IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11660

ROBERT RAMIREZ, 

 Plaintiff–Appellant, 

v. 

UNITED OF OMAHA LIFE INSURANCE COMPANY, 

 Defendant–Appellee. 

Appeal from the United States District Court

for the Northern District of Texas 

Before SMITH, OWEN, and HIGGINSON, Circuit Judges. 

PRISCILLA R. OWEN, Circuit Judge:

Robert Ramirez traveled to West Texas and contracted a fungal infection 

that ultimately resulted in the removal of one of his eyes. He sought benefits

under an accidental death and dismemberment and life insurance policy

provided by his employer. The insurer, United of Omaha Life Insurance 

Company (United), denied the claim, and Ramirez filed suit. The district court 

granted summary judgment in favor of United, holding that Ramirez’s 

infection was not an “Accident” within the meaning of the policy. Ramirez has 

appealed. We affirm.

I 

We assume that the facts are as Ramirez has presented them. He was

employed by MS International, Inc. and traveled to West Texas twice in 

United States Court of Appeals

Fifth Circuit

FILED

October 6, 2017

Lyle W. Cayce

Clerk

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2 

November 2013. Following these trips, Ramirez developed a fungal infection

in his right eye that was diagnosed as coccidioidomycosis, also known as valley 

fever. Medical providers determined that contact with a West Texas fungus 

called Coccidioides caused the infection. The infection led to progressive loss

of vision in Ramirez’s eye, and physicians ultimately removed that eye in 

October 2014. For purposes of United’s summary judgment motion, the parties 

assume that Ramirez contracted coccidioidomycosis by inhaling fungal spores 

on his West Texas work trips. 

He was covered under an employee benefits insurance plan, which is

subject to the Employee Retirement Income Security Act (ERISA),1 and the 

plan included an “Accidental Death and Dismemberment and Life Insurance 

Policy” (the policy) issued by United. Ramirez submitted a claim for the loss 

of his eye. The policy provides that “[t]he [Accidental Death and 

Dismemberment] Benefit is paid if an employee is injured as a result of an 

Accident, and that Injury is independent of Sickness and all other causes.” The 

policy specifies that it “will not pay for any loss which . . . does not result from 

an Accident.” The policy defines Accident, Injury, and Sickness as follows: 

Accident means a sudden, unexpected, unforeseeable and 

unintended event, independent of Sickness and all other causes. 

Accident does not include Sickness, disease, bodily or mental 

infirmity or medical or surgical treatment thereof, bacterial or 

viral infection, regardless of how contracted. Accident does include 

bacterial infection that is the natural and foreseeable result of an 

accidental external bodily Injury or accidental food poisoning. 

Injury means an accidental bodily injury which requires 

treatment by a Physician. It must result in loss independently of 

Sickness and other causes.

 

 

1 29 U.S.C. § 1001, et seq.

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Sickness means a disease, disorder or condition, which 

requires treatment by a Physician. 

United denied Ramirez’s claim, stating in part that “the loss of sight was 

not due to an Accident as defined by the policy independent of Sickness and all 

other causes.” Ramirez filed an administrative appeal, and United upheld the 

claim denial. Ramirez then filed this suit pursuant to 29 U.S.C. 

§ 1132(a)(1)(B).

II

“Standard summary judgment rules control in ERISA cases.”2 We 

review a grant of summary judgment de novo, applying the same standards as 

the district court.3 Summary judgment is warranted “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.”4 The facts of this case are undisputed, and 

both parties agree that a de novo standard of review applies in this case. 

We note that in suits brought under 29 U.S.C. § 1132(a)(1)(B), district 

courts generally review the denial of disability-benefits claims de novo when 

the administrator or fiduciary does not have discretionary authority to 

determine eligibility for benefits or to construe the terms of the plan.5 But if 

the benefits plan “gives the administrator or fiduciary discretionary authority 

to determine eligibility for benefits or to construe the terms of the plan,” the 

denial of benefits is reviewed for an abuse of discretion.6 The district court was 

 

2 Cooper v. Hewlett-Packard Co., 592 F.3d 645, 651 (5th Cir. 2009) (quoting Vercher v. 

Alexander & Alexander Inc., 379 F.3d 222, 225 (5th Cir. 2004)).

3 Mabry v. Lee Cnty., 849 F.3d 232, 234 (5th Cir. 2017).

4 FED. R. CIV. P. 56(a).

5 See Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 137 (5th Cir. 2016) (first citing 

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); then quoting Holland v. Int'l 

Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir.2009)). But see Ariana M. v. Humana Health 

Plan of Tex., Inc., 854 F.3d 753 (5th Cir. 2017), reh’g en banc granted, 869 F.3d 354 (5th Cir. 

July 10, 2017) (considering the proper standard of review in ERISA cases).

6 Id.

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uncertain of the proper standard of review, twice referencing an arbitrary or 

capricious standard. However, even applying a de novo standard, the district 

court correctly construed the policy as applied to the facts of this case. 

III

The parties’ dispute focuses on whether Ramirez’s fungal infection was 

a “Sickness” and whether the loss of his eye was the result of an “Accident” as 

defined by the policy. Federal common law governs the interpretation of all 

ERISA-regulated plan provisions.7 Under federal common law, courts 

construing ERISA plan provisions “are to give the language of an insurance 

contract its ordinary and generally accepted meaning if such a meaning 

exists.”8 “Only if the plan terms remain ambiguous after applying ordinary 

principles of contract interpretation are [courts] compelled to apply the rule of 

contra proferent[e]m and construe the terms strictly in favor of the insured.”9

The policy uses the term “Sickness” in three provisions pertinent to 

Ramirez’s claim: The policy states that “Accident” does not include “Sickness”; 

requires that an “Accident” be “independent of Sickness”; and requires that an 

“Injury” “result in loss independently of Sickness.” The definition of “Accident” 

further provides that the term does not include “disease, bodily or mental 

infirmity or medical treatment thereof.” 

A 

We conclude that, under ordinary principles of contract interpretation, a 

fungal infection such as coccidioidomycosis falls squarely within the definition 

of “Sickness” and that the loss of an eye as a result of such a fungal infection 

 

7 Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 331 (5th Cir. 2014).

8 Id. (quoting Provident Life & Accident Ins. Co. v. Sharpless, 364 F.3d 634, 641 (5th 

Cir. 2004)).

9 Id. (quoting Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997)).

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is not an “Accident” within the meaning of the policy. The district court did 

not err in concluding that Ramirez was not entitled to benefits. 

 The policy does not define disease, disorder, or condition, so the words 

are given their ordinary meaning.10 Coccidioidomycosis comes within the 

commonly understood meaning of a “disease, disorder or condition, which 

requires treatment by a Physician.” Additionally, sources such as Black’s Law 

Dictionary define disease as “[a] deviation from the healthy and normal

functioning of the body” and “[a]ny disorder; any depraved condition.”11 

The Centers for Disease Control, cited by both parties, supports this 

everyday usage of the policy terminology, describing coccidioidomycosis as a 

“type[] of fungal disease” that can make people “sick.”12 Additionally, both 

parties cite a portion of a report from Dr. Martin Shapiro, a board-certified 

ophthalmologist, stating: “To be perfectly clear, Mr. Ramirez suffered a 

sickness (called Coccidiomycosis or ‘Valley Fever’) that he acquired through 

fungal spore inhalation which eventually disseminated to his right eye.” 

Ramirez relies on this sentence as proof that the infection caused the loss of 

sight and only contests the portion of Dr. Shapiro’s report that states the injury 

was not an “Accident” under the policy. He does not challenge Shapiro’s 

description of the infection as a sickness. Under the ordinary and generally 

accepted meaning of the policy’s language, coccidioidomycosis is a disease 

 

10 Green, 754 F.3d at 332.

11 Disease, BLACK’S LAW DICTIONARY 567 (10th ed. 2014); see also Disease, WEBSTER’S 

THIRD NEW INTERNATIONAL DICTIONARY 648 (2002) (“[A]n impairment of the normal state of 

the living animal or plant body or of any of its components that interrupts or modifies the 

performance of the vital functions, being a response to environmental factors . . . to specific 

infective agents . . . to inherent defects of the organism . . . or to combinations of these factors 

: SICKNESS, ILLNESS”).

12 CTRS. FOR DISEASE CONTROL, VALLEY FEVER AND THE EXPANDING GEOGRAPHIC 

RANGE OF COCCIDIOIDES (2016). 

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within the policy’s definition of “Sickness.” Loss of sight from this fungal 

infection was not “independent of Sickness,” and it is not covered by the policy. 

B 

Ramirez contends that coccidioidomycosis is not a “Sickness.” He asserts 

that coccidioidomycosis is instead an “Accident” independent of “Sickness” and 

that it caused his loss of sight. Ramirez’s arguments are unpersuasive. 

Ramirez asserts that the policy removes only bacterial and viral 

infections from the definition of “Accident” and therefore that “Accident” must 

include other microbial sources of infection, including fungus. Ramirez 

interprets “Accident” as including all infections that cause injury other than 

“bacterial or viral infection.” 

The policy provides that “Accident” “does not include Sickness, disease, 

bodily [] infirmity or medical [] treatment thereof, bacterial or viral infection, 

regardless of how contracted.” Ramirez relies on an implication for his position 

that a fungal infection comes within the term “Accident,” because the definition 

of “Accident” does not expressly mention fungal infection but does expressly 

provide that a bacterial or viral infection cannot constitute an “Accident.” 

However, other terms, such as a “bodily or mental infirmity” and “Sickness,” 

encompass a fungal infection, and therefore, the provision regarding bacterial 

or viral infections cannot be read to remove fungal infections by implication 

from those terms. 

Ramirez asserts that a fungal infection is an “Accident” covered by what 

he describes as the policy’s “carve-back” provision. That provision brings 

within coverage a “bacterial infection that is the natural and foreseeable result 

of an accidental external bodily injury” and “accidental food poisoning,” even 

though they would otherwise be excluded as “Sickness,” “disease,” or “bacterial 

or viral infection[s].” However, neither the policy’s language nor its structure

indicates that this provision applies beyond these two specific occurrences. 

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Ramirez contends that the policy must cover a fungal infection because 

a fungal infection is analogous to food poisoning. Fungal infections, like food 

poisoning, are unpredictable in contraction and effect and require medical care. 

The policy expressly defines an “Accident” as including “accidental food 

poisoning.” However, to construe the accidental death and dismemberment 

policy as Ramirez urges us to do would mean that the flu, strep throat, fungal 

pneumonia, and many other bacterial, viral, and fungal infections would also 

be analogous conditions because they too are unpredictable and require 

medical care. The ordinary meaning of the policy language provides no support 

for including fungal infection in the provision that includes accidental food 

poisoning within the definition of “Accident.” 

Ramirez argues that the definition of “Sickness” must be limited to 

preexisting sicknesses. He asserts that to conclude otherwise means that

virtually all injuries could be considered a “Sickness” if the employee requires 

any treatment from a physician prior to the actual dismemberment. But the 

definitions of “Accident,” “Injury,” and “Sickness,” when considered as a whole, 

make clear that if an employee were to suffer the near loss of a limb, for 

example, and were eventually to lose the limb after prolonged treatment by a 

physician, there would be coverage. The policy’s extension of coverage does not 

turn on whether the death or loss was caused by a condition that arose after 

the inception of the policy. Rather, the nature and cause of the loss determine 

whether there is coverage. 

C 

The contra proferentem rule does not apply because the policy terms are 

unambiguous. Therefore, we need not construe the policy against United. 

If the policy language is ambiguous, then the court should construe the 

policy against the drafter, United, under the rule of contra proferentem. We 

may consider Texas law in this federal-common-law case to determine the 

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applicable federal common law.13 “Whether an insurance contract is 

ambiguous is a question of law for the court to decide by looking at the contract 

as a whole . . . .”14 “A contract is unambiguous if it can be given a definite or 

certain legal meaning.”15 “Ambiguity does not arise because of a ‘simple lack 

of clarity,’ or because the parties proffer different interpretations of the 

contract.”16 But a contract is ambiguous if “it is subject to two or more 

reasonable interpretations after applying the pertinent canons of 

construction.”17 However, the policy language is unambiguous “after applying 

ordinary principles of contract interpretation.”18

D

Ramirez vaguely asserts that the sudden contact with the fungus itself 

is an “Accident” that the policy should cover. Even if we were to agree that the 

acute inhalation of the fungal spores was “a sudden, unexpected, unforeseeable 

and unintended event,” the resulting loss of his eye was not “independent of 

Sickness” as defined in the policy. 

* * * 

For the foregoing reasons, we AFFIRM the judgment of the district court.

 

13 See Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997) (“[W]e may draw 

guidance from analogous state law in ascertaining the applicable federal common law . . . to 

the extent that it is not inconsistent with congressional policy concerns.” (brackets, citations, 

and quotation marks omitted).

14 Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 291 (5th Cir. 2005) (citing Kelley-Coppedge, 

Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998)).

15 McLane Foodservice, Inc. v. Table Rock Rests., LLC, 736 F.3d 375, 378 (citing J.M. 

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)).

16 Id. (quoting DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999)).

17 Id. (citing Webster, 128 S.W. 3d. at 229).

18 Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 331 (5th Cir. 2014) (quoting Wegner 

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

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