* Pursuant to 5th Cir. R. 47.5, the Court has determ ined th at this opinio n should not be published and is not precedent except under the limit ed circumstances set fo rth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED March 15, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 06-30804 Summary Calendar

RAVIN STEVENSON CARRIER, Pl aint iff-Appellant,

versus VETERANS LIFE INSURANCE COMPANY, Defendant-Appellee. Appeal from the United States District Court fo r the Western District of Louisiana (No. 2:05-CV-1509)

Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM: * Ravin Carrier (“Carrier”) appeals from the district court’s grant of summary judgment. We affirm.2 I. FACTUAL AND PROCEDURAL BACKGROUND Veteran s Insurance Company (“Veterans”) issued accidental death insurance to James B. Stevenson (“Stevenson”) in the amo unt of $200,000. Stevenson named his daughter Carrier as the sole beneficiary. The policy includes an intoxication provision that states that no benefit shall be paid fo r death “caused by or resulting from
. . . a blood alcohol level of .10% (by weight or volume) or higher, or acting under the influence or effects of any alcohol.” Stevenson died on July 26, 2004, aft er a fall down a flight of stai rs. Carrier concedes that Stevenson was intoxicated at the time of his fall but argues that his blindness and unfamiliarit y wit h his surroundings were the primary cause of his fall. When Stevenson arrived at the hospital after his fall, his blood was tested, showing a blood alcohol level of .26%. Carrier filed suit seeking payment of the accidental death benefits. Veterans
mo ved fo r summary judgment, contending th at it was not requi red to pay the benefits because of Stevenson’s intoxication. The district court granted summary judgment in Veterans’ favor. II. DISCUSSION This court reviews the grant of summary judgment de novo. Schneider v. Nat’l Transp. v. Ford Motor Co. , 280 F.3d 532, 536 (5th Cir. 2002). The moving party is entitled to summary j udgment as a mat ter of law when the pleadings and affidavit s establish th at there are no genuine issues of mat erial fact left to res olve. Celotex Corp. v. Catrett , 477 U.S. 317, 323-25 (1986). In Loui siana, an alcohol exclusion operates where the insurance com pany demo nstrates by a preponderance of th e evidence that the insured was intoxicated to the point that his mental and physical faculties were affected and th at the int oxication was a contri buting cause of the accident. Ober v. CUNA Mut. Soc’y , 645 So.2d 231, 236 (La. Ct. App. 1994); Matthew s v. All Am. Assurance Co. , 226 So.2d 181, 183 (La. Ct. A pp. 1969). The first element here is satisfied by Carrier’s1 We do not consider Appellant’s challenge to the admission of evidenc e. Carrier did not

object to this evidence before the district court, and we decline to review it on appeal. Fed. R. Evid. 103(a)(1); Capital Marine Supply, Inc. v. Thomas , 719 F.2d 104, 106 n.2 (5th Cir. 1983). 3 concession th at her fat her was int oxicated at the time of his accident. Carrier contends, however, that Stevenson’s blindness and his lack of familiarit y wit h his surroundings were the cause of his accident rather th an his int oxication. She argues that this is a remaining genuine issue of material fact that should be left fo r jury determination. Veterans need only prove that Stevenson’s int oxication was
a contri buting factor to his accident by a preponderance of the evidence. See Moore v. Central Am. Li fe Ins. Co. , 535 So.2d 773, 776 (La. Ct. App. 1988). We hold that the testimo ny o f Veterans’ expert witness, Dr. Gary Wimbish, that Stevenson’s level of intoxication impaired his faculties and contri buted to his death is sufficient to meet this burden and to entitle Veterans to summary judgment as a matter of law. 1 III. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court.