**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 12**  **- 2493** 

SHERRI THOMAS , Plaintiff

- Appell ant ,

v. UNITED OF OMAHA LIFE INSURANCE COMPANY , Defendant

- Appell ee .

Appeal from the United States District Court for the District of Maryland , at Greenbelt

. Peter J. Messitte , Senior D istrict Judge. ( 8:12

- cv - 00973

- PJM )

Submitted : June 7 , 201 3 Decided: July 30, 2013

Before WILKINSON and AGEE , Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by u n published per curiam opinion

.
Gerald I. Holtz, LAW OFFICES OF GERALD I. HOLTZ, LLC, Rockville, Maryland, for Appellant. Jeaneen J. Johnson, Colleen K. O'Brien, SEMMES, BOWEN & SEMMES, Baltimo re, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.- 2

- PER CURIAM: Sherri Thomas ( Plaintiff ) appeals the district court’s grant of summary judgment in favor of United of Omaha Life Insurance Company ( United of Omaha ) with respect to her claim for accidental death benefits under a n insurance policy (the Policy) issued by United of Omaha. We affirm.

I. On February 12, 2010, Plaintiff’s husband , Duane Middleton (Middleton), underwent a partial colonoscopy during which the cecum of his colon was unintentionally perforated, resulting in his death approximately seven hours later

. * Plaintiff , the named beneficiary under the Policy, subsequently filed a claim with United of Omaha for $67,000.00 in accidental d eath benefits under the Policy . The parties do not dispute that the Policy is sub ject to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. Under the section of the Policy entitled “ACCIDENTAL DEATH
AND DISMEMBERMENT BENEFITS,” the Policy provide s that United of Omaha w ill pay the “Loss of Life” benefit if Middleton was “injured as a result of an Accident, and that Injury is

* The colonoscopy was aborted prior to its completion due to suboptimal bowel preparation by Middleton.- 3

- independent of Sickness and all other causes

. . . . ” (J. A . 47). In relevant part, t he Polic y specifically defines the term

“ Accident ” for purposes of this provision as: a sudden, unexpected 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. (J.A. 47). Under the Policy , United of Omaha possesses “the discretion to determine eligibility for benefits and to construe and interpret all terms and provisions of the Policy.” (J.A. 87). Moreover, “[ b ] enefits under the Policy will be paid only if [ United of Omaha ] decide[s], after exercising [its] discr etion, that the Insured Person is entitled to them , ” and “[i]n making any decision, [United of Omaha] may rely on the accuracy and completeness of any information furnished by the Policyholder, an Insured Person or any other third parties.” Id. The adm inistrative record that United of Omaha had before it in making its final decision regarding whether to pay or deny Plaintiff’s claim for accidental death benefits under the Policy, inclu ded, inter alia : (1) the amended death certificate for Plaintiff’s h usband, issued by the State of Maryland; (2) the Post Mortem Examination Report prepared by Assistant Medical Examiner Victor Weedn, M.D., for the Office of the Chief Medical
Exa miner for the State of Maryland; (3) the private autopsy- 4

- report prepared by Al len Burke, M.D.; (4) Middleton’s medical records from the Montgomery Endoscopy Center where he underwent the colonoscopy ; and (5) the professional opinion of United of Omaha’s Medical Director, Thomas Reeder, M.D., regarding the cause of Middleton’s death, following his review of the claim file. The amended death certificate for Middleton listed the manner of death as an accident and the cause of death as acute peritonitis due to (or as a consequence of) perforation of the

ce c um during a colonoscopy, with hepatitis C, cirrhosis of the liver, hypertension, and chronic renal insufficiency as other significant conditions contributing to his death.
In t he Post Mortem Examination Report prepared by Dr. Weedn (Dr. Weedn’s Report) , Dr. Weedn conclu des that Middl eton died of acute peritonitis due to perforation of the cecum during a colonoscopy. He further concludes that hepatitis C, cirrhosis of the liver, hypertension, and chronic renal insufficiency also contributed to Middleton’s death. Of particular relevan ce to the present appeal, Dr. Weedn’s Report states that Middleton, at the time of his death, was on a liver transplant list , and that he underwent the colonoscopy as part of his workup for an anticipated liver transplant due to a family history of colon

c ancer . Dr. Weedn learned this information from his first

- hand review of Middleton’s medical records , including records from:- 5

- (1) Shady Grove Adventist Hospital (emergency services); (2) Dr. Mikhail (primary care physician); (3) Dr. David Doman ( the gastr oenterologist who performed the colonoscopy at issue ); (4) Dr. Mark Sulkowski (infectious disease, internal medicine); and (5) Dr. Alan Kravitz (surgeon)

. According to Dr. Weedn’s Report, “[t]he manner of [Middleton’s] death is ACCIDENT.” (J.A. 134).
In the private autopsy report prepared by Dr. Burke, Dr. Burke lists Middleton’s immediate cause of death as cecal perforation with submucosal hemorrhage and early acute peritonitis. The colonoscopy procedure report prepared by Dr. Doman lists “Screening \ fami ly history colon cancer” as the preoperative diagnosis. (J.A. 114). After reviewing the medical documents in the claim file, Dr. Reeder , United of Omaha’s Medical Director, opined as follows in writing : This seems very straightforward. He underwent screen ing colonoscopy to look for colon pathology in preparation for liver transplantation. Bowel preparation was poor and the cecum was perforated as a result of this medical/surgical procedure. There was no evidence of underlying colon disease prior to the c olonoscopy. The perforation caused peritonitis, and he died of the resulting bacteria sepsis. The perforation did no t aggravate his existing health condition.- 6

- His health condition did not aggravate the effect of the perforated cecum and peritonitis. Colon perforation is a known risk of colonoscopy and wo u ld have been noted in the consent form. (J.A. 93). United of Oma ha denied Plaintiff’s claim for accidental death benefits upon initial consideration of the claim and upon administrative appeal. In i ts final decision letter on administrative appeal, United of Omaha informed Plaintiff as follows regarding its reasoning for denying her claim : Ms. Thomas, we understand that Dr. Weedn indicated that Mr. Middleton’s death was an accident and the death certificate was amen d ed to reflect this. However, perforation is a known risk of a colonoscopy and therefore, the perforation is not an accident as defined under the [P] olicy. Also, Mr. Middleton died of bacterial sepsis. Under the [P] olicy definition o f accident it specifically states accident does not include bacterial or viral infection, regardless of how contracted. In summary, Mr. Middleton’s death was not a sudden, unexpected or unintended event, independent of sickness and all other causes. There fore, we are unable to provide benefits under the Accidental Death and Dismemberment portion of [ the Policy]. (J.A. 102). Plaintiff originally brought this action in state court, but United of Omaha removed it to federal court as an ERISA case. The parti es cross moved for summary judgment. The district court granted summary judgment in favor of United of Omaha . This timely appeal followed.- 7

- II. In an appeal under ERISA, we review the district court’s grant of summary judgment in favor of United of Omah a de novo , applying the same standards governing the district court’s review of United of Omaha’s decision to deny Plaintiff the sought after accidental death benefits under the Policy. Williams v. Metropolitan Life Ins. Co. , 609 F.3d 622, 629 (4th Cir. 2 010). Because the Policy granted United of Omaha , as the plan administrator, “the discretion to determine eligibility for benefits and to construe and interpret all terms and provisions of the Policy,” (J.A. 87), we review United of Omaha’s decision to de ny Plaintiff the sought after accidental death benefits for abuse of discretion. Williams , 609 F.3d at 629. The law in the Fourth Circuit is well

- settled that, “[u] nder the abuse

- of

- discretion standard, we will not disturb a plan administrator’s decision if the decision is reasonable, even if we would have come to a contrary conclusion independently.” Id. at 630. “To be held reasonable, the administrator’s decision must result from a deliberate, principled reasoning process and be supported by substanti al evidence.” Id. (internal quotation marks omitted). In reviewing the reasonableness of the plan administrator’s decision, we consider the following nonexclusive f actors:- 8

- (1) the language of the plan; (2) the purposes and goals of the plan; (3) the adequacy of the materials considered to make the decision and the degree to which they support it; (4) whether the fiduciary ’ s interpretation was consistent with other provisions in the plan and with earlier interpretations of the plan; (5) whether the dec isionmaking process was reasoned and principled; (6) whether the decision was consistent with the procedural and substantive requirements of ERISA; (7) any external standard relevant to the exercise of discretion; and (8) the fiduciary ’ s motives and any co nflict of interest it may have. Booth v. Wal

- Mart Stores, Inc. Assocs. Health & Welfare Plan , 201 F.3d 335, 342

- 43 (4th Cir. 2000). We note that Plaintiff relies upon Ellis v. Metropolitan Life Ins. Co. , 126 F.3d 228 (4th Cir. 1997) for the proposition th at we must review United of Omaha’s interpretation of the term “Accident” in the Po licy under a modified abuse of discretion standard because United of Omaha’s dual roles under the Policy of payor and plan administrator mean that United of Omaha operates u nder a conflict of interest in making benefit decisions

. Plaintiff’s reliance on Ellis is behind the times

-- i ndeed, wrong . In Champion v. Black & Decker (U.S.) Inc. , 550 F.3d 353 (4th Cir. 2008), we held that the Supreme Court’s holding in Metropolitan Life Ins. Co. v. Glenn , 554 U.S. 105 (2008) required us to abandon our modified abuse

- of

- discretion standard in conflict

- of

- interest cases in favor of the normal abuse

- of

- discretion standard. Champion , 550 F.3d at 358

- 59. Following Glenn , a plan administ rator’s conflict of interest- 9

- should be viewed “as but one factor among the many identified in Booth for reviewing the reasonableness of a plan administrator’s discretionary decision.” Williams , 609 F .3d at 631. See also id. at 6 30 (citing Ellis , 126 F.3d at 233, as example of pre

Glenn Fourth Circuit case applying modified abuse

- of

- discretion standard in reviewing benefit decision of plan administrator who operated under a conflict of interest). Our careful review of the briefing, appellate record, and

r elevant case law, including analysis of the Booth factors, compels us to conclude that United of Omaha did not abuse its discretion in denying Plaintiff the sought after accidental death benefits under the Policy for the death of her husband. The crux of the matter is that United of Omaha acted reasonably in concluding that Middleton’s death was not a n “Accident” as that term is defined in the Policy. Critically, the administrative record before United of Omaha contained the Post Mortem Examinati on Repor t of Assistant Medical Examiner Victor Weedn, M.D. for the Office of the Chief Medical Examiner for the State of Maryland, which reported that: (1) in September of 2009, due to the advanced stage of Middleton’s liver disease, “it was decided that he shoul d be referred for liver transplant”; (2) Middleton was subsequently placed on the liver transplant list; and (3) “ [h]is workup for the liver transplant included a colonoscopy due to a family history of colon cancer- 10

- (he had benign polyps in at least two pre vious colonoscopies in 2001 and 2006). ” (J.A. 116). The administrative record also contained the report of Dr. Reeder who, after reviewing the claim file, stated that “[Middleton] underwent screening colonoscopy to look for colon pathology in preparation for liver transplantation.” (J.A. 93). From this evidence, United of Omaha acted reasonably in concluding that Middleton did not die as the result of “a sudden, unexpected and unintended event, independent of Sickness and all other causes.” (J.A. 47). Rather, the evidence supports the reasonable conclusion that he died as the result of medical or surgical treatment for liver disease, which cause of death is excluded from the definition of accident under the plain language of the Policy. See Whetsell v. Mutual Life Ins. Co. of New York , 669 F.2d 955 , 956 (4th Cir. 1982) ( wife not entitled to accidental death benefits as beneficiary of life insurance policy covering husband who died as the result of contracti ng bacterial endocarditis from infected needle used to administer saline solution intravenously while recovering from cataract surgery because policy expressly excluded from coverage “the risk of death caused or contributed to, directly or indirectly, by d isease, by bodily or mental infirmity, or by treatment or operation for disease or bodily or mental infirmity”) (internal quotation marks omitted) (emphasis- 11

- omitted) ; see also id. at 957 (“all deaths caused by medical treatment necessarily involve mistreat ment . . .”). Plaintiff takes issue with this analysis on the ground that the administrative record lack s substantial evidence from which United of Omaha, as the plan administrator, could reasonably conclude that Middleton’s colonoscopy was ordered and pe rformed because of his underlying liver disease. In support , Plaintiff highlights that the administrative record does not contain an actual medical record belonging to Middleton indicat ing that he was on a liver transplant list at the time of his colonosc opy . Plaintiff also contends that the preoperative diagnosis of “Screening \ family history colon cancer” listed on Dr. Doman’s colonoscopy procedure report is at odds with the statements in Dr. Weedn’s Report to the effect that Middleton u nderwent the colo noscopy as part of the workup for a n anticipated liver transplant

. Plaintiff’s position is without merit . Dr. Weedn prepared his report after reviewing first hand Middleton’s medical records from five providers spanning more than forty years. There is n o evidence in the administrative record to suggest that Dr. Weedn, who is a licensed medical professional employed by the State of Maryland, reported Middleton’s medical history inaccurately based upon such review. Moreover, the statements in Dr. Weedn’s R eport to the effect that Middleton underwent the- 12

- colonoscopy as part of the workup for a n anticipated liver transplant are not inco nsistent with the preoperative diagnosis of “Screening \ family history colon cancer” listed on Dr. Doman’s colonoscopy proced ure report. This is because Dr. Weedn’s
R eport took the screening \ family history of colon cancer information into account when he stated that Middleton’s “workup for the liver transplant included a colonoscopy due to a family history of colon cancer (he had benign polyps in at least two previous colonoscopies in 2001 and 2006).” (J.A. 116) (emphasis added)

. In other words, a colonoscopy was indicated prior to Middleton undergoing a liver transplant on account of his family history of colon cancer. In sum, there is no basis upon which to conclude that United of Omaha acted unreasonably in relying upon the portions of Dr. Weedn’s R eport in which he recounts medical information he learned about Middleton by reviewing f irst hand Middleton’s medical records.

III. In conclusion, we hold United of Omaha did not abuse its discretion in denying Plaintiff’s claim for accidental death benefits under the Policy with respect to the death of her husband. Accordingly, the distri ct court did not err in granting summary judgment in favor of United of Omaha. We, therefore, affirm the judgment below.- 13

- We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED