UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-2493

SHERRI THOMAS,

Plaintiff - Appellant,

v.

UNITED OF OMAHA LIFE INSURANCE COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Peter J. Messitte, Senior District 

Judge. (8:12-cv-00973-PJM)

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

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.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, Baltimore, Maryland, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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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 an 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 death benefits

under the Policy. The parties do not dispute that the Policy is 

subject 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 provides that United of 

Omaha will 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.
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independent of Sickness and all other causes . . . .” (J.A. 

47). In relevant part, the Policy 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] discretion, 

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 administrative 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, included, inter alia: (1) the amended death certificate 

for Plaintiff’s husband, 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 

Examiner for the State of Maryland; (3) the private autopsy 
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report prepared by Allen 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 

cecum during a colonoscopy, with hepatitis C, cirrhosis of the 

liver, hypertension, and chronic renal insufficiency as other 

significant conditions contributing to his death.

In the Post Mortem Examination Report prepared by Dr. Weedn

(Dr. Weedn’s Report), Dr. Weedn concludes that Middleton 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 relevance 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 

cancer. Dr. Weedn learned this information from his first-hand 

review of Middleton’s medical records, including records from: 
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(1) Shady Grove Adventist Hospital (emergency services); (2) Dr. 

Mikhail (primary care physician); (3) Dr. David Doman (the 

gastroenterologist 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\family 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 screening 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 colonoscopy. The perforation 

caused peritonitis, and he died of the resulting 

bacteria sepsis.

The perforation did not aggravate his existing health 

condition.
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His health condition did not aggravate the effect of 

the perforated cecum and peritonitis.

Colon perforation is a known risk of colonoscopy and 

would have been noted in the consent form. 

(J.A. 93). 

United of Omaha denied Plaintiff’s claim for accidental 

death benefits upon initial consideration of the claim and upon 

administrative appeal. In its 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 amended 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 of 

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. Therefore, 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 parties cross moved for summary judgment. The 

district court granted summary judgment in favor of United of 

Omaha. This timely appeal followed.
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II.

In an appeal under ERISA, we review the district court’s 

grant of summary judgment in favor of United of Omaha 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. 2010). 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 deny 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 substantial 

evidence.” Id. (internal quotation marks omitted). In 

reviewing the reasonableness of the plan administrator’s 

decision, we consider the following nonexclusive factors:
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(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 decisionmaking 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 conflict 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 

that we must review United of Omaha’s interpretation of the term 

“Accident” in the Policy 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 under a conflict of interest in making benefit 

decisions. Plaintiff’s reliance on Ellis is behind the times--

indeed, 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 administrator’s conflict of interest 
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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 630 (citing Ellis, 126 F.3d at 233, as example of preGlenn 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 

relevant 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 an “Accident” as 

that term is defined in the Policy. Critically, the 

administrative record before United of Omaha contained the Post 

Mortem Examination Report 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 should 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 
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(he had benign polyps in at least two previous 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 contracting 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 disease, by bodily or mental 

infirmity, or by treatment or operation for disease or bodily or 

mental infirmity”) (internal quotation marks omitted) (emphasis 
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omitted); see also id. at 957 (“all deaths caused by medical 

treatment necessarily involve mistreatment . . .”).

Plaintiff takes issue with this analysis on the ground that 

the administrative record lacks substantial evidence from which 

United of Omaha, as the plan administrator, could reasonably 

conclude that Middleton’s colonoscopy was ordered and performed 

because of his underlying liver disease. In support, Plaintiff 

highlights that the administrative record does not contain an 

actual medical record belonging to Middleton indicating that he 

was on a liver transplant list at the time of his colonoscopy. 

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 underwent the 

colonoscopy as part of the workup for an 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 no 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 Report to the effect that Middleton underwent the 
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colonoscopy as part of the workup for an anticipated liver 

transplant are not inconsistent with the preoperative diagnosis 

of “Screening\family history colon cancer” listed on Dr. Doman’s 

colonoscopy procedure report. This is because Dr. Weedn’s 

Report 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 Report in which he recounts 

medical information he learned about Middleton by reviewing 

first 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 district court did not err in 

granting summary judgment in favor of United of Omaha. We, 

therefore, affirm the judgment below. 
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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