### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60683

JOSH PORTER, Individually and on behalf of all wrongful death beneficiaries of Elizabeth A. Porter, Plaintiff - Appellee Cross-Appellant
v. LOWE’S COMPANIES, INCORPORATED’S BUSINESS TRAVEL ACCIDENT INSURANCE PLAN; GERBER LIFE INSURANCE COMPANY,Defendants - Appellants CrossAppellees

Appeals from the United States District Court f or the Southern District of Mississippi

Before DAVIS, JONES, and BENAVIDES, Circuit Judges. W. EUGENE DAVIS, Circuit Judge: Plaintiff Josh P orter brought suit against Defendants Lowe’s C ompanies, Incorporated’s Business Travel Accident Insurance Plan, and G e rber Life Insurance Company to challenge the P lan Administrator’s denial of benefits under an ERISA Plan. The district c ourt granted r elief from t h at d enial and

a w arded b enefits, concluding t hat the Plan Administrator h ad abused its discretion. Because we find the Plan Administrator did not abuse its discretion, we reverse and render judgment in favor of the defendants. U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D Septem ber 24, 2013 Ly l e W . Cay ce Clerk Case: 12-60683 Document: 00512384125 Page: 1 Date Filed: 09/24/2013No. 12-60683 I. This is a s u i t t o recover benefits u nder a plan governed by the Employmen t R e t i rement Income Security Act of 1974 (“ERISA”). 1 Elizabeth Porter (“Elizabeth”) d ied while employed as a manager a t Lowe’s, Inc. (“Lowe’s”). As an employee o f Lowe’s, Elizabeth was c overed under the Business Travel Accident Insu r a n c e P lan (“the Plan”). The Plan is established and maintained by Lowe’s a nd regulated under ERISA. Gerber L i f e Insurance Company (“Gerber”) underwrote and insured the Plan. A.C. Newman & Company I n s u r a n c e C o r r e s p o n dents, I n c
. ( “ N e w m a n ” ) , a n i n d e p e n d e n t p l a n a d m i n i s t r a t o r , administered the Plan. 2 The Plan gave the Administrator t h e power “to interpret the terms of the Plan and to determine the eligibility for Plan benefits.” Josh Porter (“Mr. Porter”) is the surviving spouse of Elizabeth and beneficiary of the Plan. Elizabeth was an Administrative Manager at Lowe’s. On February 24, 2008, she closed the store a nd was returning home when s he received a call that the security alarm at L owe’s h a d b een triggered. Elizabeth turned around to return to the store. She was one o f t h r e e e m p loyees on call t o respond to the alarm. En route to the store, her car was hit head-on by a n a utomobile in the wrong lane of traffic. Both Elizabeth and her unborn child died. The Plan p rovides benefits for a death t h at o c c u r r e d o n a bona fide business trip in furtherance of Lowe’s b usiness. T he Plan p rovides i n pertinent part:

1 29 U

. S. C. § 1001 et s eq.

2 Though originally nam ed as a d ef end ant, N ew m an has been d is mis s ed b a s e d on a s tip ul a t i o n that G erber w ould be liable f or any d am ages res ulting f rom a j ud gm ent f

or the Plaintif f

. T hus the p arties in this ap p eal are G erber and the Plan ( collectively “D ef end ants ”)

. 2 Case: 12-60683 Document: 00512384125 Page: 2 Date Filed: 09/24/2013No. 12-60683

SECTION V - COVERAGE PROVISION Description of Hazards Coverage wil l a p p ly to an Injury sustained by an Insured Person when on Business for the Policyholder during any b onafide trip

. Coverage for such trip begi n s on the later of when an Insured Person leaves his o r h er place of: ( a ) r e s idence; or (b) regular employment; for the purpose of going on such trip. Coverage for such trip terminates on the earlier of when an Insured Person returns to his or her p lace of: (a) residence; o r ( b ) r e gular employment; following such trip . . . .

. . . . SECTION II - DEFINITIONS When On Business For the Policyholder Furthering the busi n e s s o f t he Policyholder. This does n ot include
an Injury sustained during travel to and from work , leave of absence, vacation or personal deviation.

. . . . Bonafide Trip A t rip made in good faith and authorized by the Policyholder for t h e purpose of furthering the business of the Policyholder. (emphasis added). As emphasized above, the Plan explicitly excludes from coverage injuries sustained “during travel to and from w ork.” Thus the question of coverage turns

on whether Elizabeth’s accident occurred while she was on a “bonafide trip”—in which case Mr. Porter could recover b e nefits— o r if her accident s imply occurred “during travel t o and from work”—in which case Mr. Porter could not recover benefits. On M ay 14, 2008, Mr. P orter m a d e a c l a i m for benefits under t he Plan. Newman investigated the claim and wrote to Lowe’s t o inquire into Elizabeth’s employment schedule, her normal j ob duties, and w h e t h e r she received a

3 Case: 12-60683 Document: 00512384125 Page: 3 Date Filed: 09/24/2013No. 12-60683

workers’ compensation award. Lowe’ s r e s p o n d e d t h a t h e r w o r k e r s ’ c o m p e n s a tion claim was “accepted a s c o m p e n sable based on [ the] fact she was on a special errand while returnin g t o the store to shut off the alarm.” (emphasis added). Newman also wrote to Lowe’s: “As Mrs. Porter’s name was on file with the alarm
company as an employee responsible t o reply to an a l a r m , p lease confirm that this was part of her regular job duties.” Lowe’s “ confirm[ed] that responding to alarms was part o f Elizabeth Porter’s regu l a r j o b duties.” While the job description of Elizabeth’s duties d oes not specifically list responding to security alarm triggers, it d oes s ta t e t h a t her job “ requires morning, afternoon and evening availability any day of the week.” On October 22, 2008, Newman issued an opinion denying benefits which stated t hat “ [a]t the time of the motor vehicle crash, Mrs. Porter was traveling to work to perform her r egular job duties, thus, she was not o n Business for the Policyholder during any bonafide trip a t the time of her motor v ehicle crash.” Mr. Porter appealed the denial and Newman again denied benefits. Mr. Porter appealed to the district court. The parties agreed that there

w a s n o need for discovery and filed cross-motions for summary judgment. The district court f

ound t hat Newman’s conclusion t hat Elizabeth was not on a bona fide business trip was legally incorrect and an abuse of discretion. The district c o u r t e ntered judgment for Mr. Porter i n the sum of $181,830.37, plus pre-judgment interest, but later denied Mr. P orter’s request for attorneys’ fees because there was no “bad faith” in denying the claim. II. “We review a district court’s grant o f summary judgment i n ERISA cases de novo, applying the same standard as the district court.” 3 Summary judgment

3 La f leur v
. La

. H ’l th Serv

. & I n d e m
. C o
. , 563 F. 3d 148, 153 ( 5th Cir. 2009) ( internal citations om itted )

.

4 Case: 12-60683 Document: 00512384125 Page: 4 Date Filed: 09/24/2013No. 12-60683

is appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. 4 When, as here, t he ERISA plan grants the administrator t he discretion to interpret the meaning of the plan, this court will r e verse a n administrator’s decision only for a n abuse o f discretion. 5 The fact that t he evidence is disputable will not invalidate the decisi on; the evidence “need o nly assure that the

a d m i n i s t r a t o r ’ s d e c i s i o n f a l l s o m e w h e r e o n t h e c o n t i n u u m o f reasonableness—even if on the low end.” 6 Stated d iff e r e n t l y , “If the plan fiduciary’s decision is supported by substantial evidence and is not arbitrary and capricious, it must prevail.” 7 Applying an abuse of discretion revi e w o f a n administrator’s interpretation of the plan consists of a two- s t e p p r o cess: first inquiring whether the p lan administrator’s decision w as “legally correct,” 8 and, if it is not, secondly inquiring whether the administrator abused his discretion. 9

4 Fed

. R. Civ. P. 56( a)

.
5 Crow el l v
. Shel l O i l Co. , 541 F. 3d 295, 312 ( 5th Cir. 2008)

.
6 Corry v
. Li berty Li f

e A ssur. Co. of Boston , 499 F .3d 389, 398 ( 5th Cir. 2007) ( internal citations om itted )

.

7 El l i s v
. Li berty Li f

e A ssur. Co. of Boston , 394 F. 3d 262, 273 ( 5th Cir. 2004)

.
8 To d eterm ine if the ad minis trator’s d ecis ion is legally correct, the court cons id ers : “( 1)
w hether the ad m inis trator has g iven the p lan a unif o r m c o n s truction, ( 2) whether the interp retation is cons is tent w ith a f air read ing of the plan, and ( 3) any unant i c i p a ted cos ts res ulting f

rom d if f erent interp r e tations of the p lan. ” Crow el l , 541 F. 3d at 312 ( quoting Threa dgi l l v
. P

rudenti a l Secs. G rp
. , 145 F. 3d 286, 292- 93 ( 5th Cir. 1998) )

. The factor m os t
w orth cons id ering is “w hether the ad m inis t r a t o r ’ s interp retation is cons is tent w ith a f air read ing of the p lan. ” Id

. at 313 (quoting G ossel i nk v
. A T&T, Inc. , 272 F. 3d 722, 727 ( 5th Cir. 2001) )

.
9 Crow el l , 541 F. 3d at 312. If the court determ ines the ad m inis trator’s interp retation is not legally correct, it can p roceed to the s econd s tep and as s es s es w hether the ad m inis trator abus ed its d is c r e t i o n , cons id ering: “( 1) the internal cons is tency of the p lan und er the
a d m i nis trator’s interp retation, ( 2) any relevant regulations f orm ulated by the ap p rop riate ad m inis trative agencies , and ( 3) the f actual back ground of the determ ination and any inf erences of lack of good f aith. ” G ossel i nk , 272 F. 3d at 726.

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I f the administrator b oth administers and insures the Plan, such a conflict of i n t e r e s t i s w eighed as a “factor in determining whether there i s an a buse o f discretion.” 1 0 Notably, this court c an “bypass, without deciding, [the issue o f] whether the Plan Administrator’s denial was legally correct, reviewing only whether the Plan Administrator abused its d iscretion in denying the claim” i f t h a t can be “more readily determine[d].” 1 1 III. The district court foun d t h at because the Plan reserved to the Administrator the discretion in both plan int e rpretation and eligibility determination, the proper standard of review is the arbitrary and capricious standard. A nd t he district court found that t h ere was no conflict of interest, as the Administrator was not also insuring the Plan. N e i t h e r p a r t y c h a l l e n ges these conclusions on appeal. The district c ourt held that the determination by Newman, t he Plan Administrator, to d eny benefits was not l egally correct because the “only fair construction t o put on the phrase ‘travel to and from work’ is travel in the ordinary daily commute” and found that this is the “commonly a scribed to this type of ex c l u sion.” A fter concluding that Newman’s d ecision was not legally correct, the district court w ent on t o c onclude that the decision to deny benefits “was not supported by the evidence” and was an abuse of discretion. Defendants argue that the district court essentially rewrote the terms of the Plan to cover Elizabeth’s norm a l c ommute as a “bonafide business trip.” They contend t h at Newman interpreted the phrase “travel to and from work” in

1 0 Crow el l , 541 F. 3d at 312

. ( quoting M etro. Li f e Ins. Co. v. G l enn , 554 U. S. 105, 114 ( 2008) )

.

1 1 H ol l a nd v
. Int’l Pa

p er Co. v
. Ret. Pl a n , 576 F. 3d 240, 246 n. 2 ( 5th C ir. 2009)

.

6 Case: 12-60683 Document: 00512384125 Page: 6 Date Filed: 09/24/2013No. 12-60683

its common sense meaning as dictated by this court’s ERISA jurisprudence. 1 2 Further, when a plan a dministrator is given b road discretion to interpret a plan, it has t he power to resolve ambiguities. 1 3 And as emphasized above, the question is not whether t he interpretation of the Plan “is most persuasive, but whether the plan administrator’s interpretation is unreasonable.” 1 4 Mr. Porter c ites, a nd the district court relied upon, several c a ses with similar p olicy provisions as standing for the principle that accidents which take place during the ordinary commute are excluded from c ov e r a g e , but businessrelated deviations beyond the normal commute—whether spatially or temporally—are covered. 1 5

1 2 Tucker v
. S hrev ep ort Tra nsi t M gm t. I nc. , 226 F. 3d 394, 398 (5th Cir. 2000)

.

1 3 See H i

gh v. E- Sys. Inc. , 459 F

. 3d 573, 579 ( 5th Cir. 2006)

. M r. Po r t e r a r g u e s throughout that am biguities m us t be cons trued in f avor of the ins ured

. While typ ically true, this is not the cas e when a p lan ad m inis trator is given the d is cretion to interp ret the term s of the p lan. O nly w hen the p lan term s rem ain am biguous af ter ap p lying ord inary princip les of contract interp retation d oes this court ap ply the rule of contra prof erentum and cons true the term s s trictly in f avor of the ins ured

. [ Plaintif f] H igh’s cas e, how ever, d oes not warrant the ap p lication o f t h i s r ule; the language of the E- Sys tem s Plan is [ not] am biguous and , as E- Sys tem s s u g g e s ts , by g iving M etLif e [the Plan Ad m inis trator] com plete dis cretion to interp ret the p lans , if there had been an am biguity, M etLif e w as em p ow ered to res olve it, exercis ing “interp retive d is cretion. ” H i gh , 459 F. 3d at 5 7 8

- 79 ( citations om itted ) ; see a l so Wi nters v
. Costco Whol esa l e Corp

. , 49 F. 3d 550, 554 ( 9th Cir. 1995) ( “We hold that the rule of contra p rof erentem i s not ap p licable t o s e l f

- f und ed ERISA p lans that bes tow exp licit d is cretionary authority up on an ad m inis trator to d eterm ine eligibility f or benef its or to cons true the term s of the p lan. ”)

.

1 4 Wi nters , 49 F. 3d at 553 ( internal quotation mark s om itted )

.

1 5 See 10 C OU C H ON I N S

. § 143: 13 ( “Accid ents that tak e p lace d uri n g a n i ns ured
em p loyee’s everyd ay com m ute to and f rom the p lace of e m p l oym ent are generally exp licitly exclud ed f

rom coverage und er bus ines s travel ins urance p olicies in term s of ‘ c o m m u t a tion travel, ’ ‘everyd ay travel, ’ ‘d ay- to- d ay travel, ’ or s im ilar p hras ings intend ed to id entif y travel
w hich is not, in es s ence, anything other than the ins ured ’s neces s ary and rep eated ef f orts to get to and f

rom w ork

. . . . Thes e p rovis ions are generally cons trued by the j ud iciary to m ean that there is no coverage d uring the regular travel b e t w een hom e and w ork f or the sole p urp os e of reaching the intend ed d es tination. ”)

. 7 Case: 12-60683 Document: 00512384125 Page: 7 Date Filed: 09/24/2013No. 12-60683

Most notably, the district court cited D u f fer v. American H

ome Assurance Co

. 1 6 There, the insured was killed w h i le en route to pick up a co-worker to return to the office a fter hours in o r d e r t o ascertain the cause o f an inventory shortage. 1 7 The policy at issue, a n o n-ERISA group travel insurance policy, excluded coverage for “every day travel t o and from work.” This court concluded that had “the policy intended to exclude a ll travel t o and from work or all travel betwee n h o m e and place of employment i t could h a ve done so simply.” 1 8 However, t he “modifying words ‘ every day’ before the phrase ‘ travel to and from work’ c[ould] not be d isregarded as meaningless.” 1 9 Thus, this court held that as

a result o f the modifying w o r ds “every day,” the policy only excluded t r avel on days and at hours normally related to his regul a r h o u r s o f e mployment; consequently, the insured was covered under the policy. 2 0 The district c ourt c ited Duffer in favor of finding coverage f or Mr. Porter. Yet as noted above, the policy in Duffer included the l i mi t i n g p r o v i sion “every day,” and t he Plan at issue here has no such language. Additionally , i n D uffer this c ourt acknowledged the importance of that limiting phrase and suggested that an employer could “exclude all travel to and from w ork or all travel between

1 6 512 F. 2d 793 ( 5th Cir. 1975)

.

1 7 Id. at 797.

1 8 Id.

1 9 Id.

2 0 The other cas es cited by the d is trict court contained s im ilar language, i. e. , includ ed “d ay to d ay” or “everyd ay. ” S ee, e. g. , M cN ei l y v
. L um berm ens M

ut. Ca s. Co. , 647 F. Sup p
. 1567, 1569- 7 0 ( E. D

. M ich. 1986) ( “d ay- to- d ay travel to and f rom w ork ” exclus ion d id not ap p ly to em p loyee w ho w as required to com e to w ork f or an op en hous e on Saturd ay) ; L i g o v
. Cont’l Ca s. Co. , 338 F. Sup p
. 519, 524 ( W. D

. Pa. 1972) ( “everyd ay travel to and f rom w ork ” exclus ion d id not ap p ly to em p loyee required to d eviate f rom his regular com mute to p ick up em p loyer’s
m a i l ) ; M

orni ngsta r v
. Ins. Co. of N

. A m
. , 295 F. Sup p
. 1342, 1346 ( S. D

. N

. Y

. 1 9 6 9 ) ( “com m utation travel” exc l u s i o n d i d not ap p ly to em p loyee w ho d eviated f rom norm al
com m uting route to d is cus s bus ines s at another com p any)

. 8 Case: 12-60683 Document: 00512384125 Page: 8 Date Filed: 09/24/2013No. 12-60683

home and place of employment” if it so intended. 2 1 Furthermore, neither Duffer

nor any of the cases cited by the district court involved an E RISA plan in which the plan administrat o r w a s given the discretion to interpret the terms of the plan. As discussed a bove, in our review o f t he Plan Administrator’s d ecision this court can bypass, without decidi n g , w h ether the determination was legally

cor r e c t , a n d move directly to whether the determination was an abuse of discretion. 2 2 Taking that course here, w e conclude, based o n the r ecord and arguments m ade by the parties, that the Plan Administrator did n ot abuse its discretion in denying c over a ge. The Plan Administrator w as not operating under

a conflict of i nterest and was v ested with the p ower to interpret the terms of the Plan. All of the cases cited by the d istrict court and Mr. Porter c ontained plans with l i miting language, i.e., “commutation,” “day-to- day,” o r “ e veryday.” The Policy here contains no such l anguage. A nd Elizabeth’s job description at least required “morning, afternoon and evening availability,” such that Elizabeth’s trip arguably was not a temporal or spatial d eviation from her normal c ommute. W h i l e Mr. Porter emphasizes t hat Elizabeth q ualified for a workers’ compensation award because sh e w a s o n a “special errand” for her employer, that is a state l aw concept which th e t e r m s o f t h e P lan do not reference, and
coverage under worker’s compensation d oes not n e cessarily mean that c overage under the ERISA P l a n f o l l o w s. For these reasons, we f ind that the Plan Administrator’s denial of coverage was not an abuse of discretion. 2 3

2 1 Id.

2 2 See H ol l and , 576 F. 3d at 246 n. 2. See a lso D uhon v
. Texa co, Inc. , 15 F .3d 1302, 1307
n
. 3 ( 5th Cir. 1994) ( “H ow ever, the review ing court is not rigid l y c o nf ined to this tw o- s tep analys is in every cas e. ”)

.

2 3 Cons equently, w e need not ad dres s D ef end ants ’ argum ent that a bus ines s trip had not com m enced as required by the Plan becaus e “Coverage f or s uch a trip begins on the later of w hen an Ins ured P ers on leaves his or her p lace of : ( a) res id ence; or ( b) regular em p loym ent; 9 Case: 12-60683 Document: 00512384125 Page: 9 Date Filed: 09/24/2013No. 12-60683 IV. Accordingly, we REVERSE the district court and RENDER judgment in favor of defendants. REVERSED. RENDERED.

f or the p urp os e of going on s uch trip

. ” And becaus e w e conclud e that the Plan Ad m inis trator d id not abus e its d is cretion in d enying coverage und er the Plan, w e need not ad d res s D ef end ants ’ argum ent that the d is trict court erred in calculating p rejud gm ent interes t, or M r. Porter’s argum ent on cros s - ap p eal that the d is trict court erred in d eclining to aw ard attorneys ’ f ees
. 10 Case: 12-60683 Document: 00512384125 Page: 10 Date Filed: 09/24/2013