1 The Honorable Dean Whipple, United St ates District Judge for the Western District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1168

___________ Sheila Hamilton, *
* Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Standard Insurance Company, *
* Appellee. *

___________ Submitted: October 19, 2007 Filed: February 27, 2008

___________ Before BYE, BOWMAN, and SMITH, Circuit Judges.

___________ BYE, Circuit Judge. Based upon and relying on a suicide excl usion clause, Standard Insurance Company reduced the amount of death benef its paid to SheilaHamilton under a group insurance policy providing coverage fo r her deceased husband. Hamilton sued Standard in federal district court c ontending a Missouri statute barring suicide defenses for insurance policies issued to citizens of the state of Missouri should apply. The district court 1 concluded the Missouri statute did not apply because the policy was issued to a non-Missouri citizen in Idaho, and granted summary judgment-2- in favor of Standard. Hamilton v. Standard Ins. Co. , 462 F. Supp. 2d 1033, 1036-38 (W.D. Mo. 2006). We affirm.

I

At all relevant times herein, Alberts ons, Inc., provided its eligible employees with life insurance benefits pursuant to an employee benefit plan governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001- 1461. As to benefits under the plan, Albertsons purchased a group life insurance policy from Standard. The front page of th e policy indicates it was issued in Idaho (Albertsons is headquartered in Boise, Id aho) and lists "Albertsons Employees' Health and Welfare Trust" as the policyholder.

Robert Hamilton, Sheila's husband, was an Albertsons employee covered by the plan at the time of his death on August 1, 2004. Sheila was name d as the beneficiary of Robert's benefits. Robe rt had basic "Plan 1" life insurance benefits in an amount equal to twice his annual earnings, or $77,000. Beginning June 1, 2003, Robert elected additional "Plan 2" life insurance benefits in the amount of $20,000. Albertsons paid the premiums for the basi c life insurance benefits, while Robert paid for the optional coverage by having the premiums deducted from his paycheck.

Robert's certificate of death indicates he died as the result of a self-inflicted gunshot wound to the chest. The Standard policy contains a suicide exclusion clause which provides:

If your death results from suicide or other intentionally self-inflicted injury, while sane or insane, 1 and 2 below apply.

1. The Plan 1 Life Insurance Ben efit payable will be limited to 50% of the amount of your Plan 1 Life Insurance.2 The policy's reference to "Prior Plan" re ferred to the fact that Albertsons had used a different insurance company to provide life insurance benefits under its employee benefit plan prior to June 1, 2003. Under the Prior Plan, Robert had coverage for Plan 1 benefits, but did not have any coverage fo r Plan 2 benefits.
-3- 2. The Plan 2 Life Insurance Benefit payable will exclude the amount of your Plan 2 Life Insurance which has not been continuously in effect for at least 2 years on the date of your death. In computing the 2-yearperiod, we will include time you were insured under the Prior Plan. 2
Jt. App. 12-13.

After Robert's death, Sheila filed a claim with Standard for $77,000 in basic Plan 1 benefits, and $20,000 in Plan 2 bene fits. Pursuant to the policy's suicide exclusion clause, Standard paid only $39,000 in basic benefits (half of $77,000 rounded to the next higher multiple of $1,000) and denied the claim for $20,000 in Plan 2 benefits because Robert did not elect that coverage until June 1, 2003, less than two years before his death on August 1, 2004. Standard also refunded the premiums Robert had paid for the Plan 2 benefits between June 2003 and July 2004 (a total of $27.30).

Sheila filed suit against Standard in fede ral district court. Standard moved for summary judgment. Sheila opposed the motion arguing Mo. Rev. Stat. § 376.620 should be incorporated into the terms of Standard's policy and should bar Standard from reducing her benefits under the policy's suicide exclusion clause. At the relevant time, § 376.620 provided:

In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or ju ry trying the cause, that the insured3 Section 376.620 was amended effectiv e August 28, 2007. The statute now provides: 1. Any life insurance or certificate issu ed or delivered in this state, may exclude or restrict liability of death as the result of suicide in the event the insured, while sane or insane, di es as a result of suicide within one year from the date of the issue of the policy or certificate. Any such exclusion or restriction shall be clearly stated in the policy or certificate. 2. Any life insurance policy or certif icate which contains any exclusion or restriction under subsection 1 of this section shall also provide that in the event the insured dies as a result of suicide within one year from the date of issue of the policy that th e insurer shall promptly refund all premiums paid for coverage on such insured.

4 This argument was first raised in a moti on for reconsideration Sheila filed after the district court had already granted Standard's summary judgment motion.
-4- contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.
Mo. Rev. Stat. § 376.620 (2002). 3

Although § 376.620 by its terms only applies to "policies of insurance . . . issued . . . to a citizen of this state" a nd the Standard group policy was issued to a nonMissouri citizen in Idaho, Sheila argued th e statute should still apply because Robert, a Missouri citizen, was issued an individual certificate of insurance. In addition, with respect to the optional Plan 2 benefits, Sh eila argued the period of time Robert had Plan 1 benefits under the Prior Plan should be counted towards, and satisfied, the twoyear vesting period. Fi nally, Sheila belatedly 4argued § 376.620 should apply to the Plan 2 benefits, even if it did not apply to the Plan 1 benefits, b ecause Robert paid the premiums for the optional coverage himsel f, and therefore such coverage should be construed as a separate policy of insurance affected by § 376.620.-5- The district court granted Standard's motion for summary judgment, concluding§ 376.620 did not apply because the policy was a group policy issued to a nonMissouri citizen. The district court further concluded Sheila's claim the statute should apply because Robert Hamilt on was a Missouri citizen, and the holder of a certificate of insurance under the group policy, was foreclosed by our decision in Perkins v. Philadelphia Life Insurance Co. , 755 F.2d 632 (8th Cir. 1985). Finally, the district court held Standard did not abuse the discretion it was affo rded under ERISA when it determined the two-year vesting period had not been satisfied for the Plan 2 benefits, and rejected Sheila's belated clai m the Plan 2 benefits should be construed as a separate policy of insurance to whic h § 376.620 applied. Sheila filed a timely appeal.

II

We review the district court's grant of summary judgment de novo, applying the same standards as the district court. Craig v. Pillsbury Non-Qualified Pension Plan , 458 F.3d 748, 752 (8th Cir. 2006). This case involves the interpretation of a Missouri statute, an issue we review de novo. McIntyre v. Caspari , 35 F.3d 338, 343 (8th Cir. 1994). This case also involves the interpre tation of an insurance policy governed by ERISA. In such a case, the di strict court applies an abuse of discretion standard to the plan's decision if the plan administrator ha s discretion to interpret the terms of the plan, Barham v. Reliance Standard Life Ins. Co. , 441 F.3d 581, 584 (8th Cir. 2006), a de novo standard when the plan does not gr ant its administrator that discretion, id. , and a sliding scale approach somewhere between abuse of di scretion and de novo when the claimant demonstrates a serious procedural irregularity caused a serious breach of the administrator's fiduciary duty. Tillery v. Hoffman Enclosures, Inc. , 280 F.3d 1192, 1197 (8th Cir. 2002). "We have plenary review over the district court's determination of the appropriatestandard of review to appl y to an ERISA plan's denial of benefits." Barham , 441 F.3d at 584 (citing Tillery , 280 F.3d at 1196).-6- On appeal, Sheila contends the district court erred when it determined most of her arguments regarding the proper interpre tation and application of Mo. Rev. Stat. § 376.620 are foreclosed by our decision in Perkins . We disagree. The policy involved here is a group insu rance policy issued to a non-Missouri citizen in Idaho, not an individual policy issued to a Missouri citizen. In Perkins , as in this case, a certificate holder's residency differed from that of the gr oup policy holder; we held it was the group policyholder's residence which determined whether Mo. Rev. Stat. § 376.620 applied, not the residence of th e individual certificate holder. See Perkins , 755 F.2d at 634-35 (indicating § 376.620's "issued. . . to" language refers to the person to whom the policy is sold, which in the case of a group policy is the group policyholder, not the holder of an indivi dual certificate of insurance); see also Miller v. Home Ins. Co. , 605 S.W.2d 778, 780 (Mo. 1980) (applying choice-of-law principles by looking to the state wher e a group policy was issued to the group policyholder, not the state where the holder of an individual certif icate of insurance resided, in order to determine whether § 376.620 applied).

In support of her position, Hamilton relies upon two district court decisions, Nelson v. Aetna Life Insurance Co. , 359 F.Supp. 271 (W.D. Mo. 1973), and Moss v. National Life and Accident Co. , 385 F. Supp. 1291 (W.D. Mo. 1974). Those cases involve the issue whethe r Missouri follows the lex loci delictirule rather than the most-significant-contacts test for choice-of-law purposes. This case does not turn upon choice-of-law principles, however, butrather upon an issue of statutory interpretation, i.e., determining what § 376.620 means when it says it only applies to policies "issued . . . to a citizen of this state." That issue of statutory construction was addressed in Perkins , which controls this case.

Furthermore, with respect to the argument that § 376.620 should apply not only to policies of insurance issued to Missouri c itizens, but also to certificates of insurance issued to Missouri citizens under a group po licy issued to a non-Missouri citizen, we note the amended statute now specifically refe rs to both "life insurance polic[ies]" and5 Because we would find this to be a co rrect interpretation of the suicide exclusion clause even under a de novo standardof review, we dec line to address any of Sheila's arguments relating to her clai m the district court erred in applying an abuse-of-discretion standard, or her clai m she should have been entitled to discovery to uncover procedural irregularitie s or conflicts of interest.
-7- "certificate[s] issued or deliv ered in this state." See Mo. Rev. Stat. § 376.620 (1) & (2) (effective August 28, 2007). Any reference to "certificates" is, however, notably absent from the version of the statute before us, and we are not at liberty to disturb the holding in Perkins . SeeUnited States v. Reynolds , 116 F.3d 328, 329 (8th Cir. 1997) ("One panel may not overrule another.").

With respect to Standard's denial of $20,000 in Plan 2 bene fits, Sheila argues in the alternative that Standard abused its discretion when it determined the suicide exclusion clause's two-year vesting period had not been satisfied. Sheila focuses on the clause's inclusion of "time . . . insure d under the Prior Plan" in computing the twoyear period, and argues her husband's coverage for Plan1 benefits under the Prior Plan satisfied the two-year period, even though he did not elect any amount of Plan 2 benefits until June 1, 2003, less than two years beforehis death on August 1, 2004. Another provision in the clause clearly provi des, however, the Plan 2 benefits payable "will exclude the amount of your Plan 2 Life Insurance which has not been continuously in effect for at least 2 years on the date of your death." Jt. App. 12-13 (emphasis added).

Assuming arguendo Robert satisfied the two-year vesting period due to the time he had Plan 1 benefits under the Prior Plan, the en suing calculation of the amount of Plan 2 benefits payable would still result inno benefits being payable, because any amount of Plan 2 benefits not in effect for at least two year s are excluded. The amount of $20,000 would be excluded because it was not an amount in effect at least two years prior to Robert's death. 5-8- Finally, we reject Sheila's contention that, because Robert himself paid the premiums for the Plan 2 benefits, such c overage should be construed as an entirely separate contract of insuran ce between Robert and Standard, rather than a part of the group policy issued to Albertsons Employ ees' Health and Welfare Trust (with the result being that § 376.620 would apply becausethis separate "po licy" was issued to a Missouri citizen). As the district court noted, Robert's Plan 2 coverage was not a separately issued policy, but "merely a subs et of coverage under the larger plan issued to Albertsons in Idaho." Addendum at 66. As the group policyholder, Albertsons could have unilaterally termin ated the insuring agreement even if Robert had wished to continue coverage for Plan 2 benefits.

III

We affirm the district court.

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