questions of insurance policy interpretation under ERISA” 

must “apply federal common law.” Id. at 1125. And it is a 

bedrock common law rule that “courts should first look to 

explicit language of the agreement to determine, if possible, 

the clear intent of the parties.” Gilliam v. Nevada Power 

Co., 488 F.3d 1189, 1194 (9th Cir. 2007) (cleaned up). This 

is because “ERISA’s primary purpose is to ensure the 

integrity of written, bargained-for benefit plans,” Zurich Am. 

Ins. Co. v. O’Hara, 604 F.3d 1232, 1236 (11th Cir. 2010), 

and “applying federal common law doctrines to alter ERISA 

plans is inappropriate where the terms of an ERISA plan are 

clear and unambiguous,” id. at 1237 n.4. 

Thus, if a policy defines the term “accident,” we must 

apply that definition. See Gilliam, 488 F.3d at 1194. Indeed, 

we have only applied the Padfield definition in cases where 

the relevant policy did not define the term “accident.” See 

Padfield, 290 F.3d at 1124; Williams v. Nat’l Union Fire Ins. 

Co. of Pittsburgh, PA, 792 F.3d 1136, 1138 (9th Cir. 2015). 

And, in cases where the relevant term is defined by the 
WOLF V. LIFE INS. CO. OF NORTH AMERICA 23

policy, we apply only that definition. See Gilliam, 488 F.3d 

at 1195 (“Our task therefore is to determine whether . . . the 

plan’s definition of ‘earnings’ . . . includes [the plaintiff’s] 

severance pay.”).

Here, as the court’s opinion notes, Wolf’s insurance 

policy expressly defines the term “accident” as “[a] sudden, 

unforeseeable, external event that results, directly and 

independently of all other causes.” In the ordinary case, 

then, our inquiry would be whether the death of Wolf’s son 

was “sudden” and “unforeseeable.” See Gilliam, 488 F.3d 

at 1194–95. However, LINA forfeited its argument that the 

policy’s definition of “accident” applies by failing to present

that argument when it denied Wolf’s claim and at the district 

court. Because LINA forfeited that argument, we forego the 

general rule that the express language in the policy applies, 

see Gilliam, 488 F.3d at 1194–95, and rely on the definition 

in Padfield instead.

Indeed, applying the Padfield framework in this case for 

any other reason would be contrary to our precedent. See id. 

Because the court’s opinion is consistent with that precedent, 

I concur.