UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ RICK CALDWELL; SONYA CALDWELL, Plaintiffs - Appellants,

v. UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant - Appellee. No. 17-8078 (D.C. No. 2:16- CV-00236-SWS) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Plaintiffs appeal the decision of the district court in Caldwell v. UNUM Life Ins.
Co

. of Am. , 271 F. Supp. 3d 1252 (D. Wyo. 2 017), which rejected their cla im under the federal Employee Retirement Inco me Security Act (ERISA), 29 U.S .C. § 1001 et seq., that Defendant had improperly denied benefits for accidental de ath and dismemberment arising from the death of Plain tiffs’ son when he was thrown fr om the vehicle he was driving at 74 mph on an unpav ed road. Defendant relied on an e xclusion in its policy for losses “caused by, contribut ed to by, or resulting from . . . a n attempt to commit or

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 18, 2019
Elisabeth A. Shumaker Clerk of Court2 commission of a crime.” Aplt . App., Vol. 6 at 902–03. We affi rm the district court for essentially the reasons set forth in its opinion. We add only two comments. First, the district court wrote, “The term ‘crime’ is not ambi guous.” 271 F. Supp. 3d at 1261. A little over a year later, however, the Supreme C ourt said, “The word ‘burglary,’ like the word ‘cri me’ itself, is ambiguous.” United States v. Stitt , 139 S. Ct. 399, 405 (2018). We would theref ore be reluctant to rely on th e unambiguity of the term
crime . But the district court did no t so rely. As that court noted , “‘A decision denying benefits based on an interpreta tion of an ERISA provision survi ves arbitrary and capricious review so long as the i nterpretation is reasonable.’ ” 271 F. Supp. 3d at 1263 (quoting Flinders v. Workforce Stabilization Plan of Phillips Petroleum Co. , 491 F.3d 1180, 1193 (10th Cir. 2007), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn , 544 U.S. 105 (2008)). And the di strict court’s ultimate deci sion was that Defendant’s interpretation o f its policy was reasonable. Second, Plaintiffs’ best argument is that Defendant’s claims m anual would treat the speeding in this case as a t raffic violation not encompasse d by the crime exclusion. The manual states that the exclu sion “was not intended to apply to activities which would generally be classified as traffic violations,” although it also says th at driving while intoxicated would “generally” be treated as a crime under the p olicy. Aplt. App., Vol. 12 at 1784 (emphasis added). But we agree with the district court that the policy manual does not purport to be definitive and has substantial play in t he joints. See 271 F. Supp. 3d at 1263–64. At the end of its discussion of the crime excl usion, the manual states in bold type: “Reminder: Each claim is unique and must be evaluat ed on its own merits.3 The actual policy governing the claim must be referenced.” Apl t. App., Vol. 12 at 1784. And this point is emphasized a fe w pages later, where the manua l states that it “is not intended to offer a prescribed an swer to each claim situation. Rather, such answers must be arrived at based on the speci fic and particular facts of the claim. Each claim is unique and must be evaluated on its own merits.” Id. at 1789. In this context it is reasonable to ask whether the decedent’s operati on of his vehicle was more li ke (1) driving while intoxicated, which is apparently considered a species of traffi c violation in Wyoming, see Whitfield v. State , 781 P.2d 913, 915 (Wyo. 1989) (the defendant “had accumulated numerous traffic violations which included eight speeding citat ions and one charge of driving under the influence”), o r (2) failing to signal a lane change. More importantly, however, judicial reliance on a c laims manual in this context i s problematic when there is no evidence that the manual was offered to, or even available t o, an insured or otherwise used in advertising or closing a sale. Cf. Brown v. J.B. Hunt Transp. Servs., Inc. , 586 F.3d 1079, 1088–89 (8th Cir. 2009 ) (plan administrators are not required to disclose claims manuals to plan participan ts under ERISA; “the district court correctly held claims manuals are not the ‘other instr uments’ mentioned in [29 U.S.C. ] § 1024(b)(4)”). If claims manuals are, in essence, t reated as part of the insuranc e contract, they will be4 written with the technical precisi on so beloved by lawyers and defeat the purpose of providing general guidance to cla ims agents. We doubt that the interests of insureds would benefit from that process. Entered for the Court

Harris L Hartz Circuit JudgeNo. 17-8078, Caldwell v. UNUM L ife Insurance Company
PHILLIPS , J., dissenting:
Is speeding a crime? UNUM Life In surance Company of America (Un um) determined that it is—at least within the meaning of William Ca ldwell’s insurance plan, which exempts from accident al-death-and-dismemberment cov erage any “losses caused by, contributed to by, or re sulting from” the actual or attempted “commission of a crime,” Appellants’ App. vol . 6 at 902–03, and at least wh en the speeding happens in Wyoming, where it is w holesale incorporated as a mis demeanor, see Wyo. Stat. Ann. §§ 31-5-301(b), 31-5-1201(a) (West 2018). But R ick and Sonya Caldwell (William’s parents and th e beneficiaries of his insura nce plan) disagree with this view. In this appeal, the Caldwells argue that Unum’s interpretation of the “crime” exclusion—and its resulti ng decision to deny their clai m for accidental-death benefits—runs counter to the Empl oyee Retirement Income Securit y Act of 1974 (ERISA), 29 U.S.C. §§ 1001–1461. William Caldwell’s insurance plan reserves to Unum discretion t o interpret the plan and to determine his eligibi lity for benefit s. Under the S upreme Court’s ERISA jurisprudence, this pr events us from disturbing Unum’s interpre tation of the “crime” exclusion unless that interpretat ion is arbitrary or capricious . Apart from this, we must consider whether disputed policy language is ambiguous, an d, if it is, we must consider extrinsic evidence of t he parties’ intent. Here, I con clude that “crime” is ambiguous, and turn to Unum’s inte nded meaning of “crime” as st ated in its informal2 policy manual. The informal polic y manual says that the crime e xclusion is not intended to apply to offenses gen erally classified as traffic o ffenses. And under Wyoming law, speeding is consider ed a traffic violation. In vie w of this, I would hold that Unum acted arbitrarily and capriciously in unreasonab ly denying accidental-death benefi ts under the crime ex clusion. On that ba sis, I would reverse the district court’s judgment in Unum’s favor.
BACKGROUND In June 2015, William Caldwell, an employee of Sinclair Service s Company, was speeding on Carbon County R oad 605 N toward Rawlins, Wyomin g. He was driving so fast that, as he navig ated an S-shaped bend in the p acked-dirt-and-gravel road, his car began fishtailing , and he lost control. He manage d to straighten the car after the first turn in the S-bend, but not the second. As he o versteered, the car yawed, then skidded off the road and over a ditch at a 45-degre e angle, hitting an embankment. The collision vaulte d the car 30 feet into the air. After landing, the car slid more than 200 feet before coming to rest on its left side. William, who had not been wearing a seatbelt, was ej ected—probably out the driver’s- side window as the car rolled—and he died at the scene. The highway-patrol tr ooper who investigated the accident estimated that Will iam had been traveling 74 miles per hour right before the crash—well over a 35-mile-pe r-hour posted speed limit and e ven the 55-mile-perhour default speed limit for unpaved roads. See Wyo. Stat. Ann. § 31-5-301(b)(iv) (setting the maximum lawful speed “where the roadway is unpaved ” at 55 miles per hour, and mandating that “no pers on shall drive . . . in excess of maximum limits”).3 Acting as his beneficiaries, Wi lliam’s parents submitted accide ntal-death and life-insurance claims to Unum, whi ch administered the ERISA-gov erned groupinsurance plan that Sincla ir provided its employees. 1 Unum granted the Caldwells’ life-insurance claim, paying th em $247,351.90 in benefits. But Unum denied the Caldwells’ accidental-death clai m, citing the accidental-death- and-dismemberment plan’s exclusion for any “accide ntal losses caused by, contribu ted to by, or resulting from[] . . . an attempt to commit or commission of a crime.” Ap pellants’ App. vol. 6 at 902–03. Unum determined that b ecause Wyoming law treats spee ding as a misdemeanor, see Wyo. Stat. Ann. § 31-5-1201(a) , William had co mmitted a crime within the plan’s meaning. And because William’s speeding had c aused his fatal crash, Unum determined that the plan prevented the Caldwells fr om recovering accidental-death benefits. 2

1 The plan declares that Sinclair is “the Plan Administrator and named fiduciary.” Appellants’ App. vol . 6 at 913. But the plan also a uthorizes Sinclair to delegate its fiduciary duties. C onsistent with that delegation (and as elaborated below), the plan reserves to Unum discretionary authority to de termine eligibility for claims and to construe the plan’s terms.

2 In the facts section of their opening brief, the Caldwells con tradict the district court’s and the highway patrol’ s findings to assert that “[t]he re was no speed limit sign posted for the section of r oad where Will died” and that “ he never passed a 35 MPH sign before the accident.” A ppellants’ Opening Br. at 8 n.8 . But earlier, during the district-court proceedings, t he Caldwells submitted a photo graph of a 35-mileper-hour-speed-limit si gn, presumably taken somewhere along Wil liam’s route. Wyoming law allows “local author ities” (such as counties) to “d etermine the proper maximum speed” fo r roads in their jurisdi ction, “which may be g reater or less than the maximum speed” that the law o therwise specifies. Wyo. Stat. Ann. § 31-5-303(b) (West 2018). This means that, if the Caldwells’ photograph is a ccurate—if the Carbon County commissioners poste d a 35-mile-per-hour limit on the dirt road where4 In September 2016, after exhausti ng Unum’s internal appeals pro cess, the Caldwells filed an ERISA action against Unum, alleging that the plan entitled them to accidental-death benefits. See 29 U.S.C. § 1132(a)(3)(B)(ii) (entitling the beneficiaries of an ERISA-govern ed employee-benefit plan to enf orce the plan’s terms in court). Then, in July 2017, Unum and the Caldwells each moved for summa ry judgment. Two months later, the district court issued a written order resolving both their motions. As both sides ag reed, the court noted, the plan gave Unum discretion to interpret its terms, 3 so the deferential, arbitrary- and-capricious standard of revie w

William died—then William was tr aveling 39 miles per hour over the maximum lawful speed. Yet even if the Cal dwells are correct that the co mmissioners never altered Wyoming’s 55-mile-per-h our default unpaved-road speed l imit, William still exceeded that limit by 19 miles per hour. See Wyo. Stat. Ann. § 31-5-301(b)(iv). Whether by 19 or 39 miles pe r hour, William was speeding.

3 In the “Additional Summary Plan Description Information,” the plan states: The Plan, acting through the Plan Administrator [Sinclair], del egates to Unum . . . discretionary authority to make benefit determinatio ns under the Plan. . . . Benefit determin ations include determining eli gibility for benefits and the amount of any be nefits, resolving factual disp utes, and interpreting and enforcing the pr ovisions of the Plan. All bene fit determinations must be reasonable and based on the terms of the Plan and the facts and circumst ances of each claim. Appellants’ App. vol. 6 at 920. The plan’s “Certificate Section ” further states: Benefits under this plan will be paid only if Unum as the claim s administrator (or its designee) d ecides in its discretion that you are entitled to them. Unum also has discretion to determine eligibi lity for benefits and to interpret the te rms and conditions of the benef it plan. This reservation of discretion by Unum does not prohibit or prevent you from5 (sometimes called Firestone deference, after the epon ymous Supreme Court case) applied to Unum’s denial of the C aldwells’ accidental-death cla im. See Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115 (1989) (holding that when an employee-benefit plan gives the p lan administrator “fiduciary d iscretionary authority to determine eligibility for bene fits or to construe the terms of the plan,” ERISA requires judicial deference to t he administrator’s decisions. F rom this, the court framed the question before it as “ whether Unum’s interpretation of ‘crime’ to include speeding for purposes of the Cri me Exclusion was reasonable and made in good faith.” Caldwell v. Unum Life Ins. Co. of Am. , 271 F. Supp. 3d 1252, 1261 (D. Wyo. 2017). The court answered yes—conc luding that Unum’s interpreta tion fell “somewhere on the contin uum of reasonableness.” Id. at 1264 (quoting Joseph F. v. Sinclair Servs. Co. , 158 F. Supp. 3d 1239, 1254 (D . Utah 2016)). It thus upheld Unum’s denial of the Caldwells’ accidental-death claim, granted Unum’s summaryjudgment motion, and denied the C aldwells’ competing motion. Th at same day, the court entered judgment for Unum and dismissed the Caldwells’ ca se. The Caldwells appealed.

seeking judicial review in federal or state court of Unum’s cla ims determinations. Id. at 879.6 DISCUSSION The Caldwells dispute the summar y-judgment ruling by contesting the district court’s conclusion that, consider ing the administrative record and the language of the accidental-death-and-di smemberment plan, Unum ’s interpretation of the “crime” exclusion was reasonable. 4
I. Judicial Review of ERISA Claims First, I describe the two-layere d standard of review governing our analysis: one standard applicable to the di strict court’s summary-judgmen t ruling, another applicable to Unum’s decision to deny the Caldwells’ accidental -death-benefits claim. Next, I apply th at layered standard to determine whether the district court reversibly erred by ruling in Unum’s favor.
A. Standard of Review In an ERISA case, we review the district court’s summary-judgme nt ruling de novo, applying the same standards that a district court would. See LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Di smemberment & Dependent Life Ins. Plan , 605 F.3d 789, 795 (10th Cir. 2010) . In this case, the Caldwells and Unum both moved for summary judgment on th e Caldwells’ ERISA claim, there by stipulating that the Caldwells’ entitlement to benefits depends solely on t he facts in the administrative record and th at no trial is necessary. See id. at 796. Their motions thus

4 We do not address the Caldwe lls’ general challenge to Firestone deference, in which they argue (among other things) that this level of def erence has “eviscerated” ERISA’s purpose a nd its underlying insurance- and trust-law tenets. Appellants’ Reply Br. at 1.7 present this court—as they did th e district court—with “a vehic le for deciding the
case.” Id. (quoting Bard v. Boston Shipping Ass’n , 471 F.3d 229, 235 (1st Cir. 2006)). Next, we must determine (as the d istrict court did) what standa rd of review applies to the case. W ell-settled law instr ucts that our defaul t standard of review is de novo when the beneficiaries of an ERISA-governed employee-benef it plan challenge a denial of benefits but that we must switch to the more defere ntial arbitrary-andcapricious standard if “the benef it plan gives the administrato r or fiduciary discretionary authority to determ ine eligibility for benefits o r to construe the terms of the plan.” Firestone , 489 U.S. at 115. Here, the policy grants Unum “di scretion to determine eligibili ty for benefits and to interpret the terms and conditions of the benefit plan.” Appellants’ App. vol. 6 at 879. This language triggers a rbitrary-and-capricious review, because any reasonable reader would understa nd that Unum had thereby reserv ed discretion over the specific decision at issue he re: whether speeding is a “cri me” subject to the plan’s coverage exclusion. See Cardoza v. United of Omaha Life Ins. Co. , 708 F.3d 1196, 1201 (10th Cir. 2013) ( concluding that both parties agree to ar bitrary-and-capricious review where the policies grant insurance company “discretion a nd final authority to construe and interpret the terms of the policy”); Nance v. Sun Life Assurance Co. of Canada , 294 F.3d 1263, 1266 (10th Cir . 2002) (emphasizing the importa nce of “focus[ing] precisely on what d ecision is at issue, because a p lan may grant the administrator discretion to mak e some decisions but not others” ); see also Caldwell ,8 271 F. Supp. 3d at 1258 (finding that “[t]he parties agree[d]” to this standard). Under the arbitrary-and-capricious sta ndard, we may ask only whether Unum’s interpretation of the plan was “r easonable and ma de in good fai th.” LaAsmar , 605 F.3d at 796 (quoting Kellogg v. Metro. Life Ins. Co. , 549 F.3d 818, 825–26 (10th Cir. 2008)). Factors indicating “a n arbitrary and capricious de nial of benefits include lack of substantial evidence, mis take of law, bad faith, and co nflict of interest by the fiduciary.” Cardoza , 708 F.3d at 1201–02 (quoting Graham v. Hartford Life & Accident Ins. Co. , 589 F.3d 1345, 1357 (10th Cir. 2009)).
Firestone deference applies even when , as here, the same entity ( i.e. , Unum) both pays benefits (as the insur ance company) and decides claim s (as the plan administrator)—in other words, wh en an administrator’s (or empl oyer’s) dual roles create a structural c onflict of interest. See Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 115 (2008). 5 Yet, though a structural evaluat or–payor conflict doesn’t chan ge

5 Many of this court’s pre- Glenn decisions held that by proving that a plan administrator operated under “a n inherent conflict of interest, ” an ERISA plaintiff could shift to the administrator the burden of establishing tha t its denial of benefits was not arbitrary or capricious. E.g. , Fought v. UNUM Life Ins. Co. of Am. , 379 F.3d 997, 1006 (10th Cir. 2 004) (per curiam), abrogated in part as recognized in Holcomb v. Unum Life Ins. Co. of Am. , 578 F.3d 1187, 1192–93 (10th Cir. 2009); Flinders v. Workforce Stabilizati on Plan of Phillips Petroleum Co. , 491 F.3d 1180, 1189–90 (10th Cir. 2007), abrogated in part as recognized in Spradley v. OwensIllinois Hourly Emps. Welfare Benefit Plan , 686 F.3d 1135, 1141 (10th Cir. 2012). But in Glenn , the Court rejected this appro ach, reasoning that it was neith er “necessary” nor “desirable for c ourts to create special burden- of-proof rules, . . . focused narrowly upon the evalu ator/payor conflict.” 554 U.S. a t 116. After Glenn , the burden remains on the plainti ff to prove that the administr ator’s decision was arbitrary or capricious. See, e.g. , Doyle v. Liberty Life Assurance Co. of Boston , 542 F.3d 1352, 1360 (11th Cir. 2008); accord Crowe v Lucent Techs. Inc. Pension9 the applicable standard of review, we still must cons ider it as “one factor among many” in evaluating whether an a dministrator acted arbitrarily or capriciously. Id. at 116. Under this approach, the conf lict’s weight depends on its seriousness—which depends, in turn, on the case’s specifics. Glenn , 554 U.S. at 117; accord Holcomb , 578 F.3d at 1193. If circumstances suggest tha t the conflict “affected the benefits decision,” then the conflict weighs more heavily. Glenn , 554 U.S. at 117. But if the administrator took “active steps to reduce potential bias and t o promote accuracy”— like “walling off claims adminis trators from those interested i n firm finances” or “imposing management checks that penalize inaccu rate decisionma king irrespective of whom the inaccuracy benefits” —then the conf lict “should prov e less important (perhaps to the vanishing point).” Id. Tenth Circuit cases hav e typically described this as a “sliding scale appro ach,” under which we will decreas e our deference to the administrator “in proportion to the seriousness of the conflict .” Weber v. GE Grp. Life Assurance Co. , 541 F.3d 1002, 1010 (10t h Cir. 2008) (quoting Flinders , 491 F.3d at 1190). Here, Unum undoubtedly operated under a structural conflict of interest: paying claims reduces profits. We must weigh that conflict of i nterest in our arbitrary-and-capricious analysi s, “allocating it more or less weight depending on its seriousness.” Murphy v. Deloitte & T ouche Grp. Ins. Plan , 619 F.3d 1151, 1162

Plan , No. Civ-04-1027-M, 2006 WL 2494565, at *2–3 (W.D. Okla. Aug. 25, 2006) (citing Fought , 379 F.3d at 1005–06).10 (10th Cir. 2010) (citing Glenn , 554 U.S. at 115–18). But “[t]he seriousness of a conflict of interest is ‘propor tionate to the likelihood that t he conflict affected the benefits decision.’” Cardoza , 708 F.3d at 1202 (quoting Graham , 589 F.3d at 1358). And here, I agree with the distr ict court’s assessment: Nothing in the administrative record indicates that the struct ural conflict motivated Unum’s decision to deny the Caldwells’ claim for acci dental-death benefits. See Caldwell , 271 F. Supp. 3d at
1259. This is not a case in which, for instance, the insurance compan y administrator “ha[d] a history of biased claims administration.” Glenn , 554 U.S. at 117 (citing John H. Langbein, Trust Law as Regulatory Law: The Unum/Provident Scandal & Judicial Review of Benefit Denials Under ERISA , 101 Nw. U. L. Rev. 1315, 1317–21 (2007)); see also Glenn , 554 U.S. at 123 (Roberts, C.J ., concurring) (giving the example of “a plan that gives ‘a bonus for administrators who d enied benefits to every 10th beneficiary’” (quoting Pegram v. Herdrich , 530 U.S. 211, 227 n.7 (2000))). To the contrary, Unum p roffered evidence of the “acti ve steps” that it took to minimize the structural conf lict’s impact and to promote acc uracy. Caldwell , 271 F. Supp. 3d at 1260. Unum wa lled off claims h andlers from f inance personnel, and it encouraged accurate bene fits determinations by penalizin g claims handlers for both over- and underpayments. Id. at 1260–61. In sum, I give little weight to Unum’s structural conflict of i nterest, and I would not disturb its interpretat ion of the “crime” exclusion s o long as that interpretation was reasonable. See Conkright v. Frommert , 559 U.S. 506, 521 (2010).11 B. William Caldwell’s Claim for Accidental-Death Benefits Because we review de novo the dist rict court’s decision grantin g Unum summary judgment, we accord that court’s analysis no deference, and we address anew whether Unum’s interpretati on of the “crime” exclusion was arbitrary or capricious, or whether its interp retation was reasonable and ma de in good faith. See,

e.g. , LaAsmar , 605 F.3d at 795–96. We interpret ERISA plans as we w ould any other contract: by loo king to the language of the provisi on at issue—here, the “crime” exclusion— and first determining whether, read i n context, it is ambiguous. See Cardoza , 708 F.3d at 1203 (citing Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan , 555 U.S. 285, 299–302 (2009); and Hickman v. GEM Ins. Co. , 299 F.3d 1208, 1212 (10t h Cir. 2002)). In assessing whether a provision is ambiguous, we give words their ordinary and common meaning, asking what a r easonable person in the benefici aries’ position would understand the words to mean. Weber , 541 F.3d at 1011

. A provision is ambiguous if it is “reasonably su sceptible to more than one mea ning” or if its meaning is uncertain. Scruggs v. ExxonM obil Pension Plan , 585 F.3d 1356, 1362 (10th Cir. 2009) (quoting Miller v. Monumental Life Ins. Co. , 502 F.3d 1245, 1250 (10th Cir. 2007)). If a provisi on is unambiguous, then we will construe it as a matter of law—any interpretation that di ffers from its ordinary meanin g is unreasonable and, therefore, arbitrary and capricious. Id. If a provision is ambi guous, though, “then we ‘must take a hard look and determine’ whether [the plan adminis trator’s] decision12 was arbitrary in light of its conflict of interest.” Id . (quoting Weber , 541 F.3d at 1011). 6 Thus, the primary issue here is wh ether the plan’s “crime” excl usion unambiguously includes speeding. T hat exclusion states: “Your p lan does not cover any accidental losses caused by , contributed to by, or resultin g from[] . . . an attempt to commit or commission of a c rime.” Appellants’ App. vol. 6 at 902–03. The plan doesn’t further define “crime.” This provision is ambiguous reg arding whether speeding counts a s the “commission of a crime” because t he word “crime” is susceptible to two reasonable—albeit contradictory— interpretations: one that cover s speeding and one that excepts speeding. See United States v. Stitt , 139 S. Ct. 399, 405 (2018) (noting, in a case concerning the Armed Ca reer Criminal Act, that “the w ord ‘crime’ itself[] is ambiguous”); Am. Family Life Assurance Co. v. Bilyeu , 921 F.2d 87, 89–90 (6th Cir. 1990) (per curiam) (affirming di strict court’s conclusion that “the contractual language regarding commission of a crime” is ambiguous); Stamp v. Metro. Life Ins. , 466 F. Supp. 2d 422, 429 (D. R .I. 2006) (concluding that the te rm “serious crime” as used in an ERISA plan is ambiguo us). On the one hand, as the di strict court observed, Wyoming law labels sp eeding a misdemeanor and defines misdemeanors as

6 The Caldwells assert that we sh ould construe ambiguous terms a gainst the plan’s drafter (that is, again st Unum). But because Unum has di scretion to interpret the plan, and the arbitrary-and- capricious standard applies, “t he doctrine of contra proferentem is inapplicable.” Kimber v. Thiokol Corp. , 196 F.3d 1092, 1100 (10th Cir. 1999); see also Miller , 502 F.3d at 1253.13 crimes. See Wyo. Stat. Ann. §§ 6-10-101 (“Cr imes which may be punished by death or imprisonment for more than one (1) year are felonies. All ot her crimes are misdemeanors.”), 31-5-301(b) & 31-5-1201(a)–(b) (labeling speed ing a misdemeanor punishable by up to six months’ imprisonment); see also Caldwell , 271 F. Supp. 3d at 1262. And speeding fits most di ctionaries’ definitions of “crim e.” See id. Black’s Law Dictionary, for example, defin es a “crime” as “[a]n act tha t the law makes punishable,” Crime , Black’s Law Dictionary (11th ed. 2019), while the MerriamWebster Dictionary defines it as “an illegal act for which some one can be punished by the government,” Crime , Merriam-Webster, www.merriamwebster.com/dictionary/crime ( last visited July 17, 2019). But on the other hand, a reasonabl e reader of the provision mig ht separate traffic violations, including s peeding, which Wyoming locates i n the “Motor Vehicles” title (Title 31) of its code, from more serious offen ses, such as those against people or property, whi ch Wyoming locates in the “Crime s and Offenses” title (Title 6) of its code—and might consider only the latter “crimes” subject to the coverage exclusion. Addressing the ambiguous “crime” exclusion, the Caldwells turn to extrinsic evidence to shed light on Unum’s intent in its crime exclusion. See Miller , 502 F.3d at 1253. And they contend that Unum ’s internal claims manual re quired it to adopt the narrower interpretation of “cr ime,” an interpretation that exempts traffic violations, including speeding. T he Caldwells note that, in gui ding Unum’s own application of coverage exclusi ons for “disabilities/losses ari sing out of criminal14 activity,” the manual (among othe r things) advises the insurer’ s claims handlers to “consider the following”:

 “Attempt to commit” or “commis sion” policy language was intended to exclude disabilities /losses which result from activ ity that would typically be classifi ed as a crime (or felony, depen ding on policy language) under state or federal law.

 “Attempt to commit” or “commission” policy language was not intended to apply to activities which would generally be classi fied as traffic violations

.

 We will generally exclude benefits on claims where a disability/loss results from the claimant’s operating under the influence or driving while intoxi cated since these offenses are typically classified as crimes (o r felonies, depending on the p olicy language). Appellants’ App. vol. 12 at 1783–84 (emphases added). I acknowledge that the “manual is not the Plan and cannot overr ide the Plan terms.” Appellee’s Res ponse Br. at 34 (citing Wade v. Life Ins. Co. of N. Am. , 271 F. Supp. 2d 307, 324 (D. M e. 2003) (“The contested manual i s not part of the [Summary Plan Description] or other Plan documents . . . . Rath er the manual is peripheral to any interpretation of the Plan.”)). And as the pl an itself states: “The summary plan description and th e Summary of Benefits constitute the Plan. Benefit determinations are controlled excl usively by the Summary of Ben efits, your certificate of coverage and the in formation contained in this d ocument [Additional Summary Plan Description Inform ation].” Appellants’ App. vol. 6 at 913; see also id. at 856–78 (“Summary of Benefits ”), 879–912 (“Certificate of Cov erage”), 913–24 (“Additional Summary Plan D escription Information”).15 Even so, we may rely on Unum’s i nformal policy manual for help in determining the partie s’ intended meaning of an ambiguous polic y term—here, “crime.” The internal policy ma nual helps in determining whethe r Unum’s interpretation of “crime” in de nying the Caldwells’ claim is re asonable and made in good faith (or instead arb itrary and capricious). Cf. Fought , 379 F.3d at 1003 (listing conformity with “any external s tandards” as one of several reas onableness indicators (quoting Kathryn J. Kennedy, Judicial Standard of Review in ERISA Benefit Claim
Cases , 50 Am. U. L. Rev. 1083, 1135, 1172 (2001))). Unum’s internal policy ma nual shows that it did not intend “crime” to include traffic violations, except for DUI offenses. And we know that W yoming cases routinely describe speedi ng as a traffic violation. See, e.g., Klomliam v. State , 2014 WY 1, ¶ 21, 315 P.3d 6 65, 670 (Wyo. 2014); Hunnicutt-Carter v. State , 2013 WY 103, ¶ 11, 308 P.3d 8 47, 851 (Wyo. 2013); Formisano v. Gaston , 2011 WY 8, ¶ 22, 246 P.3d 286, 292 (Wyo. 2011). N ow Unum asks us to bless as rea sonable its aboutface in its treating William Cald well’s traffic violation (spee ding) as a crime—and to ignore its expressed written int ent not to do so. We should do neither. Instead, we should credit Unum’s expressed in tent in its internal policy ma nual not to treat a traffic violation (speeding in Wyoming) as a crime. I would hol d that Unum’s denial of the Caldwells’ clai m is unreasonable. See Boyer v. Schneider Elec. Holdings, Inc. Life & Accident Plan , 350 F. Supp. 3d 854, 861–66 (W .D. Mo. 2018) (reaching same result when considering the same Unum crime exclusion in a case where the car16 driver’s death resulted from hi s speeding 80 m.p.h. through a 2 5 or 35 m.p.h. zone, while passing other automob iles in a no-passing zone). 7 For all reasons given, I r espectfully dissent.

7 I note that Unum chose not to appeal this decision.