Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50853

Summary Calendar

TOBI DAVIS,

Plaintiff - Appellant

v.

LIFE INSURANCE COMPANY OF NORTH AMERICA,

Defendant - Appellee

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 6:08-CV-230

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Tobi Davis alleges that the Life Insurance Company of North America

(“LINA”) wrongfully denied benefits under a plan covered by the Employee

Retirement Income Security Act of 1974. See 29 U.S.C. §§ 1001-1461. After the

denial, Ms. Davis sought relief in district court, which granted summary

judgment in favor of LINA. She appeals, claiming wrongful denial of benefits.

Finding no abuse of discretion, we AFFIRM. 

United States Court of Appeals

Fifth Circuit

F I L E D

May 26, 2010

Lyle W. Cayce

Clerk

Case: 09-50853 Document: 00511122444 Page: 1 Date Filed: 05/26/2010
No. 09-50853

2

FACTS AND PROCEDURAL HISTORY

The underlying facts of this case are not in dispute. Tobi Davis’s husband,

Carl Chester Davis, was killed when his motorcycle crashed on October 7, 2006.

At the time of the crash, Mr. Davis was operating the motorcycle with a blood

alcohol level above the state limit of 0.08%. Mr. Davis was driving above the

sixty-miles-per-hour speed limit, and his motorcycle left the road at a curve in

the road. No other vehicles were involved. The cause of death was listed as

“multiple blunt force injuries.” The crash occurred in daylight, with clear or

cloudy weather and a dry road surface. 

The forensic toxicologist hired by LINA determined Mr. Davis’s blood

alcohol content to be between 0.28% and 0.368%. He reported that at this level

of intoxication, Mr. Davis would have a delayed response time and would be

more likely to take greater risks. Further, an individual with that blood alcohol

level would have impaired sensory-motor skills, attention, judgment, and

control, as well as “reduced visual acuity, reduced peripheral vision, increased

reaction time, and disturbances of perception of motion and dimensions.” 

The toxicologist considered lay witness statements that Mr. Davis did not

appear intoxicated, concluding that “regardless of tolerance [to the effects of

alcohol,] at a BAC of 0.28% Mr. Davis would have been impaired to the extent

that it likely was a causative factor in his crash leading to his death.” 

Through his employer, Mr. Davis had group life and accident insurance

with LINA. He had life insurance coverage, as well as three types of accidental

death and dismemberment (“AD&D”) coverage – basic, voluntary, and

supplemental. The basic benefits were paid for by Mr. Davis’s employer as an

employee benefit, and Mr. Davis had opted to pay for the additional voluntary

and supplemental coverage. 

After her husband’s death, Ms. Davis filed a timely claim with LINA for

life insurance benefits and the three types of AD&D benefits. LINA paid

Case: 09-50853 Document: 00511122444 Page: 2 Date Filed: 05/26/2010
No. 09-50853

3

$105,000 in life insurance benefits, but denied all AD&D benefits. The basic

AD&D benefits were denied because the policy contained an explicit exclusion

for intoxication. The voluntary and supplemental benefits were denied because

the death did not meet the definition of a “Covered Loss” under the policy. 

Ms. Davis twice appealed the denial of the voluntary and supplemental

AD&D benefits, and LINA again denied coverage. In each denial, LINA

explained that Mr. Davis’s death did not meet the definition of a “Covered

Accident” under the policy. In one of the three denial letters, LINA also cited the

self-inflicted injury exclusion.

After LINA’s final denial of coverage, Ms. Davis filed suit in the United

States District Court for the Western District of Texas. On August 25, 2009, the

district court granted LINA’s motion for summary judgment. 

DISCUSSION

We review the district court’s grant of summary judgment de novo and

apply the same standards as the district court. Cooper v. Hewlett-Packard Co.,

592 F.3d 645, 651 (5th Cir. 2009). When an insurance plan has granted the

administrator discretionary authority to construe the plan’s terms, the standard

is one of examining for an abuse of discretion. Id. at 651-52. 

The district court identified the two-step inquiry for this review, which

first is to examine whether the plan administrator’s decision was legally correct,

and if it was not, then to evaluate whether the administrator’s discretion was

abused. Stone v. UNOCAL Termination Allowance Plan, 570 F.3d 252, 257 (5th

Cir. 2009). When we may more readily evaluate the exercise of discretion, we

may skip the first step in the analysis. Holland v. Int’l Paper Co. Retirement

Plan, 576 F.3d 240, 246 n.2 (5th Cir. 2009). We take the latter approach.

“Abuse of discretion review is synonymous with arbitrary and capricious

review.” Cooper, 592 F.3d at 652 (citing Meditrust Fin. Servs. Corp. v. Sterling

Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999)). We will affirm the

Case: 09-50853 Document: 00511122444 Page: 3 Date Filed: 05/26/2010
No. 09-50853

4

administrator’s decision if it is supported by “substantial evidence.” Id.

Evidence is considered substantial where it is “more than a scintilla, less than

a preponderance, and is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Ellis v. Liberty Life Assurance Co.

of Boston, 394 F.3d 262, 273 (5th Cir. 2005) (citation omitted). An arbitrary

decision is one “made without a rational connection between the known facts and

the decision.” Meditrust, 168 F.3d at 215 (quotation marks and citation omitted).

“A plan administrator abuses its discretion where the decision is not based on

evidence, even if disputable, that clearly supports the basis for its denial.”

Holland, 576 F.3d at 246 (quotations marks and citations omitted). 

A conflict of interest occurs where, as here, the same entity bears

responsibility for determining eligibility and for paying benefits. Metropolitan

Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S. Ct. 2343, 2349 (2008). That conflict

is weighed as a factor in deciding if the administrator has abused its discretion.

Id. at 2350.

Ms. Davis contends that the administrator’s interpretation of the plan

contradicts its plain meaning and constitutes an abuse of discretion. She cites

Todd v. AIG Life Insurance Company, 47 F.3d 1448 (5th Cir. 1995). Though

Todd involved similar coverage, the relevant terms were different. The court in

Todd interpreted the term “accidental” in an AD&D policy. Id. at 1452. Other

cited AD&D cases also involve different terms. E.g., Wickman v. Nw. Nat’l Ins.

Co., 908 F.2d 1077 (1st Cir. 1990). 

Here, the AD&D policy provided coverage to a “Covered Loss resulting

directly and independently of all other causes from a Covered Accident.” The

policy defines a “Covered Accident” as a “sudden, unforeseeable, external event

that results, directly and independently of all other causes, in a Covered Injury

or Covered Loss . . . .” 

Case: 09-50853 Document: 00511122444 Page: 4 Date Filed: 05/26/2010
No. 09-50853

5

The policy does not define the term “unforeseeable.” We conclude that the

administrator has interpreted “unforeseeable” in a manner consistent with the

term’s plain meaning. See, e.g., Black’s Law Dictionary 649 (8th ed. 2004)

(defining foreseeability as a “quality of being reasonably anticipatable”). Mr.

Davis was driving with a blood alcohol content that was, according to the

toxicologist’s estimates, somewhere between three and a half and four and a half

times the legal limit. Considering the toxicologist’s findings as to the effects of

such severe intoxication, it was reasonable to decide that a foreseeable

consequence of riding a motorcycle in that condition would be a serious accident.

The administrator’s conflict of interest does not alter our conclusion. We

take into account various factors in judging the reasonableness of the decision.

Glenn, 128 S. Ct. at 2351. We find the administrator’s conclusion a reasonable

one for which no evidence or inference exists that it was affected by a conflict.

Because we hold the administrator did not abuse its discretion in denying

coverage because the death was not a “Covered Accident,” we do not address the

applicability of any other policy exclusions.

AFFIRMED.

Case: 09-50853 Document: 00511122444 Page: 5 Date Filed: 05/26/2010