1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

DIANA WERBIANSKYJ, ) 

) 

Plaintiff, ) 

) CAUSE NO: 3:15-CV-104 

v. ) 

) 

ZURICH AMERICAN INSURANCE ) 

COMPANY ) 

 ) 

Defendant. ) 

OPINION AND ORDER 

After Plaintiff Diana Werbianskyj’s husband was electrocuted in a work-related accident, 

Plaintiff sought accidental death benefits through two group plans provided by Defendant Zurich 

American Insurance Company (“Zurich”). Zurich denied the claims because results of a 

toxicology report indicated that Plaintiff’s husband had THC in his blood stream at the time of his 

death. Thereafter, Plaintiff filed the instant suit pursuant to 29 U.S.C. §1132(a)(1)(B) seeking a 

determination that Zurich’s denial of benefits was “arbitrary and capricious.” 

Presently before the Court is Zurich’s Motion for Summary Judgment filed on February 

25, 2016. Plaintiff responded on March 28, 2016 to which the Zurich replied on April 11, 2016. 

For the following reasons, the Motion for Summary Judgment will be GRANTED. 

APPLICABLE STANDARD 

Rule 56(a) authorizes the court to grant summary judgment when there is “no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed.R.Civ.P. 56(a). The court is required to enter summary judgment “after adequate time for 

discovery and upon motion, against a party who fails to make a showing sufficient to establish the 

existence of an element essential to that party's case, and on which that party will bear the burden 
2 

of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 

(1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 

S.Ct. 2505, 91 L.Ed.2d 202 (1986). 

FACTUAL BACKGROUND 

a. The Accident

 Mark Werbianskyj, Plaintiff’s husband, worked as a maintenance man for Parker Hannifin 

Corporation in Ligonier, Indiana until March 18, 2013 at 10:30 p.m. when he was electrocuted and 

died on the job. Immediately prior to his electrocution, Mr. Werbianskyj had finished mounting a 

replacement light fixture and had restored power to a nearby receptacle. Mr. Werbianskyj then 

went up on a scissor lift to complete the installation of the fixture and was electrocuted. (DE 36-

1). 

After this accident, a detective and maintenance supervisor examined the wires Mr. 

Werbianskyj was working with and discovered the wires were bare. A subsequent autopsy 

conducted by the Noble County Coroner provided the following narrative: 

56 yr old w male maintenance man @ Parker Hannifin. Installing lights up on 

scissor lift. Fellow employees saw him on his back on scissor lift. Yelled @ him 

– no response. Cut power, scissor lift lowered, CPR started by employees. Wiring 

examined by detective & maintenance supervisor. Bare wires noted. 1st and 2nd

degree burns to both hands. (Thumb & index finger both hands) Pupils fixed and 

dialated [sic] no respirations, no pulse. Body transported to Yeager Funeral for 

transport to forensic center for autopsy. Wife notified via phone. Report from Gary 

Cox, Detective. Exposed wires noted on housing of electrical fixtures. Photos 

taken by Gary Cox. 

(DE 36-3). The autopsy report identified the anatomic findings as (1) electrical burns, both 

thumbs and forefingers; (2) abrasions, dorsal hands and left shin; (3) pulmonary edema and 

congestion; and (4) moderate to severe coronary atherosclerosis. (DE 36-4). The toxicology report 
3 

showed blood positive for THC, Quant 5.8 ng/mL, THC-COOH, Quant 33.9 ng/mL, and caffeine. 

(Id.). The urine specimen showed positive for carboxy THC, Quant 598 ng/mL. The death 

certificate issued for Mr. Werbianskyj’s death reported “electrocution” as the immediate cause of 

death and characterized the manner of death as an “accident.” (DE 36-2). 

b. The Insurance Policies 

Zurich insured employees of Parker Hannifin Corporation under two group accident life 

insurance policies (“the Policies”).1

 Generally speaking, the Policies state that “if an Insured 

suffers a loss of life as a result of a Covered Injury, We will pay the applicable” benefit. “Covered 

Injury” is a defined term meaning “an injury directly caused by accidental means which is 

independent of all other causes, results from a Covered Accident, occurs while the Covered Person 

is insured under [these Policies], and results in a Covered Loss.” (DE 36-6, p. 7 and DE 36-7, p. 

6). The Policies further define a “Covered Loss” as “a loss which meets the requisites of one or 

more benefits or additional benefits, results from a Covered Injury, and for which benefits are 

payable under [these Policies].” (Id.). An “Injury” is defined as a “bodily injury” and the Policies 

define “Accident” as “a sudden, unexpected, specific, and abrupt event that occurs by chance at 

an identifiable time and place during the Policy term.” 2 

The Policies also contain general exclusions. Of relevance here is the Drug and Alcohol 

exclusion which provides: 

A loss will not be a Covered Loss if it is caused by, contributed to, or results from: 

... 

8. being under the influence of any prescription drug, narcotic, or 

hallucinogen, unless such prescription drug, narcotic, or hallucinogen was 

prescribed by a physician and taken in accordance with the prescribed dosage... 

(DE 36-6, p. 18; DE 36-7 p. 19).

                                                            

1

 The Policies bear the policy number GTU 3760714 and GTU 3760715. 

2

 “Covered Accident” is defined as “an Accident that results in a Covered Loss.” 
4 

c. The Claim for Benefits 

On May 30, 2013, Plaintiff submitted a claim for accidental death benefits to Zurich under 

the terms of the Policies. (DE 36-8). Upon receipt of the claim, Zurich assigned the claim to CS 

Claims Group to investigate the claim and obtain the police report, medical examiner’s report, 

autopsy report, and toxicology report. (DE 36-9). On June 28, 2013, Zurich notified Plaintiff that 

in addition to the above reports, it was requesting to review the worker’s compensation “first report 

of injury” for Mr. Werbianskyj’s death. (DE 36-10). In August, 2013, Plaintiff was notified that 

the claim had been sent for medical records review. (DE 36-11). 

Dr. William Manion, MD of Medford, New Jersey to review Mr. Werbianskyj’s records 

and opine as to the following: (1) please advise the level of intoxication for the THC in the 

deceased’s system at the time of death based on his height and weight; (2) was the THC prescribed 

by a physician and taken in accordance with a prescribed dosage; and (3) was the THC level 

enough to impair the deceased to cause the events leading to the electrocution? (DE 36-12, p. 2). 

On September 5, 2013, Dr. Manion issued his report wherein he listed the records he had reviewed, 

including the Indiana Worker’s Compensation First Report of Employee Injury, the Noble County 

Coroner Investigation Report, the Parkview Noble Hospital Records, the Ligonier Police 

Department Investigation Report, the Noble County Coroner Autopsy/Toxicology Reports and the 

Death Certificate. Dr. Manion noted that the Plaintiff had advised the Ligonier Police Department 

that several days prior to the incident, Mr. Werbianskyj had smoked marijuana at a funeral. Dr. 

Manion further reported that in his opinion the high level of THC-COOH in Mr. Werbianskyj’s 

blood indicated that he was a “chronic marijuana user.” (DE 36-12, p. 1). Dr. Manion cited 

numerous articles and studies indicating that THC concentrations in excess of 2-3 ng/mL were 
5 

statistically significant so as to impair driving ability and increase the risk of an accident. In 

conclusion, Dr. Manion opined as follows: 

 “[A]fter review of the medical literature it would be my opinion to a reasonable 

degree of medical and forensic certainty that the THC level was high enough to 

significantly impair the deceased and contribute to the events that led to his 

electrocution. The conclusion is based on multiple studies of drivers who are either 

involved in accidents or are at substantial risk for being involved in a car accident 

when their marijuana levels are at the level of 5.8 ng/mL as exhibited by Mr. Mark 

Werbianskyjj at autopsy. I hold all opinions to a reasonable degree of medical and 

forensic certainty. 

(DE 36-12, pp. 2-3).3

 Thereafter, CS Claims Group continued investigating the incident and collecting additional 

records relating to Mr. Werbianskyj’s death. The record contains numerous letters to the Plaintiff 

notifying her of the progress of the claim and the actions being undertaken in the investigation of 

the claim. (DE 36-14). 

 On September 17, 2014, Dr. Manion issued a second letter in response to a request that he 

review additional reports and answer the same three questions originally posed. Dr. Manion 

reviewed documents from the Indiana Department of Labor and the Indiana Worker’s 

Compensation Board. His letter reiterated his original conclusion stating “after review of these 

additional records, it remains my opinion to a reasonable degree of medical and forensic certainty 

that the THC level was high enough to significantly impair Mr. Werbianskyj and contribute to the 

events that led to his electrocution.” (DE 36-15, p. 8). Dr. Manion further noted that he reviewed 

no records indicating that the THC in Mr. Werbianskyj’s system was prescribed by a physician or 

taken in accordance with a prescribed dosage. Dr. Manion was also asked to opine on two 

additional questions: (1) What action from the impairment would have contributed to the outcome 

                                                            

3

 Dr. Manion stated that he had not been provided any records indicating that Mr. Werbinaskyj was 

legally prescribed marijuana. 
6 

here; and (2) Would someone not under the influence have done anything different? In response 

to the first question, Dr. Manion wrote: 

The Investigation Summary of the US Department of Labor Occupational Safety 

and Health Administration classified the Human Factor as ‘Misjudgment of 

hazardous situation.’ The misjudgment of the hazardous situation occurred because 

Mr. Werbianskyj was significantly impaired by the high level of the active 

marijuana drug delta 9 THC. Such high levels interfere with attention to detail, 

judgment, and concentration. Thus, the high level of delta 9 THC was a significant 

contributing factor to the ‘Misjudgment of hazardous situation’ with electrocution 

and death of Mr. Werbianskyj. 

With respect to the second question, Dr. Manion opined: 

Yes a person not under the influence of high levels of delta 9 THC would not have 

touched the hot bare conductor wire touching the metal part of the light plug. An 

individual not under the influence of delta 9 THC would have taken precautions to 

not touch the hot bare conductor wire but instead would have insulated the hot bare 

conductor wire to prevent accidental electrocution. 

(DE 36-15, p. 9). 

 On September 19, 2014, after receiving Dr. Manion’s second letter, Zurich notified 

Plaintiff by letter that her claim under the Policies was denied. (DE 36-16). As part of that letter, 

Zurich identified the relevant policy provisions and noted the documents reviewed regarding the 

incident, particularly the toxicology report. The letter further summarized Dr. Manion’s 

conclusions and informed Plaintiff that Zurich had concluded that “as death was not the result of 

an accidental bodily injury as defined in the Policies, and is also not covered under the Policy 

Exclusions of being under the influence of a controlled substance at the time of the event, we regret 

that we are unable to approve payment of the accidental death benefit under the Policies.” (Id. at 

p. 3). 

On November 4, 2014, Plaintiff notified Zurich, through counsel, that she was appealing 

the denial of benefits and requesting documents. (DE 36-17). Those documents were timely 
7 

provided. The appeal was forwarded to Zurich’s ERISA Appeals Committee (“the Committee”) 

for review. Plaintiff did not submit anything to Zurich between November 5, 2014 and January 6, 

2015. On January 6, 2015, the Committee notified Plaintiff that “[f]ollowing our review of the 

claim file and the appeal letter, the Committee affirms the denial of the claim for the reasons set 

forth in the Zurich letter of 9/19/14 as well as the reasons set forth in this letter.” (DE 36-19, p. 

1). The Committee letter again recited the Policy provisions relied upon by Zurich to deny the 

claim and, with respect to the factual scenario, it stated: 

Following the ERISA Committee’s review of the appeal and our claim file, the 

ERISA Committee finds that Mark Werbianskyj’s death claim is not covered under 

the Policy due to the definitions and exclusions included above and as stated in our 

original denial letter. In response to your appeal letter, I point out that the definition 

of Covered Injury indicates that the injury must be caused by accidental means 

which is independent of all other causes and results from a [C]overed [A]ccident. 

The evidence in this case, which includes the toxicology report and the independent 

examiner’s report, indicates that the use of cannabinoids/THC prior to the accident 

was a significant contributing cause to the accident. In addition, the cited 

exclusions apply to the claim. 

(Id. at p. 3). Subsequently on February 23, 2015, Plaintiff filed the present lawsuit. 

DISCUSSION 

This action arises under the Employee Retirement Income Security Act of 1974 

(“ERISA”), 29 U.S.C. §1001. “ERISA was enacted 'to promote the interests of employees and 

their beneficiaries in employee benefit plans,' and 'to protect contractually defined benefits.”' 

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989) (internal citations omitted). 

ERISA “permits a person denied benefits under an employee benefit plan to challenge that denial 

in federal court.” Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). ERISA's civilenforcement provision allows a claimant “to recover benefits due to him under the terms of his 

plan [and] to enforce his rights under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B)). 
8 

The Supreme Court announced the general rule in Firestone that “[a] denial of benefits 

challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives 

the administrator or fiduciary discretionary authority to determine eligibility for benefits or to 

construe the terms of the plan.” 489 U.S. at 115. If the benefit plan contains a discretionary clause, 

then the denial of benefits is to be reviewed under an arbitrary and capricious standard. Metro. Life 

Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008) (citing Firestone, 489 U.S. at 111, 115). In this case 

the parties agree that the Policies contain such a provision and thus, the appropriate standard of 

review is a deferential one rather than de novo.

 Where the arbitrary and capricious standard of review applies, the Court’s review is 

limited to the administrative record. Perlman v. Swiss Bank Corp. Comprehensive Disability Prot. 

Plan, 195 F.3d 975, 982 (7th Cir. 1999) (“...judicial review is limited to the evidence that was 

submitted in support of the application for benefits, and the mental processes of the plan's 

administrator are not legitimate grounds of inquiry any more than they would be if the 

decisionmaker were an administrative agency.”). Thus, “under the arbitrary and capricious 

standard, the reviewing court must ensure only that a plan administrator's decision ‘has rational 

support in the record.’ ” Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 360 (7th Cir. 2011) 

(quoting Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 812 (7th Cir. 2006)). In other words, 

“[w]hen determining whether a decision to deny benefits was arbitrary and capricious, ‘we look to 

whether specific reasons for denial [were] communicated to the claimant, whether claimant [was] 

afforded an opportunity for full and fair review by the administrator, and whether there is an 

absence of reasoning to support the plan's determination.’ ” Green v. Sun Life Assurance Co., ___ 

F. Supp. 3d ____, 14 C 4095, 2016 WL 861236, at *4 (N.D. Ill. Mar. 7, 2016) (quoting Leger v. 

Tribune Co. Long Term Disability Benefit Plan, 557 F.3d 823, 832–33 (7th Cir. 2009)). “Put 
9 

simply, an administrator's decision will not be overturned unless it is ‘downright unreasonable.’ ” 

Edwards, 639 F.3d at 360 (quoting Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 576 (7th 

Cir. 2006); Sisto v. Ameritech Sickness & Accident Disability Benefit Plan, 429 F.3d 698, 70 (7th 

Cir. 2005)). “Although our review is highly deferential, it ‘is not a rubber stamp.’ ” Cerentano v. 

UMWA Health & Ret. Funds, 735 F.3d 976, 981 (7th Cir. 2013) (quoting Holstrom v. Metro Life 

Ins. Co., 615 F.3d 758, 766 (7th Cir. 2010)); see also Edwards, 639 F.3d at 360; Hackett v. Xerox 

Corp. Long-Term Disability Income Plan, 315 F.3d 771, 774 (7th Cir. 2003).4

The Court’s analysis begins with a recitation of the reasons provided for denying Plaintiff’s 

request for benefits. Zurich maintains two reasons for its claim denial: first, it asserts that Mr. 

Werbianskyj’s death was not “Accidental Bodily Injury” or a “Covered Injury” as defined in the 

Policies since it was influenced by the THC in Mr. Werbianskyj’s blood at the time of the event; 

and second, it asserts that a loss caused by or resulting from the insured “being under the influence 

of any prescription drug, narcotic, or hallucinogen, unless....prescribed by a physician and taken 

in accordance with the prescribed dosage” is specifically excluded under the Policies. 

Given these two rationales for denying benefits, Zurich asserts that the record clearly 

supports its decision to deny benefits given the results of the toxicology report and Dr. Manion’s 

opinions. It contends that the administrator gave the claim thorough review, utilized a deliberate, 

principled reasoning process, interpreted the Policies appropriately and made a rational conclusion 

                                                             4

An arbitrary and capricious standard should be utilized even when a conflict of interest exists. 

Metro Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). The Supreme Court has held that a conflict of interest 

exists for ERISA purposes where the plan administrator evaluates and pays benefit claims, even where the 

administrator is an insurance company and not the beneficiary's employer. Id. at 111. In determining 

whether the decision to deny benefits was arbitrary and capricious, Courts will weigh, as a factor, a potential 

conflict of interest. Id. at 117; Firestone, 489 U.S. at 115. Here it appears that the administrator is the same 

as the insurance carrier. Thus, to the extent a potential conflict of interest exists, the Court has considered 

that in the analysis. 
10 

supported by the facts in determining that the claim should be denied. Thus, it urges the Court to 

grant summary judgment in Zurich’s favor. 

In contrast, Plaintiff argues that Zurich’s determination that Mr. Werbianskyj’s death was 

not the result of an Accidental Bodily Injury was arbitrary and capricious as was its conclusion 

that the death was not covered under the Policies because of the exclusion for “being under the 

influence of a controlled substance.” With respect to the first determination, Plaintiff contends 

that the ordinary purchaser of an accidental death insurance policy would think that the 

unintentional and unexpected electrocution of her husband constitutes death by accident. As for 

the second determination, Plaintiff argues that Zurich’s conclusion is arbitrary and capricious 

because it is required to prove more than Werbianskyj was “under the influence” at the time of 

event. 

To sustain her position, Plaintiff cites Sellers v. Zurich Am. Ins. Co., 627 F.3d 627, 732 (7th

Cir. 2010) and Kovach v. Zurich Am. Ins. Co., 587 F.3d 323, 336 (6th Cir. 2009) wherein both the 

Seventh and Sixth Circuits concluded that the insurer’s interpretation of “accident” (which was 

not expressly defined in the policies) was arbitrary because the insurer did not define the term 

“accident” in the ordinary sense based upon a ‘person of average intelligence and experience’ in 

the decedent’s shoes.

The issue in Sellers involved a decedent who died from heart complications during a 

follow-up surgery to repair a broken wire set in place after the decedent was injured at work months 

early. The decedent’s widow sought accidental death benefits from the insurer due to the death 

claiming that the wire break constituted an accidental bodily injury. After the physician that 

installed the original wire represented to the insurer that the wire was “expected” to fail, the insurer 
11 

determined the death could not be deemed accidental under the policy. The policy, unlike the 

Policies here, did not define “accident” or “accidental.” (Id.).

In finding the insurer’s interpretation unreasonable the Court determined that the insurer 

failed to consider the event as it would be understood by a person of average intelligence and 

experience. That said, however, the Court ultimately sustained the insurer’s denial of benefits 

because of prior precedent that held “a policy of accidental insurance does not reach ... injuries 

resulting from medical treatment.” See Senkier v. Hartford Life & Acc. Ins. Co., 948 F.2d 1050 

(7th Cir. 1991). 

In Kovach, the insured was riding his motorcycle while intoxicated, ran a stop sign, and 

collided with another vehicle in the intersection. At the time of the accident his BAC tested .148%. 

He sustained severe injuries that led to the amputation of his left leg below the knee. Mr. Kovach 

was insured under an accidental death and dismemberment insurance policy provided by his wife's 

employer. He and his wife filed a claim with Zurich (coincidentally the same insurer as in the 

present case) for dismemberment benefits. Zurich denied the Kovachs' claim after determining that 

Mr. Kovach's injuries were the “reasonably foreseeable consequence of driving while highly 

intoxicated and under the influence of drugs” and therefore not covered as an “accidental” 

occurrence under the Plan. In examining the record, the Court noted: 

The facts surrounding Mr. Kovach's crash, however, are nowhere near as dramatic 

as those in Lennon.5 Besides driving while intoxicated—at a level less than half that 

                                                            

5 Lennon refers to Lennon v. Metropolitan Life Insurance Co., 504 F.3d 617 (6th Cir.2007). In that case 

the insured drove his car his car at a high rate of speed the wrong way down a one-way portion of a 

divided street, losing control of his vehicle. The car hit a curb, flew into the air, and slammed into a brick 

wall, killing Lennon. Lennon's BAC was later measured at .321, more than three times the legal limit in 

effect at the time (.10) and high enough to render him only semi-conscious. The insurer denied benefits 

under a personal accident insurance policy stating that “the act of driving impaired ... rendered the 

infliction of serious injury or death reasonably foreseeable and, hence, not accidental.” Id. at 620. The 

case spawned three separate opinions from the Sixth Circuit – a lead, a concurrence, and a dissent. The 

lead opinion determined that the insurer’s denial was not arbitrary and capricious and determined that in 
12 

of Lennon—the only other out-of-the-ordinary thing that Mr. Kovach did was run 

a stop sign, something done with unfortunate frequency by sober drivers. There is 

no indication in the record that Mr. Kovach was traveling at an abnormally high 

rate of speed or driving in an otherwise risky manner. 

587 F.3d at 331. The Court then determined that the insurer’s interpretation of the plan was 

arbitrary and capricious because it added an “eligibility requirement” to its interpretation of 

“accidental” by “excluding activities that render the risk of serious injury ‘reasonably 

foreseeable.’” Id. at 336. Instead, the Court noted: 

Zurich could have easily added an exclusion in the Plan for driving while 

intoxicated if it had wished to do so, but it did not. The sheer number of court cases 

nationwide involving disputes over claims by drunk drivers certainly would have 

put it on notice that it would likely face claims under its AD & D policies based on 

injuries sustained in alcohol-related collisions. 

Id. 

Zurich does not address the holdings in either Sellers or Kovach, instead focusing on the 

definitions in its Policies, the process it utilized to make its decision and the facts of this particular 

case. In any event, the court concludes that Plaintiff’s reliance on Sellers and Kovach ultimately 

does not improve her position based on the facts of this case. First, unlike here where the Policies 

expressly define the term “Accident,” the policies in Sellers and Kovach did not. See Am. 

Alternative Ins. Corp. v. Metro Paramedic Servs., Inc., ____ F.3d ___, No. 15-2310, 2016 WL 

3741947, at *4 (7th Cir. July 12, 2016) (when not specifically defined, “terms utilized in the policy 

are accorded their plain and ordinary meaning.”). 

Second, Zurich’s denial letter detailed all the policy definitions and provisions being relied 

upon and specifically outlined the reasons for the denial ultimately concluding that “death was not 

                                                            

cases where an insured’s behavior can be deemed grossly negligent a plan administrator could “treat such 

conduct as not accidental under a policy that only covers accidents.” Id. at 621.
13 

the result of an accidental bodily injury as defined in the Policies...” Unlike in Sellers and Kovach, 

Zurich did not contend that Mr. Werbianskyj’s electrocution did not constitute an “accident;” what 

it stated was that “the THC level was high enough to significantly impair the deceased and 

contribute to the events that led to his electrocution.” (DE 36-16. p. 2). The Policies define 

“Accident” as “a sudden, unexpected, specific and abrupt event ...” and “Covered Injury” as “an 

injury directly caused by accidental means which is independent of all other causes.”(emphasis 

added). After examining the record, which included Dr. Manion’s conclusions as well as the 

toxicology report, Zurich concluded that Mr. Werbianskyj’s THC level was a contributing cause 

of the accident thereby making the accident not a Covered Injury. 

In contrast to the cases cited by the Plaintiff, Zurich has set forth a number of cases and the 

Court has found some additional cases where Courts concluded that it is not arbitrary and 

capricious for an insurer to deny benefits where it determines that an insured’s level of intoxication 

or drug usage impaired the insured’s ability to avoid an accident. 

In Clark v. Life Ins. Co. of N. Am., 950 F. Supp. 2d 1348, 1350 (N.D. Ga. 2013), for 

instance, the decedent was riding his motorcycle on a highway in Boulder, Colorado, when he 

skidded off the road, was thrown from the motorcycle, and collided with a tree. Tragically, he died 

as a result of the injuries he sustained. The subsequent investigation showed that at the time of the 

accident the decedent was not wearing a helmet; he had a 0.176 *1350 gm/dL blood alcohol 

concentration (“BAC”); and he tested positive for marijuana. The investigation also showed that 

the decedent was riding downhill below the speed limit. He was approaching a curve on a dry, 

paved road when he appears to have braked hard and skidded twenty-six feet to the right, off the 

road. There were no adverse weather conditions at the time of the crash, and there were no other 

vehicles involved in the crash. There also were no defects or obstacles in the road. 
14 

The policy at issue provided that the insurer will “pay benefits for loss from bodily injuries: 

a) caused by an accident which happens while an insured is covered by this policy; and b) which, 

directly and from no other causes, result in a covered loss.” In denying the claim, the insurer stated 

that under the policy an accident was a “sudden, unforeseeable, external event” and that a loss that 

results from “an action whose outcome is reasonably foreseeable is not a Covered Accident as this 

policy defines it.” It went on to explain that “[s]erious injury and death ... are foreseeable outcomes 

of operating a motor vehicle while legally intoxicated.” Thus, the insurer determined that a loss 

“resulting from driving while under the influence of alcohol is not an unforeseeable Covered 

Accident.” That said, the insurer stated that if the insured could prove that the decedent’s death 

“did not result from driving under the influence of alcohol or THC [marijuana]” it would 

reconsider her claim. Based upon the record available to the insurer and the absence of conflicting 

evidence to the contrary, the Court concluded that the insurer acted reasonably and not arbitrary 

and capricious.

 As was the case in Clark, Zurich’s investigation determined that the THC level in Mr. 

Werbianskyj’s system was significant and contributed to his judgment which, in turn, caused him, 

an experienced maintenance man, to touch bare hot wires rather than insulate them. Plaintiff 

argues that Zurich did not provide sufficient evidence about how her husband’s THC level affected 

his ability to make sound judgments. But, looking at Dr. Manion’s two letters, communicated to 

Plaintiff at the time Zurich denied benefits, Dr. Manion, after fully reviewing the reports and 

records of numerous agencies, clearly articulates that an individual with the level of THC in his 

system that her husband did at the time of the electrocution “interfere with attention to detail, 

judgment and concentration.” He further concluded “a person not under the influence of high 

levels of delta 9 THC would not have touched the hot bare conductor wire touching the metal part 
15 

of the light plug” rather “an individual not under the influence ....would have taken precautions to 

not touch the bare conductor wire but instead would have insulated the hot bare conductor wire to 

prevent accidental electrocution.”

Moreover, the Plaintiff never presented any evidence to Zurich that the THC level found 

in the toxicology report could not have contributed to the cause of the electrocution. She did not 

even state in her appeal letter to Zurich that her spouse’s THC level was so low that it could not 

have impaired his judgment, thus contributing to the cause of his accident. Rather, she merely 

argues in her brief that the fact that THC was in his system is insufficient for Zurich to conclude 

that her husband was impaired at the time of death.6

 But, that is not what Zurich did here. Zurich 

had an independent medical reviewer who on two occasions reviewed the administrative record 

and determined that the level of THC in Mr. Werbianskyj’s system impaired his judgment and, 

absent that level of impairment, Mr. Werbianskyj would not have been electrocuted by touching 

bare wires. Given that she has the burden to show that the insurer acted unreasonably, just as in 

Clark, the Plaintiff has not met that burden here. 

Moreover, courts across the country have upheld plan administrators’ determinations that 

deaths are not “accidental” when the decedent is under the influence of drugs or alcohol at the time 

of an accident and no other apparent cause of the incident exist. Stamp v. Metropolitan Life Ins. 

Co., 531 F.3d 84 (1st Cir. 2008) (upholding administrator’s determination that the death of the 

insured was not accidental where had a BAC of .265% and drove his truck into a tree); Eckelberry 

v. Reliastar Life Ins. Co., 469 F.3d 340, 345 (4th Cir.2006) (upholding plan administrator’s 

                                                            

6

 Plaintiff makes the argument that Zurich’s denial letter refers to THC as a “controlled substance” and 

that term is not found in the Policy’s Intoxication Exclusion. Rather, the terms utilized in the exclusion 

are “prescription drug, narcotic, or hallucinogen.” She further contends that THC is not a “hallucinogen” 

or a “narcotic” and thus, the Policy exclusion does not apply. This argument is disingenuous given that 

both state and federal law classify THC as a “hallucinogen.” See Ind. Code §35-48-2-4(d)(31); 21 U.S.C. 

§1308.11. 
16 

decision where insured had 0.15 BAC, which was fifty percent higher than legal limit and noting 

that federal courts have with “nearly universal accord” upheld plan administrators’ determinations 

that “alcohol related injuries and deaths are not ‘accidental’ under insurance contracts governed 

by ERISA.”); see also, Lennon v. Metro. Life Ins. Co., 504 F.3d at 622–23; Cozzie v. Metro. Life 

Ins. Co., 140 F.3d 1104, 1110 (7th Cir.1998)(finding denial of accidental-death benefits reasonable 

where there were no witnesses to car crash and no apparent cause of crash other than insured's 

impaired condition); Weatherall v. Reliastar Life Ins. Co., 398 F.Supp.2d 918, 924 

(W.D.Wis.2005); Mullaney v. Aetna U.S. Healthcare, *90 103 F.Supp.2d 486, 494 (D.R.I.2000); 

Walker v. Metro. Life Ins. Co., 24 F.Supp.2d 775, 782 (E.D.Mich.1997); Schultz v. Metro. Life Ins. 

Co., 994 F.Supp. 1419, 1422 (M.D.Fla.1997); Nelson v. Sun Life Assurance Co., 962 F.Supp. 1010, 

1012 (W.D.Mich.1997); Miller v. Auto–Alliance Int'l, Inc., 953 F.Supp. 172, 176–77 

(E.D.Mich.1997); Cates v. Metro. Life Ins. Co., 14 F.Supp.2d 1024, 1027 (E.D.Tenn.1996). 

In this case, the record clearly supports the conclusion that Zurich considered the terms and 

conditions of its Policies, the entire administrative record before it and hired a forensic pathologist 

to aid in determining whether Mr. Werbianskyj’s death fell within the purview of the Policies. Dr. 

Manion reviewed the entire record and concluded that Mr. Werbianskyj’s use of THC contributed 

to his misjudgment when he touched hot bare wires. Plaintiff submitted no competing evidence 

and, in actuality, she submitted no evidence whatsoever to call into question the conclusions of 

Dr. Manion. Given this record, there is no question that Zurich acted reasonably in interpreting its 

Policies and denying benefits. Accordingly, Zurich’s Motion for Summary Judgment is 

GRANTED. 

CONCLUSION 
17 

Based on the foregoing, Zurich’s Motion for Summary Judgment [DE 35] is GRANTED. 

The Clerk is DIRECTED to enter judgment in favor of the Defendant. 

Entered: This 1st day of August, 2016 

 s/ William C. Lee 

 United States District Court