FILED

United States Court of Appeals

Tenth Circuit

September 25, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RODNEY MILLER,

Plaintiff-Appellant,

 v.

MONUMENTAL LIFE INSURANCE

COMPANY and NASRA TPA, Inc.

and its successor, HCC

ADMINISTRATORS INC. and/or

GALLAGHER BASSETT SERVICES,

INC.,

Defendants-Appellees.

No. 05-2247

Appeal from the United States District Court for the District of New Mexico

(D.C. No. 2:04-cv-970-JB)

James Rawley, Albuquerque, NM, for Plaintiff-Appellant.

Bernie E. Hauder, Adkerson, Hauder & Bezney, Dallas, TX (Bruce S. McDonald

and Lucinda Siembieda, Law Offices of Bruce S. McDonald, Albuquerque, NM,

with him on the briefs) for Defendants-Appellees.

Before HENRY, McWILLIAMS, and TYMKOVICH, Circuit Judges.

HENRY, Circuit Judge.
2

Rodney Miller filed suit in the United States District Court for the District

of New Mexico challenging Monumental Life Insurance’s (Monumental’s) denial

of a request for long-term disability benefits. The district court granted summary

judgment for Monumental. Because the Employment Retirement Income Security

Act (ERISA), 29 U.S.C. §§ 1001-1461, governs the terms of Monumental’s

master-group insurance policy, the district court’s jurisdiction arose under 28

U.S.C. § 1331. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse

and remand. 

I. BACKGROUND

In September of 1997, Rodney Miller was injured in an automobile accident

while working for Aycock Transportation, a Texas corporation. After receiving

24 months of Temporary Disability benefits from Monumental, Aycock’s provider

of a master-group policy (the Plan), Mr. Miller applied for the Plan’s Continuous

Total Disability Benefit (Continuous Benefit), a long-term disability payment. In

order to qualify for the Continuous Benefit, an applicant must be “Totally

Disabled,” which the Plan defines as “unable to perform every duty pertaining to

any occupation for which he is or may become qualified by education.” Aplt’s

App. at 37 (Monumental’s Master Policy, effectuated June 10, 1996). The Plan

also requires applicants to present proof of a Social Security Disability Award,

which the Plan defines as “Social Security disability benefits for which the

Insured Person has submitted a claim and [has] been approved for payment by the
 “[Quarters of Coverage] are used in determining insured status [under 1

Title II]. In general, you are credited with [Quarters of Coverage] based on the

wages you are paid and the self-employment income you derive during certain

periods.” 20 C.F.R. § 404.101(b) (2007). 

3

Social Security Administration.” Id.

Mr. Miller applied for disability benefits under Title II and Title XVI of the

Social Security Act, 42 U.S.C. § 401 et. seq. Although the Social Security

Administration (SSA) administers both programs, the Supreme Court has outlined

their distinctions: “Title II is an insurance program. Enacted in 1935, it provides

old-age, survivor and disability benefits to insured individuals irrespective of

financial need. Title XVI is a welfare program. Enacted in 1972, it provides

[Social Security Insurance] benefits to financially needy individuals who are

blind, or disabled regardless of their insured status.” Bowen v. Galbraith, 485

U.S. 74, 75 (1988) (citation omitted). 

The SSA denied Mr. Miller’s claim for Title II disability insurance benefits

because he had failed to accrue “sufficient quarters of coverage to confer

1

disability insured status.” Aplt’s App. at 93 (Social Security Administration

Office of Hearings and Appeals Decision, filed August 28, 2003) (Title II

Decision). Nevertheless, the SSA granted Mr. Miller’s claim for Title XVI

supplemental social security income benefits because the administrative law judge

(ALJ) determined that he met the regulatory standard for physical disability and

had basically no income. Mr. Miller sent Monumental notice of the SSA’s Title
4

XVI Decision, but Monumental denied payment on the grounds that it was not a

Social Security Disability Award. Mr. Miller brought suit challenging

Monumental’s conclusion. 

Because Monumental had not retained authority to interpret the Plan, the

district court reviewed Monumental’s denial of coverage de novo. Reasoning that

“there is little difference between New Mexico law and Texas law,” Miller v.

Monumental Life Ins. Co., 376 F. Supp. 2d 1238, 1248 (D. N.M. 2005), the

district court applied New Mexico law to interpret the term Social Security

Disability Award. The court granted Monumental’s motion for summary

judgment on the theory that the Plan unambiguously provided that a Title XVI

award was not a Social Security Disability Award. More specifically, the district

court found that the “phrase [Social Security Disability Award] has a technical

meaning that does not include [Social Security Income] payments” and refused to

“go beyond the technical meaning of Social Security Disability Award.” Id. at

1250. The court emphasized “that the language in each of these places means

what Monumental meant it to say when it wrote [the] definition.” Id. This appeal

followed.

II. DISCUSSION

 We begin by holding that the district court erred in interpreting the Plan

according to New Mexico law because ERISA pre-empts state rules of insurance

contract interpretation. See Blair v. Metro. Life Ins. Co., 974 F.2d 1219, 1221-22
5

(10th Cir. 1992) (applying federal common law to interpret an ERISA plan). 

Then, applying federal common law, we determine that the proper inquiry is not

what Monumental intended a term to signify; rather, we consider the “common

and ordinary meaning as a reasonable person in the position of the [plan]

participant . . . would have understood the words to mean.” Admin. Comm. of

Wal-Mart Assocs. Health & Welfare Plan v. Willard, 393 F.3d 1119, 1123 (10th

Cir. 2004) (internal quotation marks omitted). Employing this standard, we hold

that the Plan is ambiguous because a reasonable plan participant could easily

conclude that a Title XVI award coupled with a finding of physical disability

would constitute a Social Security Disability Award for the purposes of the

Continuous Benefit. We then apply the doctrine of contra proferentem, which

strictly construes ambiguities in insurance contracts against the drafter. 

A. ERISA PRE-EMPTION

We review de novo the question of what law governs our interpretation of

the Plan. Mowry v. United Parcel Serv., 415 F.3d 1149, 1152 (10th Cir. 2005). 

Although the district court applied New Mexico law to interpret the Plan, the

parties do not dispute that federal law governs our determination of whether the

Plan is ambiguous. We agree. 

Congress enacted ERISA to ensure national uniformity in fiduciary

standards for the administration of employee benefit plans. See Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 104 (1983). To that end, it included a broad provision
6

that “pre-empts all state laws insofar as they may now or hereafter relate to any

employee benefit plan.” Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329,

333 (2003) (internal quotation marks omitted). Nevertheless, even under this

expansive preemption scheme, “state ‘law[s] . . . which regulat[e] insurance’ . . .

are saved from pre-emption.” Id. (quoting 29 U.S.C. § 1144(b)(2)(A)). In Miller,

the Supreme Court held that “for a state law to be deemed a ‘law . . . which

regulates insurance’ under § 1144(b)(2)(A), it must satisfy two requirements. 

First, it must be specifically directed toward entities engaged in insurance. 

Second . . . the state law must substantially affect the risk pooling arrangement

between the insurer and the insured.” Id. at 341-42. 

Like the Seventh Circuit, “[w]e cannot imagine any rational basis for the

proposition that state rules of contract interpretation ‘regulate insurance’ within

the meaning of § 1144(b)(2).” Hammond v. Fid. & Guar. Life Ins. Co., 965 F.2d

428, 430 (7th Cir. 1992). In the context of the saving clause, the Miller Court

described an insurance regulation as a law that placed “conditions on the right to

engage in the business of insurance.” 538 U.S. at 338. Rules of contract

interpretation “force the insurer to bear the legal risks associated with unclear

policy language.” Hammond, 965 F.2d at 430. Shifting legal risk is, however, “a

far cry from . . . transferring or spreading a policyholder’s risk.” Id. (internal

quotation marks omitted). Thus, the rules of contract interpretation at issue do

not satisfy the first prong of the Miller inquiry. 
7

Our decision to apply federal common law is consistent with our precedent,

and that of the vast majority of other circuits. See Blair, 974 F.2d at 1222

(“MetLife urges us to apply federal common law, governed by principles of trust

law. We do so.”) (internal citation omitted); see also Thibodeaux v. Cont’l Cas.

Ins. Co., 138 F.3d 593, 596 (5th Cir. 1998); Hammond, 965 F.2d at 430; Brewer

v. Lincoln Nat’l Life Ins. Co., 921 F.2d 150, 153 (8th Cir. 1990); Evans v. Safeco

Life Ins. Co., 916 F.2d 1437, 1440-41 (9th Cir. 1990); McMahan v. New England

Mut. Life Ins. Co., 888 F.2d 426, 429-30 (6th Cir. 1989); Sampson v. Mut. Benefit

Life Ins. Co., 863 F.2d 108, 110 (1st Cir. 1988). 

B. AMBIGUITY

Having determined that state law is pre-empted, we now assess whether the

plan is ambiguous. 

1. Standard of Review

In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the

Supreme Court observed that ERISA imposes upon providers a fiduciary duty

similar to the one trustees owe trust beneficiaries. Id. at 110 (“ERISA’s

legislative history confirms that the Act’s fiduciary responsibility provisions . . . 

codify and make applicable to ERISA fiduciaries certain principles developed in

the evolution of the law of trusts.”) (internal quotation marks omitted). Just as a

trustee must conduct his dealings with a beneficiary with the utmost degree of

honesty and transparency, an ERISA provider is required to clearly delineate the
8

scope of its obligations. 

This fiduciary duty also enables ERISA providers to retain the authority to

interpret ambiguous provisions in a plan. When an ERISA provider retains this

authority in explicit terms, we employ a deferential standard of review. Id. at 111

(noting that “[t]rust principles make a deferential standard of review appropriate”

when an ERISA provider has explicitly retained the authority to interpret

ambiguous plan). In the instant case, however, Monumental did not reserve any

such powers of interpretation. Hence, we review the contract and Monumental’s

denial of benefits de novo. Id. at 115 (noting that where the benefit plan does not

give the administrator or another fiduciary discretion to determine eligibility or

construe the terms of a plan, “a denial of [ERISA] benefits . . . is to be reviewed

under a de novo standard”). 

“In interpreting an ERISA plan, [we] examine[] the plan documents as a

whole and, if unambiguous, construe[] them as a matter of law.” Willard, 393

F.3d at 1123. “Ambiguity exists where a plan provision is reasonably susceptible

to more than one meaning, or where there is uncertainty as to the meaning of the

term.” Id. In order to determine whether a plan is ambiguous, we consider the

“common and ordinary meaning as a reasonable person in the position of the

[plan] participant, not the actual participant, would have understood the words to

mean.” Id. Thus, we must determine whether a reasonable person in Mr. Miller’s

position would have believed that the Title XVI award combined with a finding of
9

physical disability would have satisfied the requirement that he receive a Social

Security Disability Award. 

2. The Plan is ambiguous 

The ERISA plan at issue is an “Occupational Accident Plan,” Aplt’s App.

at 35, meant to provide temporary or permanent disability payments for

employees who suffer debilitating on-the-job injuries. Id. at 40 (stating that the

Plan provides indemnity for an employee who sustains injuries “while performing

the duties of his regular occupation”). After “examin[ing] the plan documents as

a whole,” Willard, 393 F.3d at 1123, it is clear that the Plan’s requirement of a

Social Security Disability Award serves as a delegation of substantive disability

determinations to the SSA. The Plan mandates that a beneficiary be incapable of

engaging in productive labor. However, it provides no mechanism for assessing

his physical condition, other than whether he has received a Social Security

Disability Award. As evidenced by the prolonged litigation in this case, when it

comes to physical disability, Monumental is not simply willing to take a

beneficiary at his word. By requiring that a claimant obtain a Social Security

Disability Award, Monumental provides a reliable and uniform mechanism for

ensuring that those claiming disability benefits are in fact unable to engage in

productive labor. 

Monumental’s delegation suggests that a reasonable person could have

expected Mr. Miller’s Title XVI award and the SSA’s finding of disability to have
10

satisfied the Social Security Award requirement. The ALJ who ruled that Mr.

Miller met the Title XVI requirements for disability, found that Mr. Miller

suffered from “the following medically determinable severe impairments: chronic

back and neck pain associated with facet anthropathy with cervical and lumbar

radiculopathy, carpal tunnel syndrome, bipolar affective disorder and valvular

heart disease with valve replacement.” Aplt’s App. at 87 (Social Security

Administration Office of Hearings and Appeals Decision, filed March 30, 2001)

(Title XVI Decision). In light of his physical impairments, education, and job

skills, the SSA concluded that Mr. Miller was “unable to perform every duty

pertaining to any occupation for which he is or may become qualified by

education, training or experience . . . .” Id. at 88. This finding seems to satisfy

the Plan’s requirement that a recipient of Continuous Benefit be “unable to

perform the physical and mental requirements of any past relevant work.” Id. at

37. Given the similarity between the SSA ruling and the Plan’s requirements, Mr.

Miller could have reasonably expected that the Title XVI award would have

satisfied the Social Security Award prescription. 

An examination of the programs’ respective regulations strengthens our

conclusion that a reasonable plan participant could reasonably believe that either

a Title II or a Title XVI award was a Social Security Disability Award. To begin,

for the purposes of determining physical disability, there is virtually no

distinction between the programs. As the district court noted, “the definition for
11

‘total disability’ is the same under Title II and Title XVI.” Miller, 376 F. Supp.

2d at 1245. Both Title II and Title XVI use the same five-step evaluation

sequence to determine disability. 20 C.F.R. § 404.1520 (Title II), § 416.920

(Title XVI). In addition, both programs use the same Listing of Impairments, 20

C.F.R. § 404.1525 (Title II), § 416.925 (Title XVI), and employ identical

Medical-Vocational Guidelines. 20 C.F.R. § 404.1501(g)(6) (Title II), §

416.901(j)(6) (Title XVI). Finally, a decision from the SSA that a claimant is

disabled under either Title II or Title XVI results in a money award. 

In contrast to the Title XVI Decision, the ALJ’s findings in the Title II

proceeding bore no relation to Mr. Miller’s ability to engage in productive labor. 

In order to be eligible for Title II benefits, “an individual must be both insured for

disability benefits and disabled within the meaning of the Act.” See Harvell v.

Chater, 87 F.3d 371, 372 (9th Cir. 1996); see also 20 C.F.R. § 404.130. Title II

insurance operates somewhat like a typical insurance program in that only those

who have paid into the system are covered, and coverage depends upon whether a

taxpayer has accrued sufficient quarters of coverage. One may obtain quarters of

coverage by working qualified job and reporting a minimum level of income. See

Harvell, 87 F.3d at 373 (noting that an applicant was not covered for the purposes

of Title II because he had “worked in non-covered employment . . . and paid no

social security taxes during that period”); United States v. Smith, 294 F. Supp. 2d

920, 921 n.2 (E.D. Mich. 2003) (explaining that Title II eligibility depends upon
12

the “payment of social security taxes”). Because Mr. Miller had failed to file a

legitimate tax return since 1997, and perhaps none before that, the ALJ found that

the last day he could have been covered was December 31, 1996. Due to his

“lack of appropriate insured status,” Aplt’s App. at 92 (Title II Decision), he was

not eligible for benefits on September 15, 1997, the date when his disabling injury

occurred. Thus, the ruling was a result of Mr. Miller’s failure to file tax returns

and accrue “sufficient quarters of coverage to meet the criteria for disability

insured status . . . .” Id. at 91. 

Nevertheless, Monumental contends that the Plan unambiguously precludes

Mr. Miller’s recovery because a Title XVI award “is not a Social Security

Disability Award.” Aplt’s Br. at 18 (emphasis in original). Relying heavily on

the district court decision, Monumental avers,

[Title XVI] benefits are not disability benefits. [Title XVI] benefits are

supplemental income, which can be paid for a number of reasons that

people lose income, only one of which is a welfare program enacted to

provide benefits to financially needy individuals who are aged, blind,

or disabled regardless of their insured status. [Social Security

Disability] benefits, on the other hand, are awarded under Title II,

which is an “insurance program” that Congress enacted to provide oldage, survivor, and disability benefits to insured individuals irrespective

of financial need. 

Id. at 17-18 (quoting Miller, 376 F. Supp. 2d at 1250). This is essentially a

summary of one paragraph of Supreme Court dicta from Bowen, 485 U.S. at 75. 

Under the proper circumstances, this argument might be more persuasive. 

Here, the problem is that Monumental assumes Bowen’s dicta is dispositive when
13

in fact it is inapplicable. In Bowen, the Court was asked to determine, “whether,

under Title XVI of the Social Security Act, a district court has the authority to

order the Secretary of Health and Human Services to withhold a portion of

past-due supplemental security income benefits for the payment of attorney’s

fees.” Id. at 74. Here, we are not called upon to interpret the Social Security

Act; rather, we address the discrete question of whether the Title XVI award at

issue coupled with a finding of disability constituted a Social Security Disability

Award under the Plan. In order to make this determination, we look not to the

role each program plays in the grand scheme of Social Security entitlements, but

to this particular plan’s language and the SSA’s determinations regarding Mr.

Miller’s condition. 

Finally, Monumental emphasizes, and Mr. Miller does not contest, that the

Title XVI benefits, which are need-based, would cease once Monumental began

paying the Continuous Benefit because Mr. Miller would have too much income. 

However, he remains eligible for Title XVI benefits as long as Monumental

refuses to pay Continuous Benefit. Thus, like Orr, the bomber pilot in Joseph

Heller’s renowned novel, Mr. Miller appears to be trapped in a now-proverbial

“Catch-22.” Monumental correctly observes that this appears to be an “absurd

and unintended result,” lending legitimacy to their interpretation of the Plan. 

Aple’s Br. at 20. However, the question that confronts us is not whether their

interpretation is reasonable, but whether there is more than one reasonable
14

interpretation of the Plan. 

In sum, although Monumental’s interpretation seems reasonable in many

respects, because the SSA denied Title II benefits based on a rationale unrelated

to disability, and because the purpose of the Plan is to provide compensation for

debilitating injuries, it is also reasonable that a beneficiary in Mr. Miller’s

position could have expected the Title XVI award at issue to satisfy the Social

Security Disability Award requirement. Hence, we hold that the Plan is

ambiguous because the term “Social Security Award” “is reasonably susceptible

to more than one meaning.” Willard, 393 F.3d at 1123 (internal quotation

omitted). 

3. Extrinsic Evidence

Monumental argues that if the Plan’s language is ambiguous, this Court

should resort to extrinsic evidence to interpret the term Social Security Disability

Award. Where a plan’s language is ambiguous on its face, courts may “turn to

extrinsic evidence of parties’ intent to create vested insurance benefits.” Deboard

v. Sunshine Min. & Ref. Co., 208 F.3d 1228, 1241 (10th Cir. 2000). In Deboard,

for example, correspondence between the parties exposed the employer’s intent

“to create vested rights to lifetime health insurance coverage.” Id. 

By contrast, the record in this case reveals no extrinsic evidence that would

illuminate the parties’ intent. Because this case was disposed of at summary

judgment, the parties should have brought any extrinsic evidence to the district
15

court’s attention before the court considered the motion. In fact, at the district

court’s hearing on the summary judgment motion, the parties made clear that they

had no additional evidence to present. Aplt’s App. at 56-57, 82-83. Thus,

remand for findings on extrinsic evidence would be futile. Moreover,

Monumental failed to raise this argument below. Because Monumental has given

no reason why we should depart from “the general rule that a federal appellate

court does not consider an issue not passed upon below,” Walker v. Mather, 959

F.2d 894, 896 (10th Cir. 1992) (internal quotation marks omitted), we deem the

extrinsic evidence argument waived.

C. INTERPRETING THE AMBIGUOUS TERM

Having decided that the Plan is ambiguous, and that we must use federal

common law to interpret it, we must now select a mode of contractual

interpretation. We hold that the ambiguous term must be construed against

Monumental in accordance with the doctrine of contra proferentem.

1. Contra Proferentem

Contra proferentem construes all ambiguities against the drafter. Todd v.

AIG Life Ins. Co., 475 F.3d 1448, 1451-52 (5th Cir. 1995). We have rejected

contra proferentem in cases where the plan administrator retains discretion and

where we review only to consider whether the administrator abused discretion.

See Kimber v. Thiokol Corp., 196 F.3d 1092, 1100 (10th Cir. 1999) (holding “that

when a plan administrator has discretion to interpret the plan and the standard of
16

review is arbitrary and capricious, the doctrine of contra proferentem is

inapplicable”). Nevertheless, we have reserved the question of whether this court

would apply contra proferentem in reviewing an ambiguous ERISA plan de novo. 

See Blair, 974 F.2d at 1222 (resolving ambiguities in favor of the drafter “without

resort to the contra proferentem rule, and without resolving whether that rule

should be applied to contracts governed by ERISA”). Today, we answer that

question in the affirmative.

The parties acknowledge that most circuits employ contra proferentem to

construe ambiguous language in contracts governed by ERISA where review is de

novo. Indeed, since the majority of courts would apply contra proferentem in a

case like this, employing the doctrine comports with the principle underlying

ERISA preemption, uniformity. See Perez v. Aetna Life Ins. Co., 150 F.3d 550,

557 n.7 (6th Cir. 1998); Todd, 47 F.3d at 1451-52; Lee v. Blue Cross/Blue Shield

of Alab., 10 F.3d 1547, 1551 (11th Cir. 1994) (“Having determined that the plan

is ambiguous, we hold that application of the rule of contra proferentem is

appropriate in resolving ambiguities in insurance contracts regulated by

ERISA.”); Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264, 268 (1st Cir. 1994);

Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1257-58 (3d Cir. 1993); Delk v.

Durham Life Ins. Co., 959 F.2d 104, 105-06 (8th Cir. 1992); Glocker v. W.R.

Grace & Co., 974 F.2d 540, 544 (4th Cir. 1992); Phillips v. Lincoln Nat’l Life

Ins. Co., 978 F.2d 302, 311 (7th Cir. 1992) (“The adoption by the district court of
17

the state law rule of contract interpretation contra proferentem as part of the

federal common law of ERISA was proper.”); Masella v. Blue Cross & Blue

Shield of Conn., Inc., 936 F.2d 98, 107 (2d Cir. 1991); Kunin v. Benefit Trust Life

Ins. Co., 910 F.2d 534, 540 (9th Cir. 1990). 

Strictly construing ambiguities against the drafter comports with our

precedent. Our court has never construed the ambiguities of an ERISA plan

against a beneficiary. See Deboard, 208 F.3d at 1243 (“Even assuming,

arguendo, the evidence was equivocal regarding the parties’ intent on this point,

we believe the ambiguity should have been construed in favor of plaintiffs.”);

Chiles v. Ceridian Corp., 95 F.3d 1505, 1518 (10th Cir. 1996) (“Any burden of

uncertainty created by careless or inaccurate drafting . . . must be placed on those

who do the drafting, and who are most able to bear that burden . . . .”) (internal

quotation marks omitted); Blair, 974 F.2d at 1222 (“Having determined that the

policy is ambiguous we resolve that ambiguity in [the beneficiary’s] favor based

on the record in this case.”). Doing so would undermine the policies underlying

ERISA, which Congress enacted “to promote the interests of employees and their

beneficiaries in employee benefit plans and to protect contractually defined

benefits.” Firestone Tire & Rubber Co., 489 U.S. at 113 (internal quotation

marks omitted). ERISA also gives significant benefits to providers by

preempting many “state law causes of action . . . which threaten considerably

greater liability than that allowed by ERISA.” Chiles, 95 F.3d at 1518 (internal
18

quotation marks omitted). In light of the Act’s balancing of interests, “[a]ccuracy

[in drafting] is not a lot to ask. And it is especially not a lot to ask in return for

the protections afforded by ERISA’s preemption of state law causes of action.” 

Id. (internal quotation marks omitted). 

Failure to employ contra proferentem would “afford less protection to

employees and their beneficiaries than they enjoyed before ERISA was enacted, a

result that would be at odds with the congressional purposes of promoting the

interests of employees and beneficiaries and protecting contractually defined

benefits.” Masella, 936 F.2d 98 at 107 (internal quotation marks omitted). The

Ninth Circuit presented an illuminating explanation for applying the doctrine. 

Insurance policies are almost always drafted by specialists employed by

the insurer. In light of the drafters’ expertise and experience, the

insurer should be expected to set forth any limitations on its liability

clearly enough for a common layperson to understand; if it fails to do

this, it should not be allowed to take advantage of the very ambiguities

that it could have prevented with greater diligence. Moreover, once the

policy language has been drafted, it is not usually subject to amendment

by the insured, even if he sees ambiguity; an insurer’s practice of

forcing the insured to guess and hope regarding the scope of coverage

requires that any doubts be resolved in favor of the party who has been

placed in such a predicament.

Kunin, 910 F.2d at 540. Strictly construing ambiguous terms presents ERISA

providers with a clear alternative: draft plans that reasonable people can

understand or pay for ambiguity. 

Confronted with ambiguous language under a de novo standard of review

and applying contra proferentem, we construe the Plan’s terms in favor of Mr.
19

Miller and hold that his Title XVI award coupled with a finding of disability

satisfied the Social Security Disability Award requirement.

2. Sole Causation

We note that Monumental also moved for summary judgment on the

grounds that Mr. Miller’s accident was not the “sole cause” of his disability. 

Aplt’s Supp. App. at 5 (Defendant’s Motion for Summary Judgment, filed May 5,

2006). Because the district court did not address this issue, we must remand for

further proceedings. 

III. CONCLUSION

We therefore REVERSE and REMAND for proceedings consistent with this

opinion.