In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1448

AUDREY Y. SELLERS,

Plaintiff-Appellant,

v.

ZURICH AMERICAN INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 08 C 224—Lynn Adelman, Judge.

ARGUED SEPTEMBER 30, 2010—DECIDED DECEMBER 3, 2010

Before FLAUM, MANION, and TINDER, Circuit Judges.

FLAUM, Circuit Judge. On November 16, 2006,

Anthony Sellers had surgery to remove a broken wire

from his knee. Tragically, Mr. Sellers died nine days

later from an acute pulmonary embolism with infarct,

caused by his immobilization following the operation.

The wire that necessitated the November 16 surgery

had been inserted over a year earlier during a previous
2 No. 10-1448

operation to repair Mr. Sellers’s patella tendon, which

he tore while performing training exercises at work.

 At issue in this case, which arises under the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. §§ 1001 et seq., is whether Mr. Sellers’s death is

covered by the accidental death and dismemberment

(“AD&D”) insurance policy in his employer’s employee

welfare benefit plan. The AD&D policy covers accidental

deaths occurring within 365 days of the accident. Thus,

the question before us is whether Mr. Sellers’s death can

be traced to an accident that occurred within a year of

his death. Zurich American Insurance Company, which

issued the AD&D policy, concluded that it could not,

and the district court deferred to that determination.

For the following reasons, we affirm the district

court’s judgment.

I. Background

Mr. Sellers worked at Time Warner Cable

Company and participated in Time Warner’s ERISAgoverned employee welfare benefit plan, which included an AD&D policy. On September 15, 2005,

Mr. Sellers tore a tendon in his knee while performing

training exercises at work. Mr. Sellers underwent

surgery to repair the torn tendon on September 29, 2005.

His surgeon, Dr. Rosemary Schultz, inserted a metal wire

in Mr. Sellers’s knee to assist in the healing process.

Prior to the surgery, Dr. Schultz explained that she likely

would remove the wire four to six months after surgery.
No. 10-1448 3

On April 3, 2006, Mr. Sellers saw Dr. Schultz for a followup appointment. Because Mr. Sellers was not having

any knee pain at that time, Dr. Schultz decided not to

remove the wire until symptoms occurred. Mr. Sellers

saw Dr. Schultz for another office visit later

that spring, at which time he complained that his knee

was swelling. Dr. Schultz recommended that Mr. Sellers

undergo surgery to remove the wire after x-rays

revealed that it had broken into three pieces. On November 16, 2006, Mr. Sellers had surgery to remove the

broken wire. Dr. Schultz’s surgical notes stated that the

fact that the wire had broken was, “in many degrees, . . .

expected.” Nine days later, on November 25, 2006,

Mr. Sellers died from what an autopsy determined to

be acute pulmonary embolism with infarct, due to immobilization following the wire removal.

In March of 2007, Audrey Sellers, Mr. Sellers’s widow,

submitted a claim for benefits under the AD&D policy to

Zurich, the Plan administrator. The accidental death

provisions of the policy provide that benefits are due

“[i]f injury to a Covered Person results in Loss of Life . . .

within 365 days of the accident.” The policy defines

“injury” as “an accidental bodily injury which is a

direct result, independent of all other causes of a hazard

set forth in the ‘Description of Hazards.’ ” The policy

does not define “accident,” or “accidental.” Instead, it

grants Zurich “discretionary authority to determine

eligibility for benefits and to construe the terms of the

plan.” Expressly excluded from coverage under the

policy are deaths caused by “illness[,] . . . sickness,

disease, bodily infirmity or medical or surgical treatment
4 No. 10-1448

thereof, or bacterial or viral infection, regardless of

how contracted.” 

Zurich denied Mrs. Sellers’s claim. To the extent that

Mr. Sellers’s death could be traced to the September 15,

2005 knee injury, Zurich concluded that Mrs. Sellers

was not entitled to benefits because the accident occurred

more than 365 days before Mr. Sellers’s death. Zurich

rejected Mrs. Sellers’s position that the wire breakage

constituted an “accidental bodily injury,” reasoning

that such medical device failures are not accidents

under the policy. 

After exhausting her internal appeals, Mrs. Sellers

brought suit against Zurich under ERISA, 29 U.S.C.

§ 1132(a)(1)(B), to recover death benefits. The parties

filed cross-motions for summary judgment. The district

court found that Zurich had failed to support its conclusion that the break in the wire was not an accident

under the policy with adequate findings and reasoning.

For that reason, the district court remanded the case to

Zurich for a new determination of Mrs. Sellers’s claim. 

Upon reconsideration, Zurich again denied Mrs.

Sellers’s claim, concluding that the wire breakage was

not an accidental injury under the policy. In reaching

that conclusion, Zurich defined the term “accident” as an

“unexpected event[ ] of a fortuitous nature.” Relying on

the statement in Dr. Schultz’s notes that “the wire has

broken, which in many degrees, is expected,” Zurich

concluded the wire breakage could not be considered

accidental because it was expected. Mrs. Sellers

appealed, relying, in part, on our decision in Senkier v.
No. 10-1448 5

Hartford Life & Acc. Ins. Co., 948 F.2d 1050 (7th Cir. 1991).

Mrs. Sellers argued that, under Senkier, if a patient dies

as a result of surgery that is necessitated by an accident,

their death is accidental. Mrs. Sellers contended that

Mr. Sellers underwent the November 2006 surgery

because of the wire break—which she argued was an

accident—and thus his death should be deemed accidental. Zurich responded by maintaining that the wire break

was not an accident.

After Zurich’s second denial of Mrs. Sellers’s claim,

the parties again filed cross-motions for summary judgment in the district court. In an order dated February 19,

2010, the district court granted Zurich’s motion for summary judgment. Applying an arbitrary and capricious

standard of review, the district court concluded that

Zurich’s decision denying Mrs. Sellers a benefit because

the wire break was expected was reasonable. Mrs. Sellers

timely appealed.

II. Discussion

We review a district court’s decision on cross-motions

for summary judgment without deference, construing

all inferences in favor of the party against whom the

motion under consideration is made. Tegtmeier v.

Midwest Operating Eng’rs Pension Trust Fund, 390 F.3d

1040, 1045 (7th Cir. 2004). Summary judgment is proper

when there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby Inc.,

477 U.S. 242, 255 (1986). 
6 No. 10-1448

In the context of a denial of benefits under ERISA, the

proper standard of review turns on two factors:

(1) whether the plan gives the plan administrator discretion to construe policy terms, and (2) the basis for

the decision to deny coverage. Where the plan gives the

plan administrator discretion to construe policy terms,

and the decision to deny coverage is based on an interpretation of the plan, we apply an arbitrary and

capricious standard of review. See Hess v. Reg-Ellen

Machine Tool Corp., 423 F.3d 653, 658 (7th Cir. 2005).

Where either the plan grants no such discretion, or the

denial of benefits determination is based on an interpretation of law, we apply a de novo standard of review.

See id.; Meyer v. Duluth Bldg. Trades Welfare Fund, 299

F.3d 686, 689 (8th Cir. 2002) (“where a plan’s decision

to deny benefits is based on its construction of existing

law, the plan’s interpretation of a controlling principle

of law is reviewed de novo”); Penn v. Howe-Baker Engrs., Inc.,

898 F.2d 1096, 1100 (5th Cir. 1990) (“in contrast to the

great deference we grant the Committee’s interpretations

of the Plan, which involve contract interpretation, we

accord no deference to the Committee’s conclusions

as to the controlling law, which involve statutory interpretation”).

It is undisputed that the Plan gives Zurich discretion

to construe policy terms and to determine eligibility for

benefits. Therefore, the proper standard of review

depends on the basis for Zurich’s denial of Mrs. Sellers’s

claim. As noted above, Zurich based its denial of benefits

decision on its construction of the Plan term “accident.”

That justification is subject to review under an arbitrary
No. 10-1448 7

and capricious standard. In denying Mrs. Sellers’s claim,

Zurich also rejected her position that Senkier compelled

the conclusion that Mr. Sellers’s death was accidental.

We review Zurich’s reading of Senkier de novo.

We begin with Zurich’s conclusion that the wire

break was not an accident under the policy because

Mr. Sellers’s doctor expected it to occur. The question

before us is whether Zurich’s interpretation of the term

“accident,” as used in the Plan, has “rational support in

the record.” Davis v. Unum Life Ins. Co. of Am., 444 F.3d

569, 576 (7th Cir. 2006). Because the Plan is governed

by ERISA, federal common law principles of contract

interpretation apply. Swaback v. American Information

Technologies Corp., 103 F.3d 535, 540 (7th Cir. 1996). Those

principles require that Plan terms be interpreted in “an

ordinary and popular sense, as [they] would [be understood by] a person of average intelligence and experience.”

Cannon v. Wittek Co. Intern., 60 F.3d 1282, 1284 (7th Cir.

1995). Consistent with that rule, we have stated that the

construction of the term “accident” should be left to

“common understanding as revealed in common

speech.” Senkier, 948 F.2d at 1052. See also Cozzie v. Metropolitan Life Ins. Co., 140 F.3d 1104, 1110 (7th Cir. 1998)

(a result is accidental where “the insured did not believe

that the result would occur,” and that “estimation can

be considered reasonable”) (citing Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1088 (1st Cir. 1990));

Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 462-

63 (7th Cir. 1997) (in determining whether a certain

result is accidental—meaning unexpected or uninten-
8 No. 10-1448

tional—we consider the result from the point of view of

a reasonable person in the insured’s position).

In light of these principles, we conclude that

Zurich’s decision that the wire break was not an

accident because it was expected was not reasonable.

Zurich interpreted the term “accident” as an event that

Dr. Schultz, a medical professional, would consider to

be “unexpected” or “fortuitous.” Zurich’s construction

of “accident” as “unexpected” is not the problem; we

have found comparable interpretations to be reasonable. See Cozzie, 140 F.3d at 1109 (finding insurer’s interpretation of the term “accident” as an event that is not

“reasonably foreseeable” to be reasonable). It is Zurich’s

application of that definition—from the point of view of

a doctor, rather than “a person of average intelligence

and experience” in Mr. Sellers’s shoes—that was arbitrary. See Senkier, 948 F.2d at 1054 (the proper inquiry is whether “the average person would say that

the decedent had died in an accident” or not). By failing

to interpret the Plan as would a person of average intelligence and experience, Zurich acted arbitrarily and

capriciously. See Swaback, 103 F.3d at 540-42 (finding

that ERISA plan administrator acted arbitrarily and

capriciously where it deviated from the plan language

as it would be understood by a person of average intelligence and experience); Dabertin v. HCR Manor Care, Inc.,

373 F.3d 822, 829 (7th Cir. 2004) (ERISA plan administrator’s definition of plan term “defied common sense and

was not in accord with the ordinary and popular

meaning of the term, and therefore was arbitrary and

capricious”).
No. 10-1448 9

In denying Mrs. Sellers’s claim, Zurich both relied on Senkier 1

and concluded that the wire breakage was not an accidental

injury because it was an expected complication of medical

treatment. However, it is not clear that Zurich previously

linked the two, arguing, as it does now, that the wire breakage

was not an accident because it was an injury due to medical

treatment, which cannot be an accident under Senkier. To the

extent that Zurich is raising this argument for the first time,

we nevertheless will address it. “The matter of what questions

may be taken up and resolved for the first time on appeal is

one left primarily to the discretion of the courts of appeals, to

be exercised on the facts of individual cases.” Singleton v. Wulff,

428 U.S. 106, 121 (1976); see also Sprosty v. Buchler, 79 F.3d

635, 645-46 (7th Cir. 1996). We conclude that entertaining

Zurich’s argument is appropriate for a number of reasons.

First, Mrs. Sellers has relied on Senkier throughout this case,

including in her opening brief on appeal. Therefore, that Senkier

would be an issue before this Court comes as no surprise.

Second, the issue has been fully briefed, as Mrs. Sellers had

an opportunity to address Zurich’s interpretation of Senkier

in her reply brief. Third, because we are reviewing the issue

de novo, it is irrelevant that we have no district court or Plan

administrator decision to which to defer.

Unfortunately for Mrs. Sellers’s position, we nevertheless are compelled to affirm by our holding in Senkier.

Zurich argues that the wire breakage was a complication

of the original knee surgery, and thus, under Senkier,

cannot be deemed an accident. In Senkier, the insured 1

was admitted to the hospital because of complications

associated with Crohn’s disease. 948 F.2d at 1051. “A

catheter was inserted in a vein beneath [the insured’s]
10 No. 10-1448

clavicle for the purpose of administering nourishment

intravenously,” which is a standard treatment for

Crohn’s. Id. The insured died when the catheter became

detached and punctured her heart, an occurrence that is

considered a standard complication of the treatment. Id.

at 1051, 1053. We concluded that the insured’s death

was not covered by her ERISA-governed AD&D policy,

holding that “a policy of accident insurance does not

reach . . . injuries resulting from medical treatment.” Id. at

1051. Noting that any medical procedure involves “a risk

that the procedure will inflict an injury,” we reasoned that

while that such “injuries are accidental in the sense of

unintended and infrequent[,] . . . they are not ‘accidents’

as the term is used in insurance policies for accidental

injuries.” 948 F.2d at 1051-52. Rather, where an individual

dies as a result of “standard complications of [a]

standard medical treatment[ ]” for an illness, their death

is the result of the underlying illness for which they

were receiving treatment. Id. at 1053.

Both parties contend that, under Senkier, where an

individual dies because of complications associated with

medical treatment for an accident, that accident is the

cause of death. We agree. The reasoning set forth in

Senkier applies equally regardless of whether an individual is being treated for an accident or an illness when

a medical mishap leads to injury or death. In either

case, the cause of the injury or death is the underlying

reason for the treatment.

The parties’ dispute centers on whether the wire

break, assuming for the moment that it was the under-
No. 10-1448 11

Mrs. Sellers argues that the wire break should not be consid- 2

ered a complication of the original injury, because, by the time

the wire broke, Mr. Sellers’s knee had fully healed and the wire

no longer was treating that injury. But the wire would not have

been implanted in Mr. Sellers’s knee but for the September 2005

accidental knee injury. Therefore, the wire breaking—and the

ensuing second surgery—cannot logically be separated from the

initial operation.

lying reason for Mr. Sellers’s November 2006 surgery,

constituted an accidental bodily injury. Mrs. Sellers

contends that it did. While we are sympathetic to

Mrs. Sellers’s attempt to avoid the harsh impact of the

policy’s 365-day bar, Senkier requires us to disagree.

That the wire might break was a risk associated with

the original operation, as evidenced by the fact that

Dr. Schultz expected it to break. Therefore, to the extent

2

that the breaking of the wire was an injury, it was a

result of the first surgery. Under Senkier, such “injuries

resulting from medical treatment” are not accidents as

that term is used in AD&D policies. 948 F.2d at 1051-52.

Because the wire break is exactly the type of complication we discussed in Senkier, it cannot be characterized

as an accident. 

The discussion above indicates that, to the extent that

Mr. Sellers’s death can be traced to any accidental

injury, it is to the September 2005 injury. However,

because that injury predated his death by more than 365

days, Mrs. Sellers is not entitled to benefits under the

AD&D policy.
12 No. 10-1448

III. Conclusion

For the foregoing reasons, we AFFIRM the district

court’s judgment.

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