ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SHELIA PHILLIPS NLEMADIM, §

§

Plaintiff, §

§

v. § Civil Action No. 3:06-CV-0057-N

§

HARTFORD LIFE AND ACCIDENT §

INSURANCE COMPANY, et al., §

§

Defendants. §

ORDER

This Order addresses Plaintiff Shelia Nlemadim’s and Defendant Hartford Life and

Accident Insurance Co.’s (“Hartford”) motions for summary judgment [61 & 63].

Nlemadim’s and Hartford’s motions turn on whether Hartford abused its discretion in

interpreting its insurance policy’s drug exclusion. Because Hartford used a legally correct

construction of the plan, the Court grants Hartford’s motion and denies Nlemadim’s.

I. BACKGROUND

Plaintiff Shelia Nlemadim is an employee of Baylor Health Care Systems (“Baylor”)

and an insured under Group Accidental Death and Dismemberment Policy No. 46-ADDS0304 (the “Policy”)issued by Hartford to Baylor for its employees. Hartford served as both

the insurer and the plan administrator. Baylor provided Nlemadim with basic accidental

death and dismemberment (“AD&D”) coverage, and Nlemadim elected to pay for additional

Voluntary AD&D coverage for herself, her husband, and her daughter.

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ORDER – PAGE 2

On October 1, 2004, Nlemadim’s husband, Terry L. Bagley, died in a motor vehicle

accident. Bagley was driving westbound on a two-lane highway when his vehicle crossed

the center median and east bound lane, left the roadway, and collided with a metal sign post.

The police report indicates that Bagley was not wearing a seatbelt and was thrown from the

vehicle as it rolled down a steep embankment after colliding with the sign post. Bagley was

pronounced dead at the scene of the accident. 

Nlemadim filed a claim for accidental death benefits on November 22, 2004, and

Hartford began investigating the circumstances of the accident. On January 5, 2005,

Hartford wrote Nlemadim, stating that it needed the autopsy report and toxicology report

from the medical examiner, and provided Nlemadim an authorization form to release those

records, which Nlemadim signed. The autopsy report indicated that Bagley died of multiple

blunt force injuries sustained in the accident. The toxicology report listed various levels of

drugs in Mr. Bagley’s blood and urine. The blood report indicated positive tests for

diphenhydramine (better known by its trade name Benadryl) in the low therapeutic range;

ecgonine methyl ester and benzoylecgonine (both metabolites of cocaine) and cocaine in the

therapeutic range; and morphine (a narcotic) below the therapeutic range. Bagley’s urine

tested positive for 6-monoacetyl morphine (a marker indicative of heroin use) as well as

morphine and codeine (both metabolites of heroin).

After receiving the toxicology report, Hartford contacted Nlemadim and requested

Bagley’s prescription drug history or the names and address of his drug stores, and the names

and addresses of his attending physicians. Nlemadim informed Hartford that she “wasn’t

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ORDER – PAGE 3

involved in [her] husbands [sic] health history.” App. in Supp. of Def.’s Mot. for Summ. J.

(“App.”) at 258. She stated that, because “both . . . were private about things like that,” id.,

she did not know what medication, if any, he was taking.

On May 2, 2005, Hartford again requested the names and addresses of Bagley’s

attending physicians as well as his prescription drug history. Nlemadim responded, through

counsel, with a demand for payment of policy proceeds. On May 13, Nlemadim’s counsel

sent a supplemental letter, asserting that the toxicology report was immaterial to her claim

for benefits.

Hartford responded to Nlemadim’s counsel on May 20, 2005, citing exclusion number

6 in the Policy (“Exclusion 6”), which states: 

This policy does not cover any loss resulting from: 

. . .

6. Injury sustained while voluntarily taking drugs which federal law

prohibits dispensing without a prescription, including sedatives,

narcotics, barbiturates, amphetamines, or hallucinogens, unless the drug

is taken as prescribed or administered by a licensed physician; 

App. at 21. Hartford explained that it needed Bagley’s medical records and prescription

history to determine whether the drugs found in Bagley’s system were prescribed, and, if so,

whether they existed within therapeutic ranges. Hartford further explained that Nlemadim’s

claim could not be settled without this information. On May 31, 2005, Nlemadim’s attorney

reiterated that the requested documentation could not be provided, and on June 15, 2005,

Hartford notified Nlemadim of its decision to deny her claim.

Nlemadim appealed Hartford’s decision on August 11, 2005. As part of the appeal,

Kathleen M. Bell, RN, BSN, CCM, CDMS, LNC-CSp, performed a toxicology review to

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ORDER – PAGE 4

determine whether Bagley had taken any drugs without a prescription. Bell concluded,

“[t]here is no documentation to support that Mr. Bagley had received any cocaine substances

or morphine from a physician, or had prescriptions from a physician for cocaine or morphine.

Toxicology findings support illegal drug usage (cocaine & metabolites of heroin).” App. at

95-97. On October 10, 2005, Hartford denied Nlemadim’s appeal, citing the Policy’s

exclusion for voluntary use of drugs without a prescription, and advised her that she had

exhausted all administrative remedies. On December 12, 2005, Nlemadim filed this suit in

the Dallas County Court at Law No. 5. Hartford timely removed to this Court.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil

Procedure when “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc). In making this determination, a court must accept the

nonmovant’s evidence as true and draw all justifiable inferences in its favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

III. HARTFORD DID NOT ABUSE ITS DISCRETION 

IN DENYING NLEMADIM’S CLAIM FOR BENEFITS

At its core, this case concerns the interpretation of Exclusion 6. Nlemadim argues that

the only reasonable one is hers: that coverage is precluded only when the insured sustains

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1

Nlemadim concedes that the evidence showed various legal and illegal drugs present

in Bagley’s system, but argues that the evidence failed to support the conclusion that Bagley

was taking the drugs at the moment the accident occurred.

2

The summary plan description, for example, states: “The Insurance Carrier – not

Baylor – is responsible for the actual coverage and the AD&D benefits they provide or

arrange. All appeals regarding benefits must be made directly to them. The Insurance

Carrier has final authority on matters relating to AD&D benefits. Contact them directly for:

ORDER – PAGE 5

injury while in the act of taking (i.e., swallowing, inhaling, ingesting, injecting) illegal drugs

or drugs not prescribed by a physician. Nlemadim contends that Hartford abused its

discretion in interpreting the Policy and therefore improperly denied her claim for death and

dismemberment benefits because that denial was based on the mere presence of drugs in

Bagley’s system, which were neither prescribed nor administered by a licensed physician.1

Nlemadim also argues that Hartford further abused its discretion in making factual

determinations about Bagley’s drug use by failing to properly investigate when the drugs

found in Bagley’s blood and urine were taken, i.e., whether Bagley was engaged in the act

of ingesting or swallowing at the moment of the accident, and whether those drugs might

have been prescribed by a licensed physician. Because Hartford’s interpretation of Exclusion

6 comports with a fair reading of the Policy and because Hartford had no duty to conduct

further investigations into the circumstances of Bagley’s accident, the Court finds that

Hartford did not abuse its discretion in denying Nlemadim’s claim.

A. The Court Reviews Hartford’s Policy Interpretation 

and Factual Determinations for Abuse of Discretion

Generally, a court reviews an administrator’s denial of insurance benefits de novo.

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 (1989). However, when, as here,2

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. . . Appeal of denied claims . . . Any other benefit or administrative issues . . . .” Pl.’s First

Am. Original Compl. Ex. D at 7 (“Accident Death & Dismemberment Insurance Plan 2004

Summary Plan Description”).

ORDER – PAGE 6

a plan gives its administrator “discretionary authority to determine the eligibility for benefits

or to construe the terms of the plan,” the Court reviews the administrator’s denial of benefits

for abuse of discretion. Id. at 115; see also Wildbur v. ARCO Chem. Co., 974 F.2d 631, 636-

37 (5th Cir. 1992). 

As applied to an administrator’s interpretation of plan provisions, the abuse of

discretion standard involves a two-step process. “First, a court must determine the legally

correct interpretation of the plan.” Wildbur, 974 F.2d at 637. When determining whether

the administrator’s interpretation of the plan was “legally correct,” a court must consider:

“(1) whether the administrator has given the plan a uniform construction, (2) whether the

interpretation is consistent with a fair reading of the plan, and (3) any unanticipated costs

resulting from different interpretations of the plan.” Id. at 638. Second, “[i]f the

administrator did not give the plan the legally correct interpretation, the court must then

determine whether the administrator’s decision was an abuse of discretion.” Id. at 637. To

determine whether the administrator abused its discretion, courts consider: “(1) the internal

consistency of the plan under the administrator’s interpretation, (2) any relevant regulations

formulated by the appropriate administrative agencies, and (3) the factual background of the

determination and any inferences of lack of good faith.” Id.

A court also reviews an administrator’s factual determinations under an abuse of

discretion standard, “regardless of the administrator’s ultimate authority to determine benefit

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ORDER – PAGE 7

eligibility.” Chacko v. Sabre, 473 F.3d 604, 610 (5th Cir. 2006). When applying this

standard, a court determines whether the plan administrator acted arbitrarily or capriciously.

Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999). An

administrator acts arbitrarily or capriciously when its decision lacks “a rational connection

between the known facts and the decision or between the found facts and the evidence.”

Lain v. Unum Life Ins. of Am., 279 F.3d 337, 342 (5th Cir. 2002) (quoting Bellaire Gen.

Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir. 1996)). “Assuming that

both parties were given an opportunity to present facts to the administrator, . . . review of

factual determinations is confined to the record available to the administrator.” Meditrust,

168 F.3d at 215.

If an administrator’s decision might be tainted by a conflict of interest, however,

courts “employ[] a ‘sliding scale’ to evaluat[e] whether there was an abuse of discretion.”

MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 478 (5th Cir. 2003) (citing Vega, 188 F.3d

at 297). “The degree to which a court must abrogate its deference to the administrator

depends on the extent to which the challenging party has succeeded in substantiating its

claim that there is a conflict.” MacLachlan, 350 F.3d at 479. When one party serves as both

the plan’s administrator and the insurer there is an “inherent conflict of interest.” Lain, 279

F.3d at 343. When a conflict is minimal, however, courts apply “only a modicum less

deference than [they] otherwise would.” Vega, 188 F.3d at 301; see also Lain, 279 F.3d at

343 (applying only a “modicum less deference” where the defendant was both the insurer and

plan administrator).

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ORDER – PAGE 8

While, here, Hartford serves as both administrator and insurer, the Fifth Circuit has

said that courts should “not read into Vega a presumption that a conflict exists ipso facto

merely because the plan fiduciary both insures the plan and administers it.” Ellis v. Liberty

Life Assur. Co. of Boston, 394 F.3d 262, 270 n.18 (5th Cir. 2004). Instead, “an ERISA

plaintiff must come forward with evidence that a conflict exists.” Id. Here, Nlemadim failed

to do so. She has neither shown how this conflict affected Hartford’s decision nor provided

any other evidence of a conflict. Accordingly, the Court finds that Hartford is only

minimally conflicted and affords Hartford only a “modicum less deference.” Chacko, 473

F.3d at 610.

B. Hartford’s Interpretation of Its Policy Is Legally Correct

Nlemadim first contends that Hartford abused its discretion in interpreting the Policy

and therefore improperly denied her claim for benefits. Because Hartford’s interpretation

comports with a plain reading of the Policy, the Court finds that Hartford’s interpretation is

legally correct and therefore not an abuse of discretion.

As discussed above, when reviewing an administrator’s policy interpretation within

the Fifth Circuit’s two-step framework, the Court must first determine whether the

interpretation is legally correct by looking to the three factors laid out in Wildbur, 974 F.2d

at 637-38. If the administrator’s policy interpretation is legally sound, “the inquiry ends

because no abuse of discretion could have occurred.” Chacko, 473 F.3d at 611. Here,

neither party has put forth material evidence relevant to the first or third factors.

Accordingly, the Court looks primarily to the second factor – whether either party’s

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ORDER – PAGE 9

interpretation is consistent with a fair reading of the Policy.

Exclusion 6 states, “[t]he policy does not cover any loss resulting from . . . [i]njury

sustained while voluntarily taking drugs . . . unless the drug is taken as prescribed or

administered by a licensed physician.” App. at 21. Hartford interprets the provision to mean

that “coverage is excluded if the prohibited drugs are present in any quantity in the insured’s

body at the time of the injury . . . regardless of whether the . . . drugs . . . caused or

contributed to the injury or loss” such that “[t]he exclusion is avoided only when a licensed

physician administered or prescribed the prohibited drugs.” Def.’s Resp. to Pl.’s Mot. for

Summ. J. (“Def.’s Resp. Br.”) at 13. Nlemadim argues that Hartford’s interpretation is

unreasonable and, thus, legally incorrect. Nlemadim asserts that the exclusion’s use of the

words “while” and “taking” indicates a time frame in which the actions must occur to meet

the exclusion, and, specifically, that the decedent must have been in the process of ingesting

or swallowing the drugs “at the time/during the time/at the same time the injury was

sustained.” Pl.’s Br. in Supp. of Mot. for Summ. J. (“Pl.’s Br.”) at 32.

After reviewing the record and the parties’ arguments, the Court concludes that

Hartford’s interpretation of Exclusion 6 is consistent with a fair reading of the Policy.

“When interpreting plan provisions, . . . [courts] interpret the contract language in an

ordinary and popular sense as would a person of average intelligence and experience, such

that the language is given its generally accepted meaning if there is one.” Keszenheimer v.

Reliance Standard Life Ins. Co., 402 F.3d 504, 507 (5th Cir. 2005). Here, the operative

language of Exclusion 6 is the phrase “while voluntarily taking drugs” and, particularly, the

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3

The conjunction “while” simply makes clear that the accident must occur “during or

in the time,” or “throughout the time,” that the insured is “voluntarily taking” drugs for the

exclusion to apply, RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY 2165 (2d. ed.

2001))

ORDER – PAGE 10

word “taking.”3

 “Taking,” as used here, is the present participle of the verb “to take” and

indicates that the action must be incomplete for the exclusion to apply. Nlemadim suggests

that “take” means “to receive into the body or system, as by swallowing or inhaling,”

RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY 1937 (2d. ed. 2001) (“WEBSTERS”),

such that the exclusion applies only if the insured is in the process of swallowing or

otherwise administering the drug when the accident occurs. However, “take” has a number

of meanings. For example, “to take” could also mean: “to be subjected to; undergo,” “to

absorb or become impregnated with,” or “to use up; consume.” Id. According to Hartford,

under these latter definitions one is “taking” drugs insofar as his body is subjected to or in

the process of absorbing drugs, or until his body has used up or consumed the drugs in it.

Thus, Hartford asserts, to the extent a person has drugs in his system, he or she can

reasonably be characterized as “taking drugs.”

Hartford’s interpretation is supported by the fact that Exclusion 6 provides an

exception for medication taken “as prescribed or administered by a licensed physician.”

App. at 21 (emphasis added). The word “administered” is the past participle of the word

“administer,” which means “to make application of; give,” and indicates that such action is

in the past or complete. WEBSTER’S at 26. In other words, Exclusion 6 provides an

exception for drugs the insured was “taking” at the time he was injured, provided the drugs

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ORDER – PAGE 11

were administered by a licensed physician. If the Policy intended “taking” to mean the act

of receiving drugs into the body – i.e., swallowing or inhaling – as Nlemadim asserts,

Exclusion 6 would not require an explicit exception for past or complete administration by

a licensed physician because, by definition, such action would not fall within its terms.

Therefore, the word “taking” must mean something other than the definition proposed by

Nlemadim.

Having considered the record and the parties’ arguments, the Court finds Hartford’s

interpretation to be consistent with the plain language of Exclusion 6. As a result, the Court

concludes that Hartford’s interpretation is legally correct and need not consider whether

Hartford abused its discretion in selecting this interpretation. See Chacko, 473 F.3d at 611.

Accordingly, the Court holds that Hartford properly interpreted its policy and grants

Hartford’s motion for summary judgment on this claim.

C. Hartford Substantially Complied with Section 1133

Nlemadim next argues that Hartford failed to comply with ERISA’s notice and review

requirements because (1) the first denial letter failed to demonstrate that an exclusion was

met, (2) because Hartford failed to provide a full and fair review on appeal, and (3) because

Hartford’s final denial letter failed to demonstrate that an exclusion had been met. ERISA

requires that, when denying a participant’s claim for benefits, plan administrators must

provide “adequate notice . . . setting forth the specific reasons for such denial” and “afford

a reasonable opportunity . . . for a full and fair review by the appropriate named fiduciary of

the decision denying the claim.” 29 U.S.C. § 1133. Because Hartford’s interpretation of the

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ORDER – PAGE 12

Policy is legally correct, the Court finds that Hartford substantially complied with 29 U.S.C.

section 1133. See Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 392-93 (5th Cir. 2006)

(“Challenges to ERISA procedures are evaluated under the substantial compliance standard.

This means that technical noncompliance with ERISA procedures will be excused so long

as the purposes of section 1133 have been fulfilled.” (internal citations and quotations

omitted)).

Like her claim for Policy benefits, Nlemadim’s claim under section 1133 rests entirely

upon her proposed definition of the Policy. Hartford could have failed to comply with

section 1133 as Nlemadim alleges – that is, by failing to show that Bagely’s accident

occurred “at the time/during the time/at the same time the injury was sustained,” Pl.’s Br.

at 32 – only if the Court accepts Nlemadim’s interpretation of the Policy. Therefore, because

the Court agrees with Hartford’s interpretation of the Policy, Nlemadim’s argument under

section 1133 fails. Accordingly, the Court grants Hartford’s motion for summary judgment

as to Nlemadim’s section 1133 claim.

D. Hartford’s Factual Determinations Were Not an Abuse 

of Discretion Because Hartford Had No Duty to Investigate

Nlemadim also claims that Hartford’s abused its discretion in making factual

determinations with respect to her claim because the company failed to conduct an

investigation to determine whether the drugs found in Bagley’s system were administered

at the time of the accident and whether they might have been prescribed or administered by

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4

Nlemadim’s contends that Hartford could have distributed the medical release

authorization she signed to surrounding pharmacies to determine whether Bagley filled any

prescriptions there. This, according to Nlemadim, would have directed Hartford to any

physician Bagley may have seen..

ORDER – PAGE 13

a licensed physician.4

 Because plan administrators have no duty to investigate when the

record supports their decision, the Court grants Hartford’s motion for summary judgment as

to this claim.

Under Fifth Circuit case law, a “district court may not impose a duty to reasonably

investigate on the administrator.” Vega, 188 F.3d at 299. In Vega, the Fifth Circuit

explained:

Under our own precedent and the Supreme Court’s ruling in Bruch, we must

give deference to the administrator’s decision. That the administrator decides

a claim when conflicted, however, is a relevant factor. In a situation where the

administrator is conflicted, we will give less deference to the administrator’s

decision. In such cases, we are less likely to make forgiving inferences when

confronted with a record that arguably does not support the administrator’s

decision. Although the administrator has no duty to contemplate arguments

that could be made by the claimant, we do expect the administrator's decision

to be based on evidence, even if disputable, that clearly supports the basis for

its denial.

Id. Thus, given that the record supports Hartford’s ultimate decision to deny benefits,

Hartford had no duty to investigate in this case and cannot be held liable for failing to do so.

Even if Hartford had such a duty, the record demonstrates that Hartford took

numerous steps to obtain the information necessary to determine whether the drugs found in

Bagley’s system were taken as prescribed by a licensed physician. Indeed, Hartford gave

Nlemadim ample opportunity to provide information pertaining to her husband’s medical

history and she refused. Thus, to the extent that the results of Hartford’s investigation may

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ORDER – PAGE 14

have been incomplete, the fault likely falls on Nlemadim’s own lack of cooperation.

Accordingly, the Court grants Hartford’s motion for summary judgment as to Nlemadim’s

claim for failure to conduct an investigation.

III. NLEMADIM CONCEDES HER REMAINING CLAIMS

The Court further grants Hartford’s motion for summary judgment as to Nlemadim’s

state law claims and claims pursuant to 29 U.S.C. section 1132(a)(3). Nlemadim concedes

that her state law claims are preempted by ERISA and that she is not entitled to assert a

section 1132(a)(3) cause of action because she has an adequate remedy under section

1132(a)(1)(B). Pl.’s Resp. Br. to Def.’s Mot. for Summ. J. at 19.

IV. HARTFORD IS NOT ENTITLED TO ATTORNEYS’ FEES

Finally, the Court denies Hartford’s request for attorneys’ fees. Under ERISA, “the

court in its discretion may allow a reasonable attorney’s fee and costs of action to either

party.” 29 U.S.C. § 1132(g)(1) When deciding whether to make such an award, courts

consider “(1) the degree of the opposing party’s culpability or bad faith; (2) the ability of the

opposing party to satisfy an award; (3) whether an award would deter others acting under

similar circumstances; (4) whether the requesting party sought to benefit all participants and

beneficiaries of an ERISA plan, or to resolve a significant question regarding ERISA; and

(5) the relative merits of the parties’ positions.” See Kennedy v. Plan Adm’r for DuPont Sav.

and Inv. Plan, ___ F.3d ___, No. 05-41851, 2007 WL 2317628, at*6 (5th Cir. Aug. 15, 2007)

(citing Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980)).

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ORDER – PAGE 15

Here, these factors weigh against an award of attorneys’ fees. The Court finds that

Nlemadim’s claims were colorable and brought in good faith. As a result, the Court sees no

need to deter similar conduct and concludes that the relative merits of the parties’ positions

were not so disparate as to call for an attorneys’ fee award. The Court further notes that

Hartford’s defense in this case was likely not driven by an altruistic motive to benefit all plan

beneficiaries and that Nlemadim, as a recently widowed mother, might find herself unable

to satisfy such an award.

V. CONCLUSION

For the reasons discussed above, the Court grants Hartford’s motion for summary

judgment as to each of Nlemadim’s claims and denies Nlemadim’s motion for summary

judgment.

Signed September 26, 2007.

_________________________________

David C. Godbey

United States District Judge

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