### IN THE UNITED STATES COURT OFAPPEALS FOR THE FIFTH CIRCUIT

No. 11-20451 DEBORAH FIRMAN, Plaintiff - Appellee v. LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM: In this ERISA case, the Life Insurance Company of North America (LINA) appeals the decision of the district court holding that LINA abused its discretion in its denial of benefits to the appellee, Deborah Firman. We have carefully reviewed the district court’s opinion, heard oral arguments, and considered the arguments in the parties’ briefs; and we are convinced that the district court correctly applied the law to the relevant facts and reached the appropriate legal conclusions. We emphasize the district court’s holding that the common law definition of “accident” adopted in Todd v. AIG Life Insurance Co. , 47 F.3d 1448, 1456 (5th Cir. 199 5) , is controlling in all ERISA accidental death and dismemberment plans where the term “accident” is undefined, irrespective of U n ited States C o u rt of Ap pea ls

F ifth C i rcu it 

## F I L E D June15 , 20 12 Lyle W . Cayce Clerk Case: 11-20451 Document: 00511887863 Page: 1 Date Filed: 06/15/2012

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whether the plan administrator is given discretion to interpret the plan. See generally, Stamp v. Metro. Life Ins. Co. , 531 F.3d 84, 89 (1st Cir. 2008) (applying an ERISA common law definition to the term “accident,” when the plan administrator is given discretion to interpret the plan). We therefore adopt the clear and well-reasoned opinion of the district court, a copy of which we attach hereto, as the opinion of this Court. AFFIRMED.

2 Case: 11-20451 Document: 00511887863 Page: 2 Date Filed: 06/15/2012

### No. 11-20451 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION DEBORAH FIRMAN, § § Plaintiff, § § v. § CIVIL ACTION NO. H-09-3785 § BECON CONSTRUCTION COMPANY, § INC., BECON PERSONAL ACCIDENT § INSURANCE PLAN/502, and § 1 LIFE INSURANCE COMPANY OF § NORTH AMERICA, § § Defendants. §

MEMORANDUM AND ORDER

Pending are Defendants’ Motion for Summary Judgment (Document No. 23) and the Cross Motion for Summary Judgment of Plaintiff Deborah Firman (Document No. 53). After having considered the motions, response s , t he applicable law, and the administrative record, the Court concludes as follows. I. Background

Plaintiff originall y named Becon Group Life and Insurance Plans 1 0 5 4 & 0 5 2 , and the correct name is hereby substitut ed. See Footnote 3 below. Case: 11-20451 Document: 00511887863 Page: 3 Date Filed: 06/15/2012

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Plaintiff Deborah Firman claims, pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), that Defenda n t Life Insurance Company of North America (“LINA”) wrongly denied her the 2 benefits of her common-law husband’s ERISA-governed Group Accident Policies. Her husband, Gilberto Espinoza, an employee of Houstonbased Defendant Becon Construction Company, Inc. (“Becon”), participated in two accide ntal death and dismemberment policies under the Becon Personal Accident Insurance Plan/502 (the “Plan”) : 3 Group Accident Policy OK 8 2 6 4 5 5 issued to Becon by LINA and LINA Voluntary Personal Ac c i de nt Insurance Group Policy OK 822833 (together, the “ P o l icies”), both of which named Plaintiff as the 4 beneficiary. Becon was the ERISA P l a n sponsor and administrator 5 under the plan, but designated LINA as the claims administrator, 6 7

LINA is a CIGNA company; hence, s ome portions of the 2 administr ative record refer to LINA as CIGNA, o r containCIGNA headers. See Document No. 23 at8, Document No. 4 8 at 7. Because the parties do not treat CIGNA as separate from LINA, the Court for simplicit y will use only the initials LINA.

Defendant s assert, a n d Plaintiff does not contest, that the 3 defendant Plan was improperl y named in the Complaint as “Becon Group Life I n s u r ance Plan 052” and that Becon Group Life Insurance Plan 054 was named in error. SeeDocumentNo. 23 a t 1.

Document No. 1 at 3 (Orig. Cmplt.); Document No. 23, ex. A at 55, 4 71, 246-2 96 [herei nafter “Admin. Rec ord”].

Admin. Re cord at 1 72-73. 5 Id. at 5 5, 71. 6 Id. at 40 , 68. 7 4 Case: 11-20451 Document: 00511887863 Page: 4 Date Filed: 06/15/2012

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and both policies conferred upon LINA “full discretionary authority to administer and interpret” both policies. 8 Both Policies state that benefits will be paid for “loss from bodily injuries . . . caused by an accident which happens while an insured is covered by this policy.” Neither po l i c y , however, 9 contains a definition of the term “accident.”

A. Insured’s Death Espinoza died in a single-vehicle crash in Kentucky on September 20, 2008. His blood and urine alcohol content were 0.20 percent and 0.35 percent, respectively, at the time of his death, 1 0 and the investigating officer reported a “strong odor of alcohol” and “an open container of cold Budlight Beer inside the vehicle” upon his arrival. According to the officer’s report, Espinoza’s 1 1 truck veered off t h e roadway to the right upon entering a left curve; Espinoza overcorrected, sending the truck over the road onto the left shoulder, where it rolled over. Espinoza was not wearing 1 2

a seat belt, and he was partially ejected out of the passenger-side

Id. at 54, 71. It is uncontest ed that the Pla n ’ s S ummary Plan 8 Descripti on confers discretio n upon LINA. See Document No. 1 at 7 (Orig. Cmplt.); Document No. 23 at4 (LINA) .

Admin. Re cord at 2 42, 279. 9 Id. at 18 1, 222. 10 Id. at 217. 1 1 Id. 12 5 Case: 11-20451 Document: 00511887863 Page: 5 Date Filed: 06/15/2012

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window and crushed b y t h e vehicle. The crash occurred shortly 1 3 after noon in clear weather and dry road conditions. The medical 1 4 examiner who performed Espinoza’s autopsy opined that the cause of death was “[m]ultiple blunt force injuries,” and marked the death

as an “Accident,” which was also reflected on Espinoza’s death 1 5 certificate. 1 6

B. LINA’s Investigation and Denial of Benefits

Plaintiff made a claim for benefits under the Policies, which LINA received on December 4, 2008. It reviewed Plaintiff’s claim, 1 7 Espinoza’s death certificate, the poli ce report, the toxicology report, the medical report, and the Policies, then on December 23, 2008, informed Plaintiff that the claim was not covered because it

wa s n o t an “accident.” LINA interpreted “accident” in the 1 8 Policies to mean “a sudden, unforeseeable event,” and stated that 1 9 Espinoza “would have been aware of the risks involved in operating his vehicle while under the influence” because “every state in the

Id. at 1 15, 217. 1 3 Id. at 2 16. 14 Id. at 2 29. 1 5 Id. at 2 32. 1 6 Id. at 2 30. 1 7 Id. at 20 7-08 1 8 Id. at 20 8. 1 9 6 Case: 11-20451 Document: 00511887863 Page: 6 Date Filed: 06/15/2012

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nation has criminalized drunk driving,” a n d t herefore “[a]ll licensed motorists throughout the United States are on notice, by operation of law, of the state-declared prohibitions against drunk driving and its consequences.” The letter stated that E s pinoza 2 0 had an “alcohol level of 0.35%,” which it asserted was “more than four times the maximum level of alcohol in which it is legal to operate a motor vehicl e i n t h e state of Kentucky.” Because 2 1 Espinoza “would have been aware of the risks involved in operating his vehicle while under the influence, his death was a foreseeable result of his actions and thus not an accident.” 2 2 LINA also relied upon the “self-inflicted injury” exclusion in the Policies as a reason for denial. It noted that, by drinking and driving, Espinoza “placed his life and the lives of others in je op a rdy” because “[i]t is commonly known that driving while intoxicated may result in death or bodily harm, as intoxication can lead to impaired judgment and decreased reflexes.” His death was 2 3

Id. at 20 8-09. 20 Id. at 2 08. The toxicolog y report reviewed at this stage 2 1 apparentl y contained only Espinoza’ s urine alcohol content, 0.35 percent, but not h is blood alcohol content, which was 0.20. See id. at 22 2; cf . id. at 181. LINA therefore erroneous ly compared Espinoza’ s urine alcohol content t o Kentuck y’s blood alcohol limit. Id. at 20 9. 22 Id. 23 7 Case: 11-20451 Document: 00511887863 Page: 7 Date Filed: 06/15/2012

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therefore “a result of intentionally self-inflicted injuries,” and was excluded by the Policies. 2 4 C. Plaintiff’s Appeal

Plaintiff retained counsel and appealed LINA’s decision in January 2009. Her letter of appeal also advised LINA to consider 2 5 it “as notice of her claim to pursue litigation, damages, statutory penalti e s , a nd attorney fees if this claim is not immediately resolve d . ” Her counsel pointed out that LINA’s denial letter 2 6 improperly compared Espinoza’s urine alcohol content to Kentucky’s legal blood alcohol limit for driving under the influence, and 2 7 subsequently submitted additional information consisting of affidavits of the investigating officer and medical examiner. 2 8 The investigating officer asserted that he believed the curve on the road was dangerous for someone not familiar with the area, noting that he had investigated numerous accidents at the si t e . 2 9 He further stated that, based on his investigation, there was no evidence that Espinoza intentionally caused the accident, knew it

Id. 24 Id. at 1 60. 25 Id. at 1 61. 26 Id. 2 7 Id. at 11 2-115, 12 2-23. 28 Id. at 1 14-115. 29 8 Case: 11-20451 Document: 00511887863 Page: 8 Date Filed: 06/15/2012

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would occur, or reasonably could have anticipated his death. The 3 0 medical examiner similarly found no evidence that Espinoza intended his death, nor that he reasonably could have ant i c ipated it, because “‘driving under the influence’ does not naturally and probably lead to the type of injuries” that resulted in his death. 3 1 Plaintiff’ s c ounsel also submitted Texas and Kentucky state

case law interpreting ac c i dental death insurance policies in the context of alcohol-related automobile crashes, concluding that under the law of either state, Espinoza’s crash would be considered an “accident” under the Policies. 3 2 In response to these submissions, LINA informed Plaintiff that it was conducting a “home office review,” which was “needed in order to interpret the documents we have received as they relate to the provision of this policy.” The claims administrator assigned 3 3 to the appeal forwarded Plaintiff’s contentions to LINA’s in-house counsel, who responded with a five-page memo labeled “ PRIVILEGED

3 4 & CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION .” The memo opi n e d 3 5 that Plaintiff’s relied-upon state law would be inapplicable to the

Id. at 11 5. 30 Id. at 1 22. 3 1 Id. at 10 3-06. 32 Id. at 10 1. 33 Id. at 75 -76. 34 Id. at 30 0 (emphas is in ori ginal). 35 9 Case: 11-20451 Document: 00511887863 Page: 9 Date Filed: 06/15/2012

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interpretation of an ERISA policy governed exclusively by federal law: “The standard that claimant advances - one of natural and probable consequences - is n o t the standard utilized by federal courts applying the c ommo n law of ERISA.” It then noted the 3 6 absence of Fifth Circuit authority regarding “wh e t h er an ERISA in s u r e d ’s death that occurs while driving when intoxicated is an accident in the context of [an] accidental death benefit plan,” and looked to decisions by the Fourth, Sixth, and Seventh C i r c uit Courts of Appeal as authority that, if LINA had discretion to make determinations under the Plan, it would not abuse that discretion by concluding that Espinoza’s death was not an “accident” because “a reasonable person would foresee the likelihood of de a t h o r serious injury as a result o f dr i v i ng while intoxicated.” The 3 7

memo also stated that t h e officer’s and medical examiner’s affidavits were not persuasive, because they were based not “on the facts of the incident, but on their personal view of whether it was natural and probable that Mr. Espinoza could not rea s o n ab ly have foreseen his death.” 3 8 LINA issued a letter to Plaintiff denying her appeal because:

Id. at 30 2. 36 Id. at 302-04 (citing and discussin g Lennon v. Metro. Life Ins. 37 Co., 504 F.3d 617 (6th Cir. 2007); Eckelberr y v. ReliaStar Life Ins. Co., 469 F.3d 340 (4th Cir. 2006); Cozz i e v . Me t r o. Life Ins. Co., 140 F.3d 1104 (7thCir. 199 8)).

Admin. Re cord at 3 02. 38 10 Case: 11-20451 Document: 00511887863 Page: 10 Date Filed: 06/15/2012

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Injury or death resulting from driving under the influence of alcohol is considered foreseeable and is not covered by the provisions of [the Policies]. Driving wh e n intoxicated precludes a finding that a death is Accidental. As mentioned previously, the policy definition of a Covered Accident requires that a loss not be foreseeable. 3 9

In the letter, LINA again erroneously stated that Espinoza’s “blood alcohol concentration was 0.35%,” which it again asserted was “more than four times the threshold for presumed intoxication while driving in the state o f Ke n t u cky.” Finally, the letter advised 4 0 Plaintiff that she had exhausted all levels of administrative appeal. 4 1 Pending are cross-motions for summary judgment. Plaintiff asserts that LINA abused its d i s c retion in denying her benefits, and further asserts that its denial was procedurally improper due to LINA’s failure to disclose its in-house counsel’s memo sooner. Defendants seek dismissal of all claims. II. Legal Standards

A. Summary Judgment Standard

Id. at 9 8. 39 Id. 40 Id. at 9 9. 4 1 11 Case: 11-20451 Document: 00511887863 Page: 11 Date Filed: 06/15/2012

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Rule 56(c) provides that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and th a t the movant is entitled to judgment as a matter of law.” FE D . R. C IV . P. 56(c). T h e mo v i n g party must 4 2 “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986). Once the movant carries this burden, the burden shifts to the nonmovant to show that summary judgment should not be granted. Morris v. Cova n Wo r l d Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in

a pleading, and unsubstantiated assertions that a fact issue exists

w i l l not suffice. Id. “[T]he nonmoving party must set f o r t h specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case.” Id. In considering a motion for summary judgment, the district court must view the evidence “through the prism of the substantive evidentiary burden.” Anderson v. Liberty Lobby, Inc., 106 S. Ct.

Rule 56 was amended effective December 1, 2010 to sta t e , i n 42 relevant part, that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant i s entitled to judgment as a matter of law.” FE D . R. C IV . P. 56(c) (effective Dec. 1, 2010). While Defendant s’ motion was filed prior to the effective date of the new Rule 56, Plaintiff fi l e d her motion after the amendment s. Nonethele ss, the amendment s are meant only to “make the procedure s more consisten t with those already used in many c o u r t s,” and “[t]he standard for granting summary judgment remains unchanged .” Id., cmt. 2010 Amendmen ts. 12 Case: 11-20451 Document: 00511887863 Page: 12 Date Filed: 06/15/2012

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2505, 2513 (1986). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Ma t s u s h ita Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986). “If the record, viewed in this light, could not lead a rational trier of fact to find” forthe nonmovant, then summary judgment is proper. Kelley v. PriceMacemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993). On the other hand, if “the factfinder could reasonably find in [the nonmovant’s] favor, then summary judgment is improper.” Id. Even if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that “the better course would be to proceed to a full trial.” Anderson, 106 S. Ct. at 2513.

B. ERISA Standard of Review

ERISA confers jurisdiction on federal courts to review benefit determinations by fiduciaries or plan administrators. See 29 U.S.C. § 1132(a)(1)(B). A plan claims administrator makes two general decision s when deciding whether to pay benefits: (1) finding the facts underlying the claim and (2) determining “whether those facts constitute a claim to be honored under the terms of the plan.” Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 394 (5th Cir. 1998) (quoting Pierre v. Co n n . Gen. Life Ins. Co./Life Ins. Co. of N. Am., 932 F.2d 1552, 1557 (5th Cir. 1991)) (emphasis in original). T h e administrator’s first decision, its

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fact finding, is always reviewed for abuse of discretion. Wade v. Hewlett-Packard Dev. Co. LP Short Term Dis ab i l i ty Plan, 493 F.3d 533, 537 (5th Cir. 2007). The second determination, the administrator’s interpretation of the plan, is typically reviewed de novo , “[b]ut where, as here, a plan expressly confers discretion

on the plan administrator to construe the plan’s terms, the administrator’s construction is reviewed for abuse of discretion.” Id. at 537-38 (internal footnote omitted); see also Firestone Tire & Rubber Co. v. Bruch, 109 S. Ct. 948, 956-57 (1989). Because the parties agree that the Plan’s Summary P l a n Description conferred discretionary authority upon LINA, both of its determinations are 4 3 appropriately reviewed for an abuse of discretion. When reviewing the administrator’s second decision-- interpretation and application of the plan language--for an abuse of discretion, the Fifth Circuit applies a two-step inquiry. Stone v. UNOCAL Termination Allowance Plan, 570 F.3d 252, 257 (5th Cir. 2009). Fir s t , the court examines whether the determination was legally correct; if so, there can be no abuse of discretion. Id. If not legally cor r e c t, then the court proceeds to step two to decide whether the determination was an abuse of discretion. Id. An abuse of discretion occurs when “the decision is not based

on evidence, even if disputable, that clearly s upp o rts the basis for its denial.” Holland v. Int’l Paper Co. Retirement Plan, 576

See supran.7. 43 14 Case: 11-20451 Document: 00511887863 Page: 14 Date Filed: 06/15/2012

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F.3d 240, 246 (5th Cir. 2009) (internal quotation marks and citation omitted). Such an abuse occurs “only where the plan administrator acted arbitrarily or capriciously,” and a decision is arbitrary when it is ma de “ without a rational connection between the known facts and the decision or between the found facts and the evidence.” Id. (citing Meditrust Fin. S e rvs. Corp. v. Sterling Chems., Inc., 168 F.3d 2 1 1 , 214-15 (5th Cir. 1999)) (internal quotation marks omitted). The decision need only “fall somewhere on a continuum of reasonableness--even if on the low end.” Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007) (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 297 (5th Cir. 1999) (en banc), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008)). “Although we generally decide abuse of discretion based upon the information known to the a dm i n istrator at the time he made the decision, the administrator can abuse his discretion if he fails to obtain the necessary information.” Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1015 (5th Cir. 1992). In this case LINA operates under a conflict of interest; it is uncontested both that LINA has discretio n a r y authority to make claims decisions and that it is responsibl e for paying benefits under the Plan. See Glenn, 128 S. Ct. at 2348 (2008). Although 4 4 the presence of a conflict is not determinative, and does not

SeeDocumentNo. 48 a t 5. 44 15 Case: 11-20451 Document: 00511887863 Page: 15 Date Filed: 06/15/2012

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permit converting the “abuse of discretion” review into a more onerous standard of review, it is properly considered as a factor in the overall analysis of LINA’s denial of benefits. SeeGlenn, 128 S. Ct. at 2350-52 (2008); Holland, 576 F.3d at 247-48 n.3. 4 5

III. Discussion For support of LINA’s denial of benefits, Defendants rely on Sanchez v. Life Insurance Co. of North America and D av i s v. Life Insurance Co. of North America, two unpublished Fifth Circuit decisions upholding LINA’s denia l o f benefits where the insureds died in single-car crashes when driving while intoxicated. Sanchez, 393 F. App’x 229 (5th Cir. 2010) (unpublished op.); Davis, 379 F. App’x 393 (5th Cir. 2010) (unpublished op.). In both of those cases, however, LINA’s policies each defined “acci de n t” as “[a] sudden, unforeseeable, external event.” Sanchez, 393 F. App’x at 233; Davis, 379 F. App’x at 395-96. In sharp contrast to those cases, neither of the Policies nor the Plan in this case contains either that definition or any other definition of “accident.” Thus, this case requires consideration of a similar but distinctly different question, namely, whether LINA abused its discretion in determining that Espinoza’s death was not a n “accident” under a

Plaintiff points to eight other cases where LINA h a s de n ied 45 benefits, and asserts that it has obtained a potential gain of $2,867,00 0 f rom those denials and the denial presently at issue. Plaint i f f , however, fails t o p oint to any evidence that LINA’s conflicts in the prior cas es influe nced LINA ’s benefi t decisio ns. 16 Case: 11-20451 Document: 00511887863 Page: 16 Date Filed: 06/15/2012

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policy written by LINA without inclusion of any definition of the term “accident.” While neither Accident Policy defines “accident,” the Policies do exclude coverage fo r i n j uries from certain activities. These include:

• Intentionally self-inflicted injuries

• Travel or flight if the insured is a pilot or crew member

• Hang-gliding

• Parachuting (except for self-preservation), and

• Commission of a felony by the insured. 4 6

Neither Policy excludes coverage for injury when driving an automobile while intoxicated. 4 7 LINA in its claim administration used essentially the same definition for “accident” that i s w r itten into some of its accidental death policies--such as those in Sanchez and Davis--but which is not found in E s p inoza’s Policies, namely “a sudden,

Admin. Record at 244, 281. 46 The Sixt h Circuitin a case similar to this stated the obvious: 47 The solution for insurance c ompanies . . . is simple: add an express exclusion in policies covering accidenta l inj u r i es for driving while under the influence of alco hol, or for any other risky activity that the company wishes to exclude. Policyhol ders would thus be able to form reasonabl e expectati ons about what type of coverage they are purchasin g without having t o ma ke sense of conflicti ng bodies of caselaw that dea l w i th obscure i ssues of contractu al interp retation. Kovach v. Zurich American I ns. Co., 587 F.3d 323, 338 (6th Cir. 2009). 17 Case: 11-20451 Document: 00511887863 Page: 17 Date Filed: 06/15/2012

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unforeseeable event.” Because Espinoza “would have been aware of 4 8 the risks involved in operating his vehicle while under the influence, his death was a foreseeable result of his actions and thus not an accident.” L I NA denied Plaintiff’s appeal for the 4 9

s ame reason, and further because “[d]riving when intoxic a t e d precludes a finding that a death is Accidental.” In making that 5 0 decision, LINA gave a legally incorrect definition to the term “accident” and, moreover, abused its discretion by applying a per

se rule that death resulting from driving while intoxicated is

never an accident, despite the absence of a policy exclusion so stating.

A. Legally Incorrect Interpretation Three factors bear upon whether an interpretation is legally correct: “(1) whether the administrator has give n the plan a uniform construction, (2) whether the interpretation is consistent

w i t h a fair reading of the plan, and (3) any unanticipated costs resulting from different interpretations of the plan.” Stone, 570 F.3d at 258 (quoting Crowell v. Shell Oil Co., 541 F.3d 295, 312

Admin. Record at 208. 48 Id. at 2 09. 49 Id. at 9 8. 50 18 Case: 11-20451 Document: 00511887863 Page: 18 Date Filed: 06/15/2012

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( 5 t h C ir. 2008)). The “most important” of these factors “ i s 5 1 whether the administrator’s interpretation wa s consistent with a fair reading of the plan.” Id. (citing Crowell, 541 F.3d at 313). Although LINA has consistently interpreted its accident policies--whether or not they define “accide n t ” --to exclude from coverage drunk driving deaths, its consistency does not save its 5 2 i n t e rp r e t a tion in this case because it is not a fair reading of Espinoza’s Policies in which “accident” is not a defined term. LINA ’ s i n terpretation of the term “accident,” in fact, is wholly inconsistent with the definition given that term by federal common law in the Fifth Circuit. Writing for the Fifth Circuit in Todd v. AIG Life Insurance Co., Justice Byron White held that it was appropriate for the district court to conclude that: [F]or death under an accidental death policy to be deemed an accident, it must be determined (1) that the deceased had a subjective expectation of survival, and (2) that such expectation was objectively reasonable, which it is if death is not substantially certain to result from the insured’s conduct.

As neither party presents substanti ve argume n t on the third 5 1 factor, i t will no t be addr essed. Seeid. at 2 58 n.4.

See, e . g . , S a nchez, 393 F. App’x at 230-31; Davis, 379 F. App’x 52 at 394-95; Moore v. Life Ins. Co. of N. Am., 708 F. Supp. 2d 597, 609-10 (N.D.W. Va. 2010); Danouvong ex rel. Estate of Danouvong v. Life Ins. Co. of N. Am., 659 F. Supp. 2d 318, 324-25 ( D . C o n n . 2 009); McGillivr ay v. Life Ins. Co. of N . Am., 51 9 F. Supp . 2d 157, 162-63 ( D. Mass. 2007). 19 Case: 11-20451 Document: 00511887863 Page: 19 Date Filed: 06/15/2012

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47 F.3d 1448, 1456 (5th Cir. 1995). The Fifth Circuit has also phrased the test in an alternative manner: “ wh e ther a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured ’ s intentional conduct.” Schadler v. Anthem Life Ins. Co. 147 F.3d 388, 397 n.10 (5th Cir. 1998) (quoting Wickman v. Nw. Nat’l Ins. Co., 908 F.2d 1077, 1088 (1st Cir. 1990)). Both

cases demonstrate the Fifth Circuit’s acceptance of the Wickman standard, as Judge Sarah Vance observed in her analysis of the circuit’s precedents in Carter v. Sun Life Assur. Co., No. 05-2214, 2006 WL 1328821, at *6, *5-6 (E.D. La. May 11, 2006) (“[W]hile the F i f th Circuit has never squarely applied all three Wickman determinations to the same case, the Wickman approach is followed in this circuit and is the standard by which an administrator’s determination is to be measured.”). The Wickman analysis requires that for a death to be considered “accidental,” the insured must have had the subjective expectation of surv i val, and that expectation must have been objectively reasonable “from the perspective of the i n s u r ed, allowing the insured a great deal of latitude and taking into account the insured’s personal characteristics and experiences.” 908 F.2d at 1088. In the more typical case where there is insufficient evidence of the i n sured’s actual expectations, a purely objective analysis is undertaken as “a good proxy for actual

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expectation”: the death is not an accident if “a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured’s intentional conduct.” Id. LINA’s interpretation eschews the Wickman approach to defining accident, and is therefore legally incorrect. In Wickman, the starting point was the actual expectation of the insured, limited only by excluding “patentl y unreasonable” expectations from the definition of “accident,” which equates to situations where death or serious injury is “highly likely.” This compares favorably to the dictionary def i n ition of “accident”: “an unforeseen and

u np lanned event or circumstance,” or “lack of intention or necessity.” WEB S TER ’ S N I NTH NEW C OLLE G IATE D I C T I ONARY at 49 ( 1 9 9 0). LI NA ’s interpretation, on the other hand, does not focus the inquiry on what is actually expected or foreseen by the insured, tempered only by patently unreasonable expectations, but rather, on what is foresee able --that is, capable of being foreseen. Further, it does not ground this interpretation in the alternative objective

a n a lysis of Wickman, asking from the perspective of the insured whether death or serious injury is “highly likely” to occur, not merely asking whether death or serious injury is “foreseeable.” In short, LINA’s interpretation of “accident” excludes from its bounds not just the “patently unreasonable” expectation, Wickman, 908 F.2d at 1087, but anything that is merely “foreseeable.” This goes well

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beyond the limited e x c eption to an insured’s actual expectations (or a “proxy” thereof) established by Wickman and followed by the Fifth Circuit in Todd and Schadler. Indeed, t h e r e i s much 5 3 persuasive authority pointing to a variety of exampl e s that are commonly considered “accidents” but which wo u l d be excluded from

See Todd, 47 F.3d at 1 4 5 6 ( n o t ing the inapplicability of cases 53 cited by the plan administr a tor to support its interpret ation of “accident ,” because “[u]nder those cases, however, it need be only foreseeab le that death ‘could’ result, not t hat death was ‘highly likely.’” ); see also LaAsmar v. Phelps Dodge Corp. Life, Accidenta l Death & Dismemberment and Dependent Lif e I n s . Plan, 605 F.3d 789, 809 (10th Cir. 2010) (under de novo review, rejecting the plan a dm i n istrator’ s proposed interpret ation of “accident ” as excluding a “reasonab ly foreseeab le” injury because, in part, Wickman “did not apply a reasonabl e foreseeab ility test, but instead asked whether the injuries or loss at issue was ‘highly likely to occur’”); Kovach v. Zurich Am. Ins. Co., 587 F.3d 323, 336-37 (6th Cir. 2009) (noting “the varying interpret ations of the word ‘accident al’” adopted by district courts in the Sixth Circuit alternate ly referenci ng the “reasonab ly foreseeab le” and “highly likely” standards , and adopting the “ke y h o lding” in Wickman-- requiring an inquiry into “whether a reasonabl e person, with backgroun d and character istics similar to the insured, would have viewed the in jury as highly likely to occur as a result of the insured’s intention al conduct” to determine whether or not th e i n j ury was an “accident ”); King v. Hartford Life and Accident Ins. Co., 414 F . 3 d 9 94, 1002, 1003-04 (8th Cir. 2005) (en banc) (remandin g b e n efits decision to administr ator because the “reasonab ly foreseeab le” standard appli e d i n its denial letter was not the same as the Wickman standard that it “consis t e n t l y

. . . maintaine d in litigatio n” was the proper way to int e rp r e t “accident ”); see also Loberg v. Cigna Group Ins., No. 8:09CV280 , 2011 WL 612059, at *6 (D. Neb. Feb. 10, 2011) (noting that King “makes clear that a distincti on between the two standards (at least in the Eighth Circuit) exists”); Mc G i llivray, 519 F. Supp. 2d at 165 (same); Carter, 2006 WL 1328821, at *6 (finding “unreason able a n d l e gally incorrect ” the plan administr ator’s interpret ation of “accident ” to exclude coverage when injury or death is “reasonab ly foreseeab le and . . . t he natural and probable result” of the insured’s conduct, because the differenc e between that stan dard and Wickman “ is materi al”). 22 Case: 11-20451 Document: 00511887863 Page: 22 Date Filed: 06/15/2012

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being so regarded if events that are mer e l y “foreseeable” or “reasonably foreseeable” were not considered “accidents.” 5 4 Furthermore, LINA’s interpretation runs contrary to the provisions of the Policie s , which specifically pay an additional 10 percent of the insured’s benefits if he or she “dies as a result of an automobile accident while wearing a properly fastened, original, factory-installed seatbelt.” It is certainly 5 5 “foreseeable” that one not wearing a seatbelt--suc h as Espinoza--may die in a car crash, which, by LINA’s definition, would by itself render that person’s death not an “accident.” Yet, the Policies specifically provide for additional coverage f o r an insured who dies while wearing a seatbelt, implying that one who does not wear a seatbelt is covered at the basic amount. See LaAsmar, 605 F.3d at 807 (“To some degree, the language of the Plan at issue here providing for the possibility of additional benefits if the insured chose to wear a seat belt suggests that an insured’s

Se e , e . g . , Kovach, 587 F.3d at 335-36 (crash resulting from 54 driving while text messaging or driving while fatigued) ; Lennon v. Metro. Life Ins. Co., 504 F.3d 617, 630 (6th Cir. 2007) (Clay, J ., dissen ting) (crash after driving “another hour” on a cross-cou ntry trip “after an 18 hour day behind the wheel,” or while driv i n g 8 9 miles per hour in a 70 mph zone, or death or serious injury when bungee jumping); King, 414 F.3d at 1008 (Bright, J., concurrin g) (falling after standing on a shaky stool to reach something on a high shelf, electrocu tion of a lin ema n working atop an electrici ty pole, a car crash resulting from speeding o n e ’ s pregnant wife to t he hospit al); Sanc hez v. Life Ins. Co. of N. Am., 704 F. Supp. 2d 587, 596 n.18 (W.D. Tex. 2009) (injuries result i n g f rom standing o n a ladder, driving an automobil e, playing basketbal l); Danouvong , 659 F. Supp. 2d at 328 & n.6 (cras h when dr iving a c ar).

Admin. Record at 37, 66. 55 23 Case: 11-20451 Document: 00511887863 Page: 23 Date Filed: 06/15/2012

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failure to take precautions against obvious dangers would not preclude AD & D benefits under this policy.”). In sum, LINA made a legally incorrect determin a t ion of the undefined term “accident” as it is used in the Accident Policies and Plan that covered Espinoza.

B. Abuse of Discretion

LINA also abused its discretion in denying benefits under the Accident Policies without sufficient evidence in the administrative record to support its determination and by its application of what effectively is a per se rule that drunk driving deaths can never be an “accident” under a policy that contains no exclusion for drunk driving. Unlike the instant case, Sanchez and Davis involved evidence supporting LINA’s decision in addition to the insured’s blood alcohol content. In Davis, the administrative record contained a toxicologist’s findings; t h e Fifth Circuit therefore held that LINA’s determination was reasonable “[c]onsidering the toxicologist ’ s findings as to the effects of such severe intoxication.” Davis, 379 F. App’x at 396. Similarly, in Sanchez, the administrative recor d c ontained eyewitness accounts that the insured’s vehicle “swerved sharply in th e r oad” before rolling over; a forensic con s u ltant’s opinion that a person with the insured’s blood alcohol content would h ave “‘poor judgment,

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i n c reased reaction time, muscle incoordination, loss of visu a l acuity, [ ] increased risk taking’ and be unable to drive safely”; and the consultant’s citation to “volumes of references regarding the e f f ects of alcohol producing impairment regardless of tolerance.” Sanchez, 393 F. App’x at 233. 5 6 Here, on the other hand, the administrative record is entirely devoid of any evidence--other than Espinoza’s blood alcohol content as compared to the legal limit in Kentucky--regarding whether the crash was foreseeable. In fact, LINA erroneously garbled even 5 7 this single piece of evidence: rather than comparing Espinoza’s blood alcohol content to Kentucky’s legal l imit, LINA cited his urine alcohol concentration and compared it to Kentucky’s legal

Even t h i s e v i de nce offered only weak support of LINA’s case in 56 Sanchez. The Fifth Circuit noted that this constitut ed a “lesser amount” of evidence “on the issue of whether or not a crash in these circumsta nces was an ‘unforeseeable’ event” rel ative to the evide nce on causati o n o f t he crash, and also stated that “[a]dditi onal evidence regarding the foreseeab ility of a fata l c r a s h resulting from driving under the influence would have strengthe ned LINA’s decision. ” Id. at 233 & n.3. Defendant s request that the Cour t take judicial notice of a

57 “‘Kentuck y Safety Facts” tip sheet promulgat ed by the Kentucky Office of Highway Safety on its official website,” which is a “public record.” Document No. 44 at 7. The “Safety Facts” tip sheet on a web site is not a part of the administr ative record, and does not fall within the limited exception s for evidence not within the administr ative record that may be considere d when reviewing a plan administr ator’s denial of benefits. See Vega v. Nat’l Life Ins. Serv s., Inc., 188 F.3d287, 299(5th Cir . 1999) (en banc), abrogated on other grounds by Metropoli tan Life Ins. C o . v . Glenn, 12 8 S. Ct. 2343 (2008) (noting the limit ed except ions permitting evidence outside the administr ative record: evide nce “rela ted to either interpret ing the plan,” such as “how an administr ator has interpret ed the terms of the plan in other instances ,” and ev idence “e xplaining medical terms andprocedur es relati ng to theclaim”). 25 Case: 11-20451 Document: 00511887863 Page: 25 Date Filed: 06/15/2012

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limit for blood alcohol concentration. LINA repeated this error in its appeal denial letter, after Plaintiff’s attorney had specifically pointed out LINA’s error in its first denial letter. Moreover, instead of considering a n y o t her facts specific to the case, LINA effectively adopted a stance that a crash resulting from any blood alcohol content over the legal limit is per se foreseeable, and therefore per se not an “accident.” For instance, its internal notes reveal that LINA presumed Espinoza’s awareness of the dangers of drunk driving (and therefore the foreseeability of his own death res u l t i n g therefrom) unless something in the administrative record indicated otherwise:

There is nothing in file to support fact that Mr. Espinoza was not aware of the risks involved in operating his vehicle while intoxicated. Therefore, his death was a foreseeable result of hi s a c t ions and thus not an accident. 5 8

As a l r eady observed, LINA’s initial denial letter cited only to Espinoza’s urine alcohol content, and otherwise asserted t hat “every state in the nation has criminalized drunk driving,” which therefore put “[a]ll licensed motorists throughout the Uni t ed States . . . on notice, by operation of law, of the state-declared prohibitions against drunk driving and its consequences.” 5 9

Admin. Record at 76. 58 Id. at 2 09. 59 26 Case: 11-20451 Document: 00511887863 Page: 26 Date Filed: 06/15/2012

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Finally, LINA’s denial of Plaintiff’s appeal flatly states the per

serule it applied in this case: Having reviewed the available record, indications are that Mr. Espinoza wa s driving under the influence of alcohol at the time of this motor vehicle crash. This resulted in his death. Injury or deat h r e s ulting from driving under the influence o f alcohol is considered foreseeable and is not covered by the provisions of [the Policies]. Driving when intoxicated precludes a finding that a death is Accidental . 6 0

No circ u i t court considering drunk driving crashes has approved a claims administrat o r ’ s u s e of a per se rule in the context of ERISA accidental death policies. To the contrary, the courts consistently have expressed disapprobation f o r the use of such a rule. Se e LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment and Dependent Life Ins. Plan, 605 F.3d 789, 802 (10th Cir. 2010) (noting that “[c]ourts have consistently rejected such a per se rule, as would we,” and collecting cases);

see also Stamp v. Metro. Life Ins. Co., 531 F.3d 84, 91 & n.9 (1st Cir.), cert. denied , 129 S. Ct. 636 (2008) (rejecting “categorical determination that all alcohol-related deaths are per se accidental or nonaccidental” by noting that “we have been careful to explain that the proper approach is fact-specific and that the decedent’s degree of intoxication is p a r ticularly probative,” and further reviewing the evidence relied upon by the administrator--including

Id. at 9 8 (emphas is added) . 60 27 Case: 11-20451 Document: 00511887863 Page: 27 Date Filed: 06/15/2012

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a n internal medical department report, online resources, and a university police handbook--that constituted a “well-developed record of the severe impairment that would be expected from Mr. Stamp’s level of intox i c a t i on”); Lennon v. Metro. Life Ins. Co., 504 F.3d 617, 619, 622, 624 (6th Cir. 2007) (noting that under the pa r t i cular facts, including the insured’s “extremely high bloodalcohol content” of 0.321, the administrator reasonably determined that the insured’s death was not an accident, but declining to reach “the question of whether a fiduciary can reasonably deny ‘accidental’ benefits for injury that results from any negligent or any illegal behavior, or from driving while only somewhat impaired”); accord Eckelberry v. Reliastar Life Ins. Co., 469 F.3d 6 1 340, 345 (4th Cir. 2006); Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104, 1106, 1110 (7th Cir. 1998). 6 2

In a later case, the Sixth Circuit character ize d the Lennon 6 1 majority as refusing “to impose a blanke t standar d allowin g insurer s to consider injuries resulting from any wreck in wh i c h the driver is intoxicat ed as nonaccide ntal.” Kovach v. Zurich Am . Ins. Co., 587 F.3d 323, 331 (6th Cir. 2009). Inde e d , Kovach distingui shed Lennon on its f a c t s , i ncluding the “most obvious disparity ” between the degree of intoxicat ion (0.32 1 versus 0.148 blood alcohol content), and concluded that the administr ator abus ed its di scretion. Id. at 331, 338.

District courts have followed the same r e a s o n i n g . See, e.g. , 62 Danouvong , 6 5 9 F . Supp. 2d at 326 (holding that the plan administr ator abused its discretio n where it “conclude d that the crash was foreseeab le from the fact that Mr. Danouv o n g ’s BAC was 0.26 percent and its ipse dixit pronouncements, without citation either to the re cord or to authority , that ‘[t]he hazards of driving while intoxicat ed are w i de ly known and publicize d’ a n d t h at ‘[i]t is also well-known in the general public that driving while intoxicat ed could result in bodily harm or death’”); Loberg v. Cigna Group Ins., N o. 8:09CV280, 2011 WL 61205 9, at * 7 ( D . Neb. Feb. 10, 2011) (“Plan administr ators may not utilize a categoric al rule t hat alcoh ol-relate d crashesare not accidents .”). 28 Case: 11-20451 Document: 00511887863 Page: 28 Date Filed: 06/15/2012

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The above cases are persuasive, particularly in light of the Fifth Circuit’s instructions that “the administrator can abuse his discretion if he fails to obtain the necessary i n f o rmation,” Salley, 966 F.2d at 1015, and that an administrator abuses its discretion if its “decision is not based on evidence, even if disputable, that clearly suppo r t s the basis for its denial.” H o l land, 576 F.3d at 246 (internal quotation marks and citation omitted). Accordingly, LINA abused its discretion in determining that Espinoza’s death was not an “accident.”

C. Award For the foregoing reasons, Plaintiff is entitled to an award of the Policies’ benefit s due under the Plan, plus interest. 6 3 Defendants have asked for remand to LINA for further review if the Court “determines the claims decision was not procedurally correct.” That is not the Court’s decision; to the contrary, this

6 4 decision is based on LINA’s abuse of its discretion, not on

Although ERISA does not expressly provide for an awa r d of 63 prejudgme n t i n terest to prevailin g beneficia ries, it is within the Court’s discretio n to award prejudgme nt interest here because that remedy is not precluded by ERISA a n d in fact furthers “the congressi onal policies embodied in the act.” Hansen v. Cont’l Ins. Co., 940 F.2d 971, 984 n.11 (5th Cir. 1991); see also Roig v. Ltd. L o n g Term Disabilit y P r o gram, No. CIV.A.99- 2460, 2000 WL 1146522, at *15 (E.D. La. Aug. 4 , 2000) (Vance, J.). An award of prejudgment inte rest is appropriat e due to P l a i n tiff’s loss of use of insurance proceeds to which she was entitled, and also to encourage plan administr ators to resolve di sputes quickly and fairly without recourse to litigatio n. S e e Roig, 2000 WL 1146522, at *15 (h olding same).

DocumentNo. 54 a t 15. 64 29 Case: 11-20451 Document: 00511887863 Page: 29 Date Filed: 06/15/2012

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a procedural defect. “If an administrator has made a decision denying benefits when the record does not support such a denial, the court may, upon finding an abuse of discretion on the part of the administrator, award the amount due on the claim and attorneys’ fees.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 302 (5th Cir. 1999) (en banc), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008). While remand may be justified in “some special circumstances,” the Fifth Circuit in Vega “decline[d] to remand to the administrator to allow him to make a more complet e record” on whether the insured’s misrepresentation in seeking coverage was “ma t e rial,” where the record al r e a dy developed contained insufficient evidence to support a conclusion of materiality. Id. at 302 n.13. The court sought “to encourage each of the parties to make its record before t h e case

comes to federal court,” and also noted that “it would be unfair to allow the administrator greater opportunity at making a record than the claimant enjoys.” Id. Because LINA twice had the opportunity directly to address the only question at issue--whether Espinoza’s death was an “accident” under the Policie s - -and because both times it applied a legally incorrect definition to the undefined term “accident,” and further made decisions without sufficient evidence t o support its determination, remand is not appropriate. Cf. Schadler v. Anthem Life Ins., 147 F.3d 388, 398 (5th Cir. 1998) (holding that remand

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was appropriate where the plan administrator’s denial was based only upon the erroneous conclusion that the plaint i f f was not eligible for policy coverage; the administrator thus “never had occasion to exercise any discretion to interpret the terms of the Plan,” or to make a full development of relevant facts a n d a decision thereon). However, Plaintiff has establish ed entitlement to an award only from the Plan, not from all named Defendants. See29 U.S.C. § 1132(d)(2) (“Any money judgment under this subchapter against an employee benefit plan shall be enforceable only against the plan as

an entity and shall not be enforceable against any other person unless l i ability against such person is established in his individual capacity under this subchapter.”). Plaintiff’s motion will therefore be granted with respect to the Plan, but denied as to all other defendants. 6 5

See Williams v. Cent. Cartage Co., 149 F.3d 1173, 1998 WL 412984, 65 at *1 (5t h Cir. 1998) (unpublished op.) (“In the absenc e of evidence of a breach of fiduciary duty, a judgment for the amount of benefits denied i s a g ainst an employee benefit plan . . . .” (internal footnote omitted)) . Although Plaintiff alludes to LINA’s alleged breach of fiduciaryduty in the context of arguing for great er weightto be gi ven to considera tion of its con f lict of interest, see Document No. 1 at 8, Document No. 48 at 19, she has made no showing or argume n t r e g a r d i ng a breach of fiduc i a r y duty claim under ERISA, and indeed cannot in light of her clear request for recovery of benefits wrongfull y denied, a claim under 29 U.S.C. § 1132(a)(1 )(B). D ocument No. 1 at 8; see Rhorer v. Raytheon Eng’rs and Construct ors, Inc., 181 F.3d 634, 639 (5th Cir. 1999) (“Accordi ngly, because § 1132(a)(1 )(B) affords Rhorer an avenue for legal redress, she may not simultane ously maintain her claim for breach of fiduciary duty.” (citing and discussin g Varity Corp. v. Howe, 116 S. Ct. 1065, 1077-79 (1996); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610- 11 (5th C ir. 1998) )).

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Remaining to be determined are whether attorney’s fees should be awarded to Plaintiff under 29 U.S.C. § 1132(g)(1) and whatever remaining cause of action, if any, Plaintiff may have against the other Defendants Becon and LINA.

IV. Order Based on the foregoing, it is ORDERED that Defendants’ Motion for Summary Judgment (Document No. 23) is DENIED. It is further ORDERED that Plaintiff Debra Firman’s Cross-Motion for Summary Judgment (Document No. 53) is GRANTED in part, and Plaintiff Debra Firman shall have and recover of and from Defendant Becon Personal Accident Insurance Plan/502 the benefits payable for the accidental death of Gilberto Espinoza under LINA Group Accident Policy OK 826455 and LINA Vo luntary Personal Accident Insurance Group Policy OK 822833, which accidental death benefits the Court

Further, although the Fifth Circuit h a s h eld that an employer was properly named as a defendant (thereby implying the possibili ty of recovery) , i t did so under the specific facts where the plan had “no meaningfu l existence separate from [the employer] because the Voucher Plan is funded by the gener al assets of the p artnershi p,” and where “it was indisputably [the employer’ s] decision” to de n y t h e plaintiff s’ benefits. Musmeci v. Schwegmann Gian t Super Mkts., Inc., 332 F.3d 339, 350 (5th Cir. 2003). Plaintiff has made no such showing of intertwin ing between any other defendant and the Plan, and t h e r efore has failed to show her entitleme nt to summary judgment against those other defendant s. Cf. Walker v. Kimberly- Clark Corp., No. 1:08CV146 -SA-JAD, 2010 WL 611007, at *7 (N.D. Miss. Feb. 17, 2010) (dismissi ng a defendant upon its motion where the plaintiff “failed to bring forth any evidence that these e n t i t ies are so intertwin ed that the employer is the true party in interest” ). 32 Case: 11-20451 Document: 00511887863 Page: 32 Date Filed: 06/15/2012

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understands from the p l eadings total $210,000, plus pre-judgment interest on these benefits from the dates they were due to be paid until the date of Final Judgment. Plaintiff’s Cross-Motion for Summary Judgment is otherwise DENIED with respect to Defendants Becon Construction Company, Inc., and Life Insurance Company of North America. It is further ORDERED that within fourteen (14) days after the entry of this Order the parties shall jointly provide to the Court an agreedcalculation setting forth the amount of the benefits and the prejudgment interest due under this Order for inclusion in the Court’s Final Judgment. It is further ORDERED that within fourteen (14) days after the entry of this Order the parties’ counsel shall personally confer in a good faith attempt to reach agreement on whether Plaintiff is entitled to

recover attorney’s fees and expenses and, if so, to reach an agreement upon the amount of r e a s onable and necessary attorney’s fees and expenses that Plaintiff is entitled to recover, if any. The parties shall promptly advise the Court of that agreement. If good faith efforts to reach agreement on attorney ’ s fees should fail, then Plaintiff’s attorne y may file his affidavit for attorney’s fees and expenses and supporting material within twentyone (21) days after the date of this Order, together with a brief showing entitlement to t h e same, and Defendant may file a

c ontroverting affidavit and supporting materials, and a brief

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s e tting forth Defendant’s position, within ten (10) days aft e r having been se rve d with Plaintiff’s affidavit and supporting materials. It is SO ORDERED. The Clerk will enter this Order, providing a correct copy to all counsel of record. SIGNED in Houston, Texas, on this 15th day of April, 2011.

____________________________________

EWING WERLEIN, JR. UNITED STATES DISTRICT JUDGE

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