* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10945

Summary Calendar

NATALYA READ

Plaintiff-Appellant

v.

SUN LIFE ASSURANCE COMPANY OF CANADA

Defendant-Appellee

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 5:06-CV-258

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Natalya Read’s (Read) action against Sun Life Insurance Company seeks

accidental death and disability (AD&D) benefits under her husband’s employeewelfare-benefit plan. Applying ERISA, the district court denied Read’s requests

for discovery outside of the administrative record, and granted summary

judgment to Sun Life, holding: the plan administrator did not abuse its

discretion in denying Read’s claim. Read presents three issues.

United States Court of Appeals

Fifth Circuit

F I L E D

March 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-10945

2

In 2005, Robert Read (Mr. Read) died as a result of a one-vehicle accident.

The accident report indicated a blood specimen was taken from Mr. Read, but

the alcohol/drug result was “PENDING”. After the test was completed, a

supplemental report was completed, indicating Mr. Read had a blood-alcohol

concentration of .10 at the time of the accident. Texas law prohibits operating

a motor vehicle with a blood alcohol concentration of .08 or greater. Accordingly,

the supplemental report listed “Under Influence-Alcohol” as a factor and

condition causing the accident.

Prior to his death, Mr. Read had acquired a life insurance and AD&D

policy through his employer, Unit Corporation, designating his wife, Read, as the

beneficiary under both. The AD&D policy excluded coverage for, inter alia, selfinflicted injuries, injuries occurring while committing a criminal act, and injuries

occurring while operating a motor vehicle while intoxicated. 

After her husband’s death, Read submitted a claim for life insurance and

AD&D benefits. Sun Life paid life insurance benefits, but determined the abovementioned exclusions precluded coverage for AD&D due to Mr. Read’s driving

while intoxicated. Accordingly, Read’s AD&D claim was denied.

Read filed this action in Texas court for payment of death benefits; Sun

Life removed it to federal court, claiming ERISA preempts Read’s state-law

claim. In district court, Read made two separate written discovery requests to

Sun Life. 

In response to those requests, Sun Life produced the administrative record

relating to Read’s claim. It also submitted an affidavit stating the produced

record was the complete administrative record. For the portion of those requests

seeking discovery outside of that record, Sun Life moved for, and was granted,

an order denying discovery. 

Sun Life then moved for summary judgment. The court held: Sun Life’s

denial of AD&D benefits was not an abuse of discretion under ERISA. 
No. 07-10945

3

Read claims: the AD&D policy is not a “qualified plan” regulated by

ERISA; the district court abused its discretion by denying her motion to compel

discovery; and summary judgment was awarded improperly to Sun Life.

As a threshold matter, we must determine whether the employer’s AD&D

policy is a benefit plan regulated by ERISA. This issue of fact is reviewed for

clear error. E.g., McNeil v. Time Ins. Co., 205 F.3d 179, 189 (5th Cir. 2000). To

be ERISA-qualified, a plan must: (1) exist; (2) fall outside the Department of

Labor safe-harbor provision; and (3) satisfy the primary elements of an ERISA

“employee benefit plan”—thatis, establishment or maintenance by an employer

intending to benefit employees. E.g., Meredith v. Time Ins. Co., 980 F.2d 352,

355 (5th Cir. 1993).

Read maintains the policy is instead a “garden variety, group life

insurance policy purchased by Unit Corporation for its employees”. This intent

is obvious, Read asserts, from the statement on the first page of the policy,

stating it is subject to the laws of Oklahoma. The undisputed evidence in the

record establishes otherwise. The policy shows: the source of the funding is the

employer and policyholder, Unit Corporation; and, the purpose is to provide

insurance for its full-time employees. Additionally, the plan does not fall within

the Department of Labor safe-harbor provision because Unit Corporation was

obligated to pay premiums under the AD&D policy. See 29 C.F.R. § 2510.3-1(j)

(prohibiting, for purposes of safe-harbor, inter alia, contributions from being

made by an employer). Indeed, employees did not contribute. Therefore, ERISA

was correctly applied to Unit Corporation’s AD&D policy. 

Under ERISA, discovery is limited to review of the administrative record

that existed at the time of review by the plan administrator. See Estate of

Bratton v. Nat’l Union Fire Ins. Co., 215 F.3d 516, 521 (5th Cir. 2000). Limited

exceptions to that rule exist, e.g., for evidence involving interpretation of a plan

provision, or explaining medical terms. See Vega v. Nat’l Life Ins. Servs., Inc.,
No. 07-10945

4

188 F.3d 287, 299 (5th Cir. 1999) (en banc). The exceptions were neither

asserted by Read, nor applicable to the requested discovery. Sun Life produced

the entire administrative record, twice, and later certified its completeness by

affidavit.

For Read’s claim thatthe summary judgment was improper,the judgment

is reviewed de novo. E.g. Kennedy v. Plan Admin’r for Dupont Sav. & Inv. Plan,

497 F.3d 426, 428 (5th Cir. 2007), cert granted, No. 07-636, 2008 U. S. Lexis 1291

(19 Feb. 2008). Such judgment is appropriate when “there is no genuine issue

as to any material fact and . . . the movant is entitled to judgment as a matter

of law”. FED. R. CIV.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986). Where, as here, an ERISA plan administrator’s benefits decision is

discretionary, that decision is reviewed only for abuse of that discretion. See

Meditrust Fin. Servs. Corp. v. The Sterling Chems., Inc., 168 F.3d 211, 213 (5th

Cir. 1999). “[I]f the administrator’s decision on eligibility is supported by

substantial evidence and is not erroneous as a matter of law, it will be upheld”.

Barhan v. Ry-Ron Inc., 121 F.3d 198, 201 (5th Cir. 1997). 

Because Sun Life serves as both the insurer and the claims administrator,

it operates under a conflict of interest, because it“potentially benefits from every

denied claim”. Vega, 188 F.3d at 295. Therefore, a “sliding scale” standard of

review is applied. Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability

Plan, 493 F.3d 533, 538 (5th Cir. 2007). “The standard of review does not

change, i.e., it remains abuse of discretion; the existence of a conflict of interest

is simply a factor to be considered in determining whether the administrator

abused its discretion.” Id. (emphasis and citation omitted). 

Along this line, Read asserts that, because Sun Life both administers and

insures the plan, an apparent conflict of interest exists. “Even if a conflict of

interest exists under these facts, the district court detailed the appropriate

standard of review for such cases and nevertheless granted summary judgment
No. 07-10945

5

for [Sun Life], ruling that the [a]dministrator had not abused its discretion in

denying [Read’s] claim.” Wade, 493 F.3d at 538. Indeed, Read presents no

evidence, other than the potential for conflict, establishing an abuse of

discretion.

Essentially for the reasons stated by the district court, summary judgment

was proper. Summary-judgment evidence establishes the claims administrator’s

decision was supported by substantial evidence to allow a determination that the

AD&D claim should be denied. See Meditrust Fin. Servs. Corp., 168 F.3d at 214.

As noted, the accident report indicates Mr. Read’s blood was tested, and the test

revealed a blood alcohol concentration in excess of that allowed of motor vehicle

operators under Texas law. See TEX. PEN. CODE ANN. §§ 49.01(2)(B) and

49.04(a). 

AFFIRMED.