*

Lay, Bright, Wollman, Murphy, Bye, Melloy, Smith, and Benton, Circuit

Judges, join this opinion in its entirety. Riley, Circuit Judge, joins Parts II, III.A, and

III.C of this opinion.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3934

___________

Alane King, as Conservator and *

Natural Parent of Amber Lynn Schanus, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota. 

Hartford Life and Accident Insurance * 

Company, *

*

Appellee. * 

___________

Submitted: September 15, 2004

Filed: July 22, 2005

___________

Before LOKEN, Chief Judge, LAY, BRIGHT, WOLLMAN, MORRIS SHEPPARD

ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON,

GRUENDER, and BENTON, Circuit Judges.

___________

COLLOTON, Circuit Judge.*

This appeal involves the review of a decision by Hartford Life and Accident

Insurance Company (“Hartford”) to deny a claim for benefits under an employee
-2-

benefit plan governed by the Employee Retirement Income and Security Act

(“ERISA”), 29 U.S.C. §§ 1001-1461. We reverse the decision of the district court

granting summary judgment in favor of Hartford, and remand the case to the district

court with directions that it be returned to the administrator for further consideration.

I.

Hartford issued a group insurance policy to Prairie Island Indian Community

d/b/a Treasure Island Resort and Casino in Minnesota. As part of its employee

benefit plan, Treasure Island provided its employees with life insurance benefits and

accidental death benefits under the Hartford policy. Martin Schanus, an employee of

Treasure Island, died in a motorcycle crash in June 2000, and this dispute involves

whether his designated beneficiary is entitled to an accidental death benefit. The

beneficiary is Schanus’s daughter, Amber Lynn Schanus, and this action was brought

by her mother, Alane King, as conservator for Amber Lynn.

Schanus was killed after the motorcycle he was operating veered off a road and

struck a fence. Schanus was ejected from the motorcycle and suffered fatal head

injuries. Blood tests taken after the accident showed that Schanus was legally

intoxicated at the time of the crash (with a blood-alcohol level of 0.19), and his death

certificate listed “acute alcohol intoxication” as a significant condition contributing

to death.

Hartford denied a claim for an accidental death benefit, which would have

doubled the life insurance benefit paid to Amber Lynn, on the ground that Schanus’s

death was not the result of an “accidental bodily injury” within the meaning of the

policy. Alternatively, Hartford asserted that the claim fell within a policy exclusion

for losses caused by an “intentionally self-inflicted injury, suicide, or suicide attempt,

whether sane or insane.” King then brought an action in Minnesota state district

court, alleging that Hartford’s denial of the accidental death benefit was “arbitrary,
1

Hartford did object to two exhibits proffered by King, but did not complain

about the introduction of statistical evidence concerning the frequency of injuries and

deaths from drunk driving. See Reply Mem. in Supp. of Def.’s Mot. for Summ. J. (R.

Doc. 14 at 2).

-3-

capricious, and not a fair or logical reading of the policy language.” Hartford

removed the action to the United States District Court for the District of Minnesota

because the claim arises under ERISA. See Metro. Life Ins. Co. v. Taylor, 481 U.S.

58, 67 (1987). 

In the district court, despite the general rule that a challenge to the decision of

a benefits administrator under ERISA should be decided based on the evidence

presented to the administrator, see, e.g., Short v. Central States, Southeast and

Southwest Areas Pension Fund, 729 F.2d 567, 571 (8th Cir. 1984), King presented

new evidence in support of the claim for benefits, and Hartford did not object to this

unusual procedure.1

 With the record so developed, the parties agreed that the facts

were undisputed and filed cross-motions for summary judgment. 

Hartford defended its decision that Schanus’s death did not result from an

“accidental bodily injury” by invoking the definition of “accident” set forth in

Wickman v. Northwestern National Insurance Co., 908 F.2d 1077 (1st Cir. 1990).

The Wickman decision excluded from the scope of “accident” those cases in which

“a reasonable person . . . would have viewed the injury as highly likely to occur as a

result of the insured’s intentional conduct.” Id. at 1088. Applying Wickman, the

district court concluded that “neither Hartford’s definition of its plan terms nor its

application of those terms to the facts can be considered either arbitrary or

capricious,” (Hr’g Tr. at 23), and it granted summary judgment in favor of Hartford.

The court, however, expressed “no hesitation whatsoever in indicating that this is an

extraordinarily hard rule of law,” and remarked that “[i]t would be very pleasing to

this court were the court of appeals to take a very careful look at this.” (Id. at 26).
-4-

On appeal, a panel of this court reversed the grant of summary judgment in

favor of Hartford and remanded the case for further proceedings. King v. Hartford

Life and Accident Ins. Co., 357 F.3d 840 (8th Cir. 2004). The panel adopted the

opinion in Wickman as the applicable test for determining whether Schanus died as

a result of accidental bodily injury, and then evaluated whether Schanus’s death was

“highly likely to occur” as a result of his drunk driving. Relying on statistical

evidence that drunk driving deaths constitute less than one percent of the number of

people arrested for drunk driving, the panel concluded that such “long-shot chances”

of death by drunk driving failed to satisfy the Wickman test. Id. at 844. We

subsequently granted rehearing en banc and vacated the panel’s opinion.

Having considered the matter en banc, we now reverse the grant of summary

judgment in favor of Hartford, but we do so on a narrower ground than that

articulated by the panel. For the reasons detailed below, we conclude that Hartford’s

litigating position concerning the proper interpretation of “accidental bodily injury”

is fundamentally inconsistent with its stated basis for denying the claim in 2001

during the administrative process. Under these circumstances, we hold that the

administrator’s decision cannot be sustained, and the appropriate remedy is to remand

the case to the district court, with directions to return the case to the administrator for

application of the standard that Hartford now says should govern the claim.

II.

Several basic principles govern our review of challenges to the decision of an

plan administrator to deny a claim for benefits under a plan governed by ERISA.

Congress enacted the statute with “expectations that a federal common law of rights

and obligations under ERISA-regulated plans would develop.” Pilot Life v. Dedeaux,

481 U.S. 41, 56 (1987). As distinguished from the “brooding omnipresence in the

sky” that was federal common law prior to Erie R. Co. v. Tompkins, 304 U.S. 64

(1938), see Southern Pac. R. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J.,
-5-

dissenting), Congress intended as a matter of positive law under ERISA that “a body

of Federal substantive law will be developed by the courts to deal with issues

involving rights and obligations under private welfare and pension plans.” Franchise

Tax Bd. v. Const. Laborers Vacation Trust, 463 U.S. 1, 24 n.26 (1983) (quoting 120

Cong. Rec. 29,942 (1974) (remarks of Sen. Javits)). 

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

Court took a major step in developing this “federal common law” of ERISA by

explaining the appropriate standard of review for actions brought under 29 U.S.C.

§ 1132(a) to recover benefits allegedly due to a participant or beneficiary under an

ERISA-regulated plan. The Court in Bruch concluded that principles of trust law

should guide the determination of a standard of review. Under these established

principles, unless a benefit plan gives the plan administrator power to construe

disputed or doubtful terms, or provides that eligibility determinations are to be given

deference, judicial review of the administrator’s decision is de novo. Id. at 115. In

such a case, a federal court may apply other aspects of the federal common law

developed under ERISA to construe disputed terms in a plan, e.g., Brewer v. Lincoln

National Life Insurance Co., 921 F.2d 150, 153-54 (8th Cir. 1990), and, if there is

good cause to do so, the court may allow parties to introduce evidence beyond the

materials presented to the administrator. Donatelli v. Home Ins. Co., 992 F.2d 763,

765 (8th Cir. 1993); Weber v. St. Louis Univ., 6 F.3d 558, 560-61 (8th Cir. 1993). 

Where a plan gives the administrator discretionary power to construe uncertain

terms or to make eligibility determinations, however, the landscape is much different.

In those circumstances, the administrator’s decision is reviewed only for “abuse . . .

of his discretion,” Bruch, 489 U.S. at 111 (quoting Restatement (Second) of Trusts

§ 187 (1959)), and the administrator’s interpretation of uncertain terms in a plan “will

not be disturbed if reasonable.” Id. In an effort to give content to the requirement of

“reasonable” interpretation by plan administrators, our court has catalogued several

factors to be considered in the analysis. These include “whether their interpretation
-6-

is consistent with the goals of the Plan, whether their interpretation renders any

language of the Plan meaningless or internally inconsistent, whether their

interpretation conflicts with the substantive or procedural requirements of the ERISA

statute, whether they have interpreted the words at issue consistently, and whether

their interpretation is contrary to the clear language of the Plan.” Finley v. Special

Agents Mut. Benefit Assoc., Inc., 957 F.2d 617, 621 (8th Cir. 1992) (citing de Nobel

v. Vitro Corp., 885 F.2d 1180, 1188 (4th Cir. 1989)). These so-called “Finley

factors” inform our analysis, but “[t]he dispositive principle remains . . . that where

plan fiduciaries have offered a ‘reasonable interpretation’ of disputed provisions,

courts may not replace [it] with an interpretation of their own – and therefore cannot

disturb as an ‘abuse of discretion’ the challenged benefits determination.” De Nobel,

885 F.2d at 1188 (alteration in original) (internal quotes omitted). Thus, while a court

may develop the “federal common law” of ERISA to interpret a benefit plan in a case

governed by de novo review, an administrator with discretion under a plan to construe

uncertain terms is not bound by this same interpretation, so long as the administrator

adopts an interpretation that is “reasonable.” Cf. National Cable and Television Ass’n

v. Brand X Internet Serv., 2005 WL 1498860, at *12 (U.S. June 27, 2005) (holding

that de novo interpretation of ambiguous statute by court of appeals does not preclude

administrative agency from adopting a different “reasonable” interpretation under the

doctrine of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984)).

Review for abuse of discretion also ensures that an administrator’s decision is

supported by substantial evidence, that is, “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Donaho v. FMC Corp., 74

F.3d 894, 900 & n.10 (8th Cir. 1996) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)), abrogated on other grounds by Black & Decker Disability Plan v.

Nord, 538 U.S. 822 (2003). When reviewing a denial of benefits by an administrator

who has discretion under an ERISA-regulated plan, a reviewing court “must focus on

the evidence available to the plan administrators at the time of their decision and may
-7-

not admit new evidence or consider post hoc rationales.” Conley v. Pitney Bowes,

176 F.3d 1044, 1049 (8th Cir. 1999). Because ERISA requires employee benefit

plans to “provide adequate notice” to any participant or beneficiary whose claim is

denied, “setting forth the specific reasons for such denial” in a manner “calculated to

be understood by the participant,” 29 U.S.C. § 1133, we have held that plan trustees

must “briefly state the facts of the case and the rationale for their decision,” Brumm

v. Bert Bell NFL Retirement Plan, 995 F.2d 1433, 1436 (8th Cir. 1993) (internal

quotation omitted), and we have refused to allow claimants “to be sandbagged by

after-the-fact plan interpretations devised for purposes of litigation.” Marolt v.

Alliant Techsystems, Inc., 146 F.3d 617, 620 (8th Cir. 1998); see also Short, 729 F.2d

at 575. In sum, an administrator with discretion under a benefit plan must articulate

its reasons for denying benefits when it notifies the participant or beneficiary of an

adverse decision, and the decision must be supported by both a reasonable

interpretation of the plan and substantial evidence in the materials considered by the

administrator.

III.

A.

The benefit plan at issue in this case gives discretion to the administrator. A

general provision of the group life insurance policy, in explaining who interprets

terms and conditions in the policy, states that “[w]e have full discretion and authority

to determine eligibility for benefits and to construe and interpret all terms and

provisions of the Group Insurance Policy.” (Appellant’s App. at 58) (hereinafter

“App.”). The administrator’s decisions, therefore, are subject to review for abuse of

discretion under the Bruch framework. Our court, of course, reviews de novo the

district court’s decision to grant summary judgment.
2

The other exclusions are (1) sickness, (2) disease, (3) any medical treatment

for sickness or disease, (4) any infection, except a pus-forming infection of an

accidental cut or wound; (5) war or any act of war, whether war is declared or not,

and (7) taking drugs, sedatives, narcotics, barbiturates, amphetamines or

hallucinogens unless prescribed for or administered to you by a licensed physician.

-8-

In describing the accidental death benefit sought by Amber Lynn Schanus, the

policy explains that:

The Hartford will pay [the accidental death benefit] if [the participant]

suffer[s] accidental bodily injury while [his] insurance is in force and:

(1) a Loss results directly from such injury, independent of all other

causes; and 

(2) such a Loss occurs within 90 days after the date of the accident

causing the injury.

(App. at 56) (emphasis added). The plan does not define the term “accidental.” It

then provides a list of exclusions for accidental death benefits, including that “[n]o

benefit will be paid for a loss caused or contributed to by . . . (6) any intentionally

self-inflicted injury, suicide, or suicide attempt, whether sane or insane.” (App. at

57).2

After Martin Schanus’s death, King presented proof of death and the necessary

claim forms to Hartford. On December 26, 2000, Hartford awarded a death benefit

of $42,916.04 to Amber Lynn, but denied her claim for an accidental death benefit.

Hartford’s initial denial letter stated that:

The information reviewed including the toxicology findings

demonstrates that by driving while intoxicated, Mr. Schanus voluntarily

exposed himself to an unnecessary danger which resulted in a fatal self
-9-

inflicted injury. The Black’s Law Dictionary, Sixth Edition, West

Publishing Company, 1990, defines Accidental as:

“Happening by chance, or unexpectedly; taking place not

according to usual course of things; casual; fortuitous.”

Given his blood alcohol level, his bodily injury can in no way be

considered unexpected, happening by chance or fortuitous. On the

contrary, it could be expected that if he drove his vehicle in such a

reckless manner and in an intoxicated condition, serious bodily injury

could result. As such, we have concluded that the insured did not suffer

an accidental bodily injury within the meaning of the policy.

Since it could be expected that if Mr. Schanus operated his vehicle

under these conditions that a serious bodily injury would occur and that

he voluntarily caused these conditions to exist, we have also concluded

that Mr. Schanus’ death was caused or contributed to by a self-inflicted

injury. Since his death was caused or contributed to by an injury

specifically excluded from coverage, no Group Accidental Death

benefits are payable.

(App. at 86-87). 

According to the plan, a beneficiary whose claim is denied initially may

“appeal to the Insurance Company for a full and fair review.” (App. 67). Hartford

then will respond with “a written decision” that “will include specific reasons for the

decision and specific references to the plan provision on which the decision is based.”

(Id.) King appealed Hartford’s initial denial of an accidental death benefit in a letter

dated February 21, 2001, arguing that Hartford’s denial was “unreasonable and not

supported by the evidence.” (App. at 90).

 On June 14, 2001, Hartford responded with a decision letter denying King’s

appeal and concluding that Schanus’s death “was not an accident.” (App. at 91). In

this written decision, Hartford explained that its letter dated December 26, 2000, (i.e.,
-10-

the initial denial letter) “lists the evidence contained in [Schanus’s] claim file,” and

informed King that “[o]ur decision to uphold the denial of his claim for benefits is

based upon that evidence and your letter dated 2/21/01.” (Id.)

In explaining its rationale for concluding that Schanus did not suffer

“accidental bodily injury” that would trigger the accidental death benefit, Hartford

wrote that “a reasonable person would have known that death or serious injury was

a reasonably foreseeable result of driving while intoxicated.” (App. at 92). The

decision further opined that “[a] death is not accidental when it is a foreseeable result

of the insured’s voluntary act of becoming intoxicated,” and concluded that Schanus’s

death “was not an accident.” (Id.)

Hartford’s decision cited, as “case law supporting this defense,” the opinion in

Weisenhorn v. Transamerica Occidental Life Insurance Co., 769 F. Supp. 302 (D.

Minn. 1991), which held that an insured who was killed in a drunk driving accident

could not recover an accidental death benefit where the policy said no benefits would

be paid if loss “results from” the insured’s “commission of . . . [a] felony.” Id. at 304.

The court in Weisenhorn reasoned that the insured’s felonious drunk driving had

caused the fatal accident and that “being killed while committing felonious drunk

driving is a foreseeable risk.” Id. at 306. The Hartford decision also cited as

“supporting” authority the case of Brewer v. Lincoln National Life Insurance Co., 921

F.2d 150, 153-54 (8th Cir. 1990), which held that an insurer properly denied health

insurance coverage under an exclusion for “mental illness.” The June 2001 decision

did not incorporate or otherwise mention the reasoning of Hartford’s initial denial

letter from December 2000, and it did not refer to the First Circuit’s decision in

Wickman defining the term “accidental.” Finally, Hartford’s decision letter in June

2001 stated that “[i]n some circuits the self-inflicted injury exclusion is also a

recognized defense,” and “we assert it as a defense in this case as well.” (App. at 92).
-11-

B.

As explained above, where a benefit plan gives the administrator discretion to

interpret uncertain terms in the plan, we typically begin our analysis by considering

whether the administrator’s interpretation of the terms is “reasonable.” In its final

decision on Amber Lynn’s claim, Hartford said that Martin Schanus did not suffer

“accidental bodily injury,” triggering the accidental death benefit, because “a

reasonable person would have known that death or serious injury was a reasonably

foreseeable result of driving while intoxicated,” and “[a] death is not accidental when

it is a foreseeable result of the insured’s voluntary act of becoming intoxicated.”

(App. at 92). Our normal approach, therefore, would be to consider whether it is

“reasonable” to construe the term “accidental” to exclude injuries and deaths that are

a “reasonably foreseeable” result of the insured’s conduct. 

This inquiry would present a debatable question. Some courts have accepted

as reasonable an interpretation that excludes “reasonably foreseeable” injuries from

the scope of “accidental” injuries, e.g., Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104,

1110 (7th Cir. 1998), and these decisions lend support to Hartford’s decision. If

“accidental” means “unexpected,” and if “reasonably foreseeable” is a reasonable

synonym for “expected,” then one might well conclude that the proffered standard

passes muster under the deferential ERISA standard of review. On the other hand,

a “reasonably foreseeable” standard is quite broad; if all “reasonably foreseeable”

injuries are excluded from coverage, then the definition of accident may frustrate the

legitimate expectations of plan participants, for insurance presumably is acquired to

protect against injuries that are in some sense foreseeable. If Hartford’s definition of

“accidental bodily injury” were so narrow that it could eliminate many injuries that

an average plan participant would expect to be covered based on the plain language

of the plan, then there would be a question whether it conflicts with the statutory

requirement that a plan be “written in a manner calculated to be understood by the

average plan participant.” 29 U.S.C. § 1022(a).
3

The dissent insists that the Wickman court did not adopt a specific definition

of accidental injury that calls for an evaluation whether a reasonable person would

have viewed the injury as highly likely to occur, and that Hartford did not endorse

such a definition in this litigation. Post at 28. We think the dissent’s reading is

impossible to square with Hartford’s quotation of Wickman’s statement that in the

objective analysis of the insured’s expectations, one must ask whether “a reasonable

person, with background and characteristic similar to the insured, would have viewed

the injury as highly likely to occur as a result of the insured’s intentional conduct,”

908 F.2d at 1088, Hartford’s observation that the First Circuit decided Wickman by

“applying this test,” and Hartford’s assertion that “the Wickman test” is the proper

-12-

We find it unnecessary and inappropriate to reach the issue in this case,

because Hartford has not defended its denial of Amber Lynn’s claim for an accidental

death benefit on the ground that Martin Schanus’s death was “reasonably

foreseeable.” Rather, Hartford consistently has maintained in litigation that the

proper definition of “accidental” in its policy is that set forth in the First Circuit’s

decision in Wickman, which held that there is no accident if “a reasonable person,

with background and characteristics similar to the insured, would have viewed the

injury as highly likely to occur as a result of the insured’s intentional conduct.” 908

F.2d at 1088 (emphasis added). Hartford argues that this Wickman standard is “a

direct descendant” of our court’s decision in City of Carter Lake v. Aetna Cas. & Sur.

Co., 604 F.2d 1052 (8th Cir. 1979), (Br. of Appellee at 10), which “reject[ed] the

argument that a result is expected as that term is used in insurance policies simply

because it was reasonably foreseeable,” and held that there was no “accident” under

a general liability insurance policy only “[i]f the insured knew or should have known

that there was a substantial probability that certain results would follow his acts or

omissions.” Id. at 1058-59 (emphases added). Carter Lake specifically distinguished

between standards of “reasonably foreseeable” and “substantial probability,” stating

that the latter requires not only that a reasonably prudent person would be alerted to

the possibility of results occurring, but that such a reasonable person would be

forewarned that the results are “highly likely to occur.” Id. at 1059 n.4; see also

Wickman, 908 F.2d at 1088 (citing Carter Lake).3
method of analysis in this case. (Br. of Appellee at 9-10). 

Nor do we agree that the Wickman court’s analysis is “devoid of any discussion

about whether a reasonable person in Mr. Wickman’s shoes would have viewed death

as ‘substantially’ or ‘highly’ likely to occur.” Post at 28. The heart of the First

Circuit’s analysis noted the magistrate judge’s conclusion that Wickman should have

known that death was “substantially likely to occur,” observed that “‘substantially

likely to occur’ is an equivalent, if not tougher, standard to ‘highly likely to occur,’”

and thus concluded that the magistrate “applied an acceptable legal standard.” Id. at

1089. Hartford itself defined the “second prong of the Wickman test” to mean

“whether a reasonable person would view the injury as ‘highly likely to occur,’” and

then urged this court to reject what Hartford characterized as a “strained

interpretation” of “highly likely to occur” adopted in West v. Aetna Life Ins. Co., 171

F. Supp.2d 856 (N.D. Iowa 2001). (Br. of Appellee at 30).

-13-

Hartford argues that its litigating position is not inconsistent with the rationale

for its decision on Amber Lynn’s claim, because although the decision denying the

her administrative appeal applied a “reasonably foreseeable” standard, the initial

denial letter cited Black’s Law Dictionary, which defined “accidental” as “happening

unexpectedly.” Hartford asserts that if the final decision and the initial denial letter

are read together, they show that Hartford applied the Wickman standard during the

administrative process.

We disagree with Hartford’s interpretation of the administrative decision. The

decision on Amber Lynn’s appeal clearly applied a “reasonably foreseeable” standard.

The decision letter cited two court decisions as “case law supporting” its rationale;

it did not cite Wickman, and neither cited case applied the Wickman rationale. The

initial denial letter, which Hartford suggests we should consider as further

explanation of its rationale, does not state that the administrator applied the Wickman

rationale and a standard of “substantial probability” or “highly likely to occur” in

denying the claim. The initial denial, invoking Black’s Law Dictionary, merely

concluded that Schanus’s death “could be expected,” which begs the question

whether “expected” means “reasonably foreseeable” or “highly likely.” Hartford
-14-

acknowledges that the Wickman court itself thought the term “unexpected” left “some

ambiguity with respect to the ‘level of expectation . . . necessary for an act to

constitute an accident,’” (Br. of Appellee at 15-16 (quoting Wickman, 908 F.2d at

1085)), and Wickman described “accident” and “unexpected” as “equally ambiguous

terms.” 908 F.2d at 1087. Thus, accepting Hartford’s invitation to read the two

letters together, the final decision makes clear that Hartford applied a standard that

excluded from the definition of “accidental” an injury or death that was “reasonably

foreseeable,” even if a reasonable person would not have viewed it as “highly likely

to occur.”

We thus conclude that this case falls in the category where an administrator

offers a post hoc rationale during litigation to justify a decision reached on different

grounds during the administrative process. Even assuming it is reasonable to

interpret the term “accidental” to exclude “reasonably foreseeable” injuries, Hartford

does not defend the administrator’s decision on that basis. We will not uphold

Hartford’s decision on a ground that is fundamentally inconsistent with its emphatic

position that Wickman sets forth the proper interpretation of the term “accidental” in

the Hartford insurance policy, and its assertions that “applying Wickman here

contributes to national uniformity and predictability of results, which in the future

will promote early resolution of similar disputes.” (Br. of Appellee at 11). 

Whether a reasonable person would have viewed Schanus’s injuries and death

as “highly likely to occur,” Wickman, 908 F.2d at 1088, was not part of the

administrator’s stated rationale for denying Amber Lynn’s claim. We do not know,

for example, whether the administrator interprets “highly likely” as used in Wickman

to mean “more likely than not,” some lesser probability that exceeds “reasonably

foreseeable” but falls short of a fifty-percent chance, cf. Carter Lake, 604 F.2d at

1059 n.4 (equating “substantial probability” with “highly likely to occur”), or

something else that does not depend at all on statistical probabilities. And the

administrator did not discuss whether evidence concerning how a reasonable person
-15-

would view the likelihood of Schanus’s death was sufficient to satisfy the Wickman

standard, however that might be precisely defined by Hartford. Without a stated

rationale from the administrator applying what Hartford now says is the correct legal

standard, we cannot determine whether a proffered interpretation of “accidental” is

reasonable, or whether there is substantial evidence to support a denial of benefits

under such an interpretation.

C.

Hartford argues alternatively that we should affirm on a ground not relied upon

by the district court, namely, that Martin Schanus’s injuries and death are ineligible

for coverage under a specific policy exclusion. It invokes an exclusion providing that

“[n]o benefit will be paid for a loss caused or contributed to by . . . (6) any

intentionally self-inflicted injury, suicide, or attempted suicide, whether sane or

insane.” (App. at 57). Hartford admits that Schanus did not intend to injure himself

by driving his motorcycle on the night of his death, but claims that Schanus’s alcohol

intoxication was itself an “intentionally self-inflicted injury” that “contributed to” his

injuries and death.

We reject this alternative argument because it is based on an unreasonable

interpretation of the plan, and because it represents another effort to uphold the

administrator’s decision with a post hoc rationale not expressed when benefits were

denied. The most natural reading of the exclusion for injuries contributed to by

“intentionally self-inflicted injury, suicide, or attempted suicide” does not include

injuries that were unintended by the participant, but which were contributed to by

alcohol intoxication. The Seventh Circuit seemed to think this self-evident when it

explained in a case involving death by drunk driving that the plan at issue “does not

specifically exclude from coverage the conduct at issue but does exclude other

conduct – notably suicide, attempted suicide and purposefully self-inflicted injury.”

Cozzie, 140 F.3d at 1111 (emphases added). One rarely thinks of a drunk driver who
-16-

arrives home safely as an “injured” party, and to define drinking to the point of

intoxication as an “intentionally self-inflicted injury, suicide, or attempted suicide”

is at least a “startling construction.” See Brumm, 995 F.2d at 1440.

But even if Hartford’s reading of “intentionally self-inflicted injury” might be

a reasonable interpretation of the language standing alone, cf. Nelson v. Sun Life

Assurance Co. of Canada, 962 F. Supp. 1010, 1013 (W.D. Mich. 1997), it is not

reasonable in the context of this policy, because it renders meaningless other

important policy language. See Finley, 957 F.2d at 621. The very next exclusion in

Hartford’s policy states that no benefit will be paid for a loss caused or contributed

to by “(7) taking drugs, sedatives, narcotics, barbiturates, amphetamines or

hallucinogens unless prescribed for or administered to you by a licensed physician.”

(App. at 57). If the exclusion for “intentionally self-inflicted injury” eliminated

coverage for unintended injuries caused or contributed to by intentionally ingesting

substances into the body, then there would be no reason for the seventh exclusion

regarding the taking of drugs and narcotics. Hartford’s interpretation would render

the latter exclusion meaningless, and we think it is therefore unreasonable. 

In any event, Hartford’s current position concerning the exclusion for

“intentionally self-inflicted injury” is another post hoc rationale that differs from the

stated basis for denying benefits. The decision on Amber Lynn’s appeal mentioned

the self-inflicted injury exclusion almost as an afterthought, and did not provide any

reasoning. (App. at 92). The initial denial letter, which Hartford says we should

consider to understand its reasoning, explained that “[t]he information reviewed

including the toxicology findings demonstrates that by driving while intoxicated, Mr.

Schanus voluntarily exposed himself to an unnecessary danger which resulted in a

fatal self inflicted injury.” (App. 86) (emphasis added). This rationale is inconsistent

with Hartford’s current position that alcohol intoxication was the “intentionally selfinflicted injury.” Schanus’s alcohol intoxication was not a fatal self-inflicted injury;

it is evident that when Hartford denied the claim, it was referring to Schanus’s head
-17-

injury as the “self-inflicted injury,” because the head injury – not the drinking – was

“fatal.” Accordingly, we reject Hartford’s argument that we should affirm the district

court’s grant of summary judgment on the alternative ground that Schanus’s alcohol

intoxication was an “intentionally self-inflicted injury” that contributed to his death.

D.

The question remains how to resolve this appeal. We think the posture of this

case is comparable to those in which the administrator of an ERISA-regulated plan

denies a claim for benefits based on an unreasonable interpretation of terms in the

plan. Here, by asserting that the Wickman test of “highly likely to occur,” rather than

a “reasonably foreseeable” standard, should govern whether Amber Lynn is entitled

to “accidental death benefits” under the plan, Hartford effectively concedes that it

applied the wrong definition of “accidental” in denying the claim. 

Under these circumstances, we believe the proper remedy is to return the case

to the administrator for reevaluation of the claim under what Hartford says is the

correct standard. The statute affords the courts a range of remedial powers under

ERISA, 29 U.S.C. § 1132(a), and returning the case to a plan administrator for further

consideration is often appropriate. E.g., Shelton v. Contigroup Companies, Inc., 285

F.3d 640, 644 (8th Cir. 2002); Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276,

1288 (10th Cir. 2002); Gallo v. Amoco Corp., 102 F.3d 918, 923 (7th Cir. 1996);

Miller v. United Welfare Fund, 72 F.3d 1066, 1073-74 (2d Cir. 1995). In particular,

when an administrator abandons in litigation its original basis for denying benefits,

the better course generally is to return the case to the administrator, rather than to

conduct de novo review under a plan interpretation offered for the first time in

litigation. See Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 392, 398 & n.11 (5th

Cir. 1998). For “[i]t is not the court’s function ab initio to apply the correct standard

to [the participant’s] claim. That function, under the Plan, is reserved to the Plan

administrator.” Saffle v. Sierra Pac. Power Co. Bargaining Unit Long Term
4

The dissent urges that even when a plan administrator abandons in litigation

its stated basis for denying benefits, the court should nonetheless consider whether

the abandoned rationale provides a sufficient basis to reject the beneficiary’s claim.

Post at 29. We think the better course in our adversarial system is for the court to

limit its consideration to grounds actually advanced before the court. If Hartford does

not wish to defend the interpretation that an injury is not “accidental” simply because

it is “reasonably foreseeable,” then it is not our place to press that position for the

insurer. We suspect, moreover, that the claimant in this case will feel less

“sandbagged,” post at 29, if she has an opportunity for consideration of her claim at

the administrative level under the standard that Hartford now says should apply, than

if her claim is rejected by this court on a basis not even urged by Hartford in its briefs

on appeal. 

Of course, if a plan administrator attempts to gain a tactical advantage by

proffering a new plan interpretation for the first time in litigation, then we are “free

to ignore” it, Marolt, 146 F.3d at 620, and we need not always return a case to an

administrator where a new interpretation is offered in litigation. See Schadler, 147

F.3d at 398 n.11 (disclaiming any such “steadfast rule”). Here, however, Hartford has

declined to maintain its original, narrower interpretation of “accidental injury,” and

we see no potential for abuse in permitting the administrator to consider in the first

instance how Wickman’s more generous interpretation of accidental injury, which

Hartford now embraces, should be applied in this case.

-18-

Disability Income Plan, 85 F.3d 455, 461 (9th Cir. 1996) (internal quotation omitted);

see also Jones v. Metro. Life Ins. Co., 385 F.3d 654, 665 (6th Cir. 2004) (remanding

to district court for return to administrator after concluding that administrator applied

impermissible definition of “accident” in denying benefits). In this case, a return to

the administrator has the additional salutary effect of permitting the administrator to

consider in the first instance evidence received by the district court, but not presented

to the administrator, concerning whether a reasonable person would have viewed

Schanus’s injuries and death as “highly likely to occur” as a result of his operating

a motorcycle while intoxicated.4
-19-

* * * 

For the foregoing reasons, we reverse the judgment of the district court

granting summary judgment in favor of Hartford, and remand the case with

instructions to return the claim to the administrator for reevaluation of Amber Lynn’s

claim for accidental benefits under the Wickman standard that Hartford asserts should

be applied.

BRIGHT, Circuit Judge, with whom LAY and BYE, Circuit Judges, join, concurring.

I join in Judge Colloton’s excellent opinion in this case. I write separately to

comment on the remand. However, the dissenting opinion discusses an issue that

Judge Colloton’s opinion for the Court does not reach – the reasonableness of the

plan administrator’s definition of “accident.” While discussion of this issue is

unnecessary, see slip op. at 11, I write separately also to contribute some observations

to the dissenting opinion’s partial discussion of that issue. 

I.

I write separately, first, to explain why Hartford, a nationally known and

highly-regarded insurer, should be given an opportunity to correct its previous faulty

administrative decision denying the claim of Amber Lynn Schanus, a minor child, for

accidental death benefits in the sum of $42,000 plus interest resulting from the death

of her father, an employee-insured under the Hartford policy. In the panel opinion,

Judge Murphy and Judge Lay joined me in an outright reversal, ruling that Schanus’s

claim should be paid. King ex rel. Schanus v. Hartford Life & Accident Ins. Co., 357

F.3d 840 (8th Cir. 2004), vacated by order granting reh’g en banc.

As Judge Colloton’s opinion observes, the record before the plan administrator

did not contain the statistical evidence presented in the district court relating to the
5

 Because Hartford has adopted the Wickman definition of “accident,” the

administrator must consider the background and characteristics of the decedent. See

Wickman, 908 F.2d at 1088.

6

The key phrases in Hartford’s denial letters were that Schanus’s injuries

“could [have been] expected” or were “[not] unexpected” or were “foreseeable” or

“reasonably foreseeable.” The “reasonably foreseeable” language came in Hartford’s

second denial letter, amplifying and justifying the standard it used to define

“accident.” 

As Judge Colloton’s opinion for the Court notes, in litigation Hartford has

-20-

frequency of injuries and deaths from drunk driving. Slip op. at 3. That evidence

shows that drunk driving deaths constitute less than one percent of the number of

people arrested for drunk driving. Id. at 844.

Apart from Hartford’s litigation position, Hartford is obligated to be fair and

reasonable to itself and to claimants in ruling whether a policy should be paid. With

the review, the plan administrator will have all the facts and can apply the standard

that in litigation it has acknowledged to be correct — Whether a reasonable person,

with background and characteristics similar to the insured, would have viewed

Schanus’s injuries and death as highly likely to occur as a result of Schanus’s

conduct. See Wickman v. N.W. Nat’l Ins. Co., 908 F.2d 1077, 1088 (1st Cir. 1990).

I am quite sure that Hartford has spent considerably more to defend its denial

of Schanus’s claim than it would have cost to pay the claim itself. It is time now to

reasonably and properly conclude Schanus’s claim on all the facts and the correct

law.5

 On remand, the plan administrator can do just that.

II.

According to the plan administrator’s definition of “accident,” an injury is not

an accident if it was reasonably foreseeable.6

 The dissenting opinion discusses the
argued that the plan administrator used the federal common law definition of

“accident,” developed in Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077 (1st

Cir. 1990), and subsequent cases. The federal common law definition of “accident”

is: An injury that the victim reasonably expected to escape or (where the victim’s

subjective expectations cannot be determined) an injury that a reasonable person with

background and characteristics similar to those of the victim would not have

considered “highly likely.” See id., at 1088-89. An unexpected injury is an accident

unless it would be objectively unreasonable for the victim to expect to escape the

injury. See id. See also Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1456 (5th Cir.

1995) (Justice Byron White, ret.) (decedent’s death was an accident because

decedent’s expectation of survival was objectively reasonable; expectation is

objectively reasonable if death was not “substantially certain”); Critchlow v. First

UNUM Life Ins. Co. of Am., 378 F.3d 246, 264 (2nd Cir. 2004); Padfield v. AIG Life

Ins. Co., 290 F.3d 1121, 1126-27 (9th Cir. 2002); Santaella v. Metro. Life Ins. Co.,

123 F.3d 456, 463 (7th Cir. 1997).

In litigation, Hartford did not deny that the plan administrator defined

“accident” to exclude reasonably foreseeable injuries. Hartford simply argued that

“highly likely” and “reasonably foreseeable” are the same thing. Obviously they are

not. The highly-likely standard not only creates a far more inclusive definition of

“accident,” but also requires more care and consideration in assessing likelihoods.

The reasonably-foreseeable standard, by contrast, not only could define away most

accidents resulting from the victim’s imprudence or negligence, but also provides an

easy way for an insurance company to deny just claims relating to accidents.

-21-

reasonableness of this definition – an issue that the opinion for the Court does not and

need not reach. In its partial discussion, the dissenting opinion does not consider the

startling implications of this definition. I wish to contribute here only a few initial

observations.

Anytime we review a plan administrator’s definition of a term, we review more

than a denial of claims in a single insurance case – a case, for instance, involving a

drunk driver. We are reviewing a definition that the plan administrator would be free

– if we affirmed it – to apply in all cases, even those involving, for instance, sober

drivers.
-22-

The gulf between the common law definition and the plan administrator’s

definition here is telling. The two definitions are at opposite poles. The common law

definition asks whether the victim could reasonably have expected to escape the

injury. See n.1, supra. The plan administrator’s definition here asks whether the

victim could reasonably have expected to suffer the injury. As Justice White noted,

one can reasonably expect to escape injury so long as the injury is not “substantially

certain.” See Todd, 47 F.3d at 1456. On the other hand, a slim chance of an injury

– mere foreseeability – is enough to say one “could expect” to suffer an injury. If the

common law definition, developed through many cases in several courts, is

reasonable, one would not expect a reasonable discretionary definition by a plan

administrator to be separated by so vast a chasm from the common law definition. 

Let us briefly examine the possible results of the plan administrator’s

definition, which could exclude from “accident” coverage all deaths or injuries that

were reasonably foreseeable. When a woman stands on a shaky stool to reach for a

bottle of baby formula on the top shelf of the cupboard, it is reasonably foreseeable

that she will fall and, in crashing to the kitchen counter and then to the floor, break

her neck. Under the plan administrator’s definition, the woman’s injury is not an

accident. When a lineman working atop an electricity pole relies on his partner to

have cut the power, instead of checking it himself, it is reasonably foreseeable that

he will be electrocuted. Under the plan administrator’s definition, the lineman’s

injury would be ruled a non-accident. When a man speeds his pregnant wife to the

hospital, breaking the speed limit, it is reasonably foreseeable that he will crash the

car and injure the passengers. Applying a reasonably-foreseeable standard, the plan

administrator could rule the injuries not accidental.

As the Wickman court noted, people buy accident insurance to protect

themselves against their own negligence – that is, voluntary but imprudent conduct

that may with reasonable foreseeability result in injuries or even death. See 908 F.2d

at 1088.
7

Hartford cites one published case and one unpublished case in which courts

permitted a plan administrator’s use of a “reasonably foreseeable” standard in

defining “accident.” These cases from other circuits apply a different and less

searching reasonableness review than we apply under Finley.

The Seventh Circuit in Cozzie v. Metropolitan Life Ins. Co., 140 F.3d 1104 (7th

Cir. 1998) applied a standard for “reasonableness” review that required only that the

plan administrator’s decision be rational, or make “a rational connection” between

“the issue to be decided, the evidence in the case, the text under consideration, and

the conclusion reached.” See id. at 1108-09. The Cozzie court merely noted that the

plan administrator had taken a position that had also been taken by certain district

courts, and that was enough for the court to conclude that the administrator’s decision

was not irrational or “downright unreasonable.” See id. at 1109-11. This relaxed sort

of reasonableness review is not available under Finley.

In Cates v. Metropolitan Life Ins. Co., 149 F.3d 1182 (Mem.), 1998 WL

385897 (6th Cir. 1998), an unpublished opinion not binding within the Sixth Circuit,

the court applied a similar rational-decision review for reasonableness that is at odds

with Finley. See id. at *2-3.

Our reasonableness review, announced in Finley, would not permit the

decisions and dicta stated in these cases and relied on by Hartford.

-23-

By excluding from accident coverage any injury that was reasonably

foreseeable, the plan administrator’s decision would seem to make nonsense of the

concept of an “accident.” It would seem to reduce “accident insurance” to insurance

only for strange, unforeseeable injuries (e.g., choking to death on a piece of meat) or

for injuries in which the victim was passive rather than active (being struck by

lightning or being run down by a reckless driver while crossing the street). Such a

construction of the terms of an insurance plan would turn the insurance policy into

a trap for the unwary. It would deceive employees – attracting them to a job with the

promise of benefits that turn out, when they are claimed, to be illusory. Such

interpretations of plan language by a plan administrator constitute an abuse of

discretion – under the third Finley factor, namely, that a decision may not violate the

substantive or procedural requirements of ERISA (by, for instance, misleading plan

participants).7

 See Lutheran Med. Ctr. v. Contractors Health Plan, 25 F.3d 616, 621

(8th Cir. 1994); Brumm v. Bert Bell NFL Ret. Plan, 995 F.2d 1433, 1439-40 (8th Cir.
-24-

1993). Such a definition also runs afoul of the first Finley factor: It is not consistent

with the goals of an accident insurance plan to deny coverage for all accidents other

than those in which the victim was passive or which did result from the victim’s own

actions but were so bizarre as to be unforeseeable.

One might think that the plan administrator would not apply the “reasonably

foreseeable” standard in cases such as those I have listed, but would apply it only in

drunk driving cases or in autoerotic self-asphyxiation cases (the sorts of cases

Hartford focuses on in its briefs). But our law is clear that we cannot allow a

definition on the basis that a plan administrator will apply it in some cases but not

others, at his/her pleasure. Such inconsistent application itself constitutes an abuse

of discretion (the fourth Finley factor). If we permit a definition in one case, we must

expect it to be applied consistently, in all cases.

Again, the opinion for the Court does not, and need not, reach the issue of

whether the plan administrator’s reasoning was reasonable or was an abuse of

discretion. See slip op., supra, at 11.

GRUENDER, Circuit Judge, with whom LOKEN, Chief Judge, and MORRIS

SHEPPARD ARNOLD and RILEY, Circuit Judges, join, dissenting.

Because I conclude that the district court did not err in granting summary

judgment in favor of Hartford, I respectfully dissent.

As I analyze it, this case presents one relatively straightforward issue: Whether

the Hartford plan administrator abused its discretion when it denied Amber Lynn

Schanus’s claim for accidental-death benefits on the basis that her father, Martin

Schanus, did not die from an “accidental bodily injury” under the terms of the

Hartford insurance policy when he crashed his motorcycle while driving with a

blood-alcohol level of 0.19 g/dl–nearly twice the legal limit.
-25-

Our prior decisions provide a workable framework for reviewing decisions of

ERISA plan administrators for abuse of discretion. I see no reason to deviate from

those decisions in this case. Using our well-established framework, I would conclude

that the Hartford plan administrator did not abuse its discretion in denying Amber

Lynn’s claim. However, before analyzing the plan administrator’s decision, I will

explain where I think the Court’s opinion goes astray and how the Court’s decision

ultimately deviates from our normal treatment of ERISA abuse-of-discretion cases.

 In my view, the Court has confused the issue in this case with its conclusion

that, “by asserting that the Wickman test of ‘highly likely to occur,’ rather than a

‘reasonably foreseeable’ standard, should govern whether Amber Lynn is entitled to

‘accidental death benefits’ under the plan, Hartford effectively concedes that it

applied the wrong definition of ‘accidental’ in denying the claim.” First, the Court

misreads the test set forth in Wickman v. Northwestern National Insurance Co., 908

F.2d 1077 (1st Cir. 1990). Second, the Court reads too much into Hartford’s reliance

on Wickman during litigation of this case.

The facts of Wickman are simple and few. Paul Wickman was last seen

standing on the outside of the guardrail of a highway bridge and holding on to the

guardrail with only his right hand. He fell to his death from the bridge to railroad

tracks forty or fifty feet below. His widow, Mrs. Wickman, submitted a claim for

benefits under an ERISA-governed, accidental-death insurance policy sponsored by

her husband’s employer. Noting that the policy defined accident as “an unexpected,

external, violent and sudden event,” the plan administrator denied Mrs. Wickman’s

claim.

As a result, Mrs. Wickman brought a suit for benefits under ERISA.

Acknowledging that there is no right to a jury trial in an action for benefits under

ERISA, the parties consented to a trial before a magistrate judge. The magistrate
8

As the Court explains in its opinion, in Firestone Tire and Rubber Co. v.

Bruch, 489 U.S. 101, 115 (1989), the Supreme Court held that where, as in this case,

an ERISA plan gives the plan administrator discretionary authority to decide

eligibility questions or to construe the terms of the plan, the administrator’s claim

decision is reviewed for an abuse of discretion. The Wickman court does not explain

why de novo review applied in that case, but the answer can be gleaned from the date

of the Wickman decision. Although the First Circuit ultimately decided Wickman in

1990, just one year after Firestone, Mr. Wickman died in 1984, the plan administrator

decided Mrs. Wickman’s claim prior to Firestone, and the policy that applied to Mrs.

Wickman’s claim most likely did not contain the requisite language for deferential

review under Firestone.

-26-

judge performed a de novo review of the facts8

 and concluded that Mr. Wickman’s

death was not accidental because he “knew or should have known that serious bodily

injury or death was a probable consequence substantially likely to occur as a result

of his volitional act of placing himself outside of the guardrail and hanging on with

one hand.” Wickman, 908 F.2d at 1081. Mrs. Wickman appealed the magistrate

judge’s ruling.

According to the Court’s opinion in the present case, “the Wickman test” is a

definition of accident that excludes injuries that a reasonable person would have

viewed as highly likely to occur. See supra at 3. To consider this to be “the Wickman

test” misreads the First Circuit’s task in Wickman. The focus of Wickman was not to

formulate a generally applicable definition of accident; the term was already defined

in the insurance policy, and the court even noted that the “[c]ase law is fairly

consistent in defining an accident, using equally ambiguous terms . . . .” Wickman,

908 F.2d at 1087. Rather, the central issue in Wickman was whether the magistrate

judge erroneously applied the policy’s definition of accident–an unexpected event–to

the particular facts surrounding Mr. Wickman’s fall from the bridge. Id. at 1088-89.

Faced with the task of resolving this issue, the First Circuit sought to give

“substance to a concept which is largely intuitive.” Id. at 1087. The Wickman court
-27-

rejected the parties’ invitation to analyze the issue in terms of “what level of

expectation is necessary for an act to constitute an accident; whether an intentional

act proximately resulting in injury or only the ultimate injury itself must be

accidental.” Id. at 1085-86. Instead, the Wickman court concluded that the proper

starting point in determining whether an injury constitutes an accident under the terms

of an insurance policy should be the “reasonable expectations of the insured when the

policy was purchased.” Id. at 1088. Noting that “[g]enerally, insureds purchase

accident insurance for the very purpose of obtaining protection from their own

miscalculations and misjudgments,” the First Circuit proffered a test to use in

analyzing accident claims that aims to “prevent unrealistic expectations from

undermining the purpose of accident insurance.” Id. 

The proffered test has two prongs. First, “[i]f the fact-finder determines that

the insured did not expect an injury similar in type or kind to that suffered, the factfinder must then examine whether the suppositions which underlay that expectation

were reasonable.” Id. at 1088. Next, if the fact-finder finds the evidence insufficient

to accurately determine the insured’s subjective expectations, “the fact-finder should

then engage in an objective analysis of the insured’s expectations.” Id. The Wickman

court stated that in conducting such an analysis, “one must ask whether a reasonable

person, with background and characteristics similar to the insured, would have

viewed the injury as highly likely to occur as a result of the insured’s intentional

conduct.” Id. “An objective analysis . . . serves as a good proxy for actual

expectation.” Id.

In my view, the Wickman test is an analysis that gives “substance” to a factfinder’s application of the definition of accident by focusing on the reasonable

expectations of the insured. Although the Wickman court used the phrase “highly

likely to occur,” when viewed in the context of the entire opinion, it is apparent that

the court’s emphasis was not on the degree of the insured’s expectations but on the

reasonableness of the insured’s expectations.
-28-

The Wickman court’s focus on reasonableness is evident from its holding. The

court upheld the magistrate judge’s decision denying Mrs. Wickman’s accidentaldeath claim, concluding that “the magistrate appropriately engaged in an objective

analysis.” Id. at 1089. The court reasoned that the magistrate judge’s conclusion that

Mr. Wickman should have known that death or injury was substantially likely to

occur “equates with a determination . . . that a reasonable person in [Mr. Wickman’s]

shoes would have expected the result, and that any other expectation would be

unreasonable.” Id. (emphasis added). Furthermore, the First Circuit’s own

application of the objective analysis to Mrs. Wickman’s claim is devoid of any

discussion about whether a reasonable person in Mr. Wickman’s shoes would have

viewed death as “substantially” or “highly” likely to occur. Id. Rather, the Wickman

court simply explained, “Objectively, he reasonably should have expected serious

injury when he climbed over the guardrail and suspended himself high above the

railroad tracks below by hanging on to the guardrail with only one hand.” Id.

As I read Wickman, the First Circuit did not adopt a specific definition of

accident. Hartford has recognized this subtlety. Before both the district court and

this Court, Hartford has relied on the analytical framework of Wickman to support its

argument that the plan administrator’s application of its interpretation of the term

“accidental” to the facts of Amber Lynn’s claim was reasonable. In its brief to this

Court, Hartford argued: “Appellant seems to argue that the Wickman test is chiefly

relevant to determining whether Hartford reasonably defined plan terms. Hartford

contends the Wickman framework is principally relevant to reviewing Hartford’s

evaluation of the facts.” Brief of Appellee at 13. Specifically, Hartford argued:

“[T]he evidence supports Hartford’s determination that Mr. Schanus’ expectations

were manifestly unreasonable . . . .” Id. at 27-28. In addition, I do not believe

Hartford has conceded that the “highly likely to occur” reference in Wickman should

be the proper interpretation of the term “accidental” in the Hartford insurance policy.

In fact, Hartford asked this Court to reject “a strained interpretation of the second
-29-

prong of the Wickman test (that is, whether a reasonable person would view the injury

as ‘highly likely to occur.’)” Brief of Appellee at 30.

Based on the foregoing, I must respectfully disagree with the Court that

Hartford has defended its denial of Amber Lynn’s claim by invoking a Wickman-like

“highly likely to occur” definition of “accidental.” Therefore, I would proceed by

reviewing the Hartford plan administrator’s claim denial for an abuse of discretion,

using the analytical framework provided by the case law of this Circuit. However,

at this point I think it is necessary to explain that even if I agreed with the Court that

Hartford “effectively concede[d]” the plan administrator used the wrong definition

of “accidental” in denying Amber Lynn’s claim, I would disagree that the proper

course of action in such a situation is to return the claim to the plan administrator for

reevaluation using “the Wickman standard that Hartford asserts should be applied”

and considering evidence that was not before the plan administrator in the first

instance. See supra at 17-18.

I believe the Court would be obliged to “ignore ERISA plan interpretations that

did not actually furnish the basis for a plan administrator’s benefits decision,” Marolt

v. Alliant Techsystems, Inc., 146 F.3d 617, 620 (8th Cir. 1998), and make an up or

down call, based solely on the record that was before the plan administrator, on one

simple issue: Whether the Hartford plan administrator abused its discretion in

denying Amber Lynn’s claim. This approach is consistent with the idea that ERISA

claimants should not be “sandbagged by after-the-fact plan interpretations devised for

purposes of litigation,” Marolt, 146 F.3d at 620, and with “ERISA’s purpose of

streamlining and shortening the timeframe for disposing of claims,” Schadler v.

Anthem Life Ins. Co., 147 F.3d 388, 396 (5th Cir. 1998). The Court’s decision today

undermines these important ERISA concepts. 

Moreover, the Court’s decision potentially allows an ERISA defendant to usurp

the reviewing court’s role in determining whether and how a plan administrator may
9

While a remand to the plan administrator in this case could work to the benefit

of this claimant, the Court’s holding today may well work to the detriment of future

ERISA claimants. For example, consider the following scenario: An ERISA plan

administrator denies a beneficiary’s accidental-death benefit claim, reasoning that the

insured, who crashed his motorcycle while driving with a blood-alcohol level nearly

twice the legal limit, did not die from an “accidental bodily injury” under the terms

of the policy because his death was “highly likely to occur.” The claimant appeals

the denial and submits statistical evidence that the number of people who die as a

result of drunk driving is less than 1% of all individuals who are arrested for driving

under the influence of alcohol. The plan administrator ignores the evidence and

upholds the denial, using the “highly likely to occur” standard. The claimant files a

suit for benefits under ERISA and files a motion for summary judgment. After

reading the claimant’s brief to the district court, the ERISA defendant concludes that

the court will likely hold that the plan administrator abused its discretion in denying

the claim. Under today’s holding, the defendant may be able to avoid an adverse

grant of summary judgment by the district court by abandoning the “highly likely to

occur” standard used by the plan administrator and adopting a different standard, in

the hope that the district court will remand to the plan administrator for a

determination using the new standard. If the new standard is better designed to

survive abuse of discretion review, the defendant can prevail in any ensuing litigation

despite the fact that the plan administrator may have initially abused its discretion. 

With regard to the Court’s proviso that remand need not occur if an ERISA

defendant changes its litigation position in an attempt to gain a tactical advantage, see

supra at 18 n.4, I do not share the Court’s confidence that a reviewing court will

necessarily be able to divine the intent behind a litigation strategy that drifts away

from the plan administrator’s original position. Apparently, the Court has decided

-30-

have abused its discretion in denying a claim for benefits. The rule adopted by the

Court–“when an administrator abandons in litigation its original basis for denying

benefits, the better course generally is to return the case to the administrator”–makes

it possible for an ERISA defendant fearing defeat in litigation to return the

proceedings to the plan administrator for another bite at the apple simply by

abandoning its administrative position and advancing a new interpretation or reason

during litigation.9

 See supra at 17.
that Hartford is gaining no tactical advantage in this case because Hartford has moved

away from “its original, narrower interpretation” of accidental injury. See id.

However, on remand, the Hartford plan administrator may not interpret or apply

“Wickman’s more generous interpretation of accidental injury,” id., as generously as

the Court expects. Regardless of the outcome on remand, the fact remains that

“ERISA’s purpose of streamlining and shortening the timeframe for disposing of

claims,” see Schadler, 147 F.3d at 396, has been unnecessarily frustrated in this case.

-31-

The Court cites several cases in support of its decision not to engage in the

normal abuse-of-discretion review of the Hartford plan administrator’s denial of

Amber Lynn’s claim and, instead, to opt for the unusual course of remanding the

claim to the plan administrator for reevaluation based on what the Court claims

Hartford’s attorney now says is the correct definition of “accidental.” See supra at

17. However, I would submit that some of these cases actually lend support to the

proposition that where, as here, the plan administrator has been given discretion to

interpret plan terms and, in fact, has done so, it is the court’s responsibility to review

the administrator’s interpretation for an abuse of discretion. See, e.g., Jones v. Metro.

Life Ins. Co., 385 F.3d 654, 661-66 (6th Cir. 2004) (remanding claim to plan

administrator for reconsideration in light of the court’s opinion, after determining

plan administrator’s interpretation of plan term was arbitrary and capricious); Saffle

v. Sierra Pac. Power Co. Bargaining Unit Long Term Disability Income Plan, 85

F.3d 455, 460-61 (9th Cir. 1996) (remanding case to plan administrator for a decision

on the merits of the participant’s claim consistent with the court’s opinion, after

determining plan administrator abused its discretion by misconstruing plan language);

Miller v. United Welfare Fund, 72 F.3d 1066, 1072-74 (2d Cir. 1995) (remanding

case to fiduciary after determining fiduciary acted arbitrarily and capriciously in

denying plan benefits). If the reviewing court determines that there has been an abuse

of discretion, then remand may be necessary to allow the plan administrator to

reevaluate the claim in light of the court’s opinion on how the administrator’s

decision was unreasonable. Compare Jones, Saffle, and Miller, with Marolt, 146

F.3d 620-21 (remand unnecessary where court ignored post hoc interpretation devised
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for litigation and determined plan administrator’s legally erroneous claim denial was

an abuse of discretion).

The other cases cited by the Court are distinguishable from the present case

because they involve situations where remand was necessary because the plan

administrator either did not give reasons for its decision or had not yet interpreted the

plan; thus, it was the plan administrator’s role to develop the administrative record

and decide the claim in the first instance, not the court’s. See, e.g., Shelton v.

ContiGroup Cos., Inc., 285 F.3d 640, 644 (8th Cir. 2002) (remanding case to plan

administrator for a decision on the merits of the participant’s claim after determining

plan administrator abused its discretion by abdicating its duty under the terms of the

plan to make disability determinations); Caldwell v. Life Ins. Co. of N. Am., 287 F.3d

1276, 1288-90 (10th Cir. 2002) (remanding “any occupation” disability claim to

claims administrator because denial letter failed to specify a reason for the decision);

Schadler, 147 F.3d at 397-98 (remanding claim to plan administrator because in the

unique circumstances of the case, “the administrator never had occasion to exercise

any discretion to interpret the terms of the Plan”); Gallo v. Amoco Corp., 102 F.3d

918, 922-23 (7th Cir. 1996) (noting that if, hypothetically, there were some

requirement that an ERISA claim denial contain a “reasoned elaboration of its basis”

and the administrator fails to give “the reasoning behind the reasons,” the court would

not decide the plaintiff’s benefits claim but instead would remand the claim to the

plan administrator for further explanation).

Because I do not think Hartford advanced a Wickman-like “highly likely to

occur” definition of “accidental,” and because I would ignore any post hoc rationales

even if I agreed with the Court that Hartford advanced a different definition during

litigation, I now turn to what I believe is the only issue in this case: Whether the

Hartford plan administrator abused its discretion in denying Amber Lynn’s claim.
10The five factors to be considered are: (1) whether the Hartford plan

administrator’s interpretation is consistent with the goals of the policy; (2) whether

the interpretation renders any language in the policy meaningless or internally

inconsistent; (3) whether the interpretation conflicts with the substantive or

procedural requirements of the ERISA statute; (4) whether the Hartford plan

administrator has interpreted the word “accidental” consistently; and (5) whether the

interpretation is contrary to the clear language of the policy. See Finley, 957 F.2d at

621. “These factors present discrete questions; they need not be examined in any

particular order.” Hutchins v. Champion Int’l Corp., 110 F.3d 1341, 1344 (8th Cir.

1997).

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As the Court explains, because the Hartford policy gives the plan administrator

the discretionary authority to decide eligibility questions or to construe the terms of

the policy, the administrator’s denial of Amber Lynn’s claim is reviewed for an abuse

of discretion. Firestone, 489 U.S. at 115. The abuse-of-discretion standard of review

is a “deferential standard [which] reflects our general hesitancy to interfere with the

administration of a benefits plan.” Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th

Cir. 1998). “Under this standard, an administrator’s decision to deny benefits will

stand if reasonable.” Farley v. Ark. Blue Cross & Blue Shield, 147 F.3d 774, 777 (8th

Cir. 1998).

In this Circuit, two tests are relevant in analyzing whether the Hartford plan

administrator’s denial of Amber Lynn’s claim was reasonable. First, in determining

whether the plan administrator’s interpretation of the term “accidental” was

reasonable, the five-factor test set forth in Finley v. Special Agents Mutual Benefit

Ass’n, Inc., 957 F.2d 617, 621 (8th Cir. 1992), is applied.10 Next, in determining

whether the plan administrator reasonably applied its interpretation of the term

“accidental” to the facts of Amber Lynn’s claim, the test is whether the decision is

“adequately supported by the evidence on record.” Donaho v. FMC Corp., 74 F.3d

894, 900 (8th Cir. 1996). In other words, if the plan administrator “offer[s] a

reasoned explanation, based on the evidence, for a particular outcome,” the decision

must not be disturbed, even though a different reasonable decision could have been
11The Hartford insurance policy provided that Hartford will pay an accidentaldeath benefit if the employee participant’s death results directly from an “accidental

bodily injury.” However, the policy did not define “accidental.” As a result, the plan

administrator consulted Black’s Law Dictionary which defined “accidental” as:

“Happening by chance, or unexpectedly; taking place not according to the usual

course of things; casual; fortuitous.” In its initial claim denial letter dated December

26, 2000, the plan administrator denied Amber Lynn’s claim, reasoning: “Given [Mr.

Schanus’s] blood alcohol level, his bodily injury can in no way be considered

unexpected, happening by chance or fortuitous. On the contrary, it could be expected

that if he drove his vehicle in such a reckless manner and in an intoxicated condition,

serious bodily injury could result.” Amber Lynn appealed the denial, and on June 14,

2001, the plan administrator upheld the denial, explaining: “[A] reasonable person

would have known that death or serious injury was a reasonably foreseeable result of

driving while intoxicated.” 

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made. Id. at 899 (quotation omitted); see also Cash v. Wal-Mart Group Health Plan,

107 F.3d 637, 641 (8th Cir. 1997). 

Given the deferential standard of review governing this case and applying the

two relevant tests, I cannot say that the Hartford plan administrator reached an

unreasonable decision. Consequently, I would affirm the decision of the district

court.

The Hartford plan administrator’s interpretation of the word “accidental” was

reasonable under the Finley five-factor test.11 I think it is necessary first to explain

that, in my view, the administrator has interpreted the word “accidental” consistently.

There is no evidence that the plan administrator somehow deviated from a standard

definition of “accidental” applied in the past, see Cash, 107 F.3d at 644 n.7, but the

Court seems to express some concern over whether the plan administrator

consistently interpreted the word “accidental” from the first denial letter to the second

denial letter. See supra at 11. The initial denial letter defines “accidental” in terms

of being “unexpected,” and the second denial letter defines “accidental” in terms of

being “unforeseen.” At this juncture, it is appropriate to look to the dictionary to give
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the words “unexpected” and “unforeseen” their ordinary meanings. See Cash, 107

F.3d at 643-44 (noting that it was necessary and reasonable for the Court to use the

dictionary to define terms within an ERISA plan’s definition of “pre-existing

condition” in determining whether administrator’s claim denial was reasonable).

Merriam-Webster’s Collegiate Dictionary defines “unexpected” as “not expected :

UNFORESEEN.” Merriam-Webster’s Collegiate Dictionary 1286 (10th ed. 2002).

It also defines “expect” as “to anticipate;” “foreseeable” as “being such as may be

reasonably anticipated;” and “anticipate” as “to look forward to as certain :

EXPECT.” Id. at 407, 456, 50. And finally, it notes that “foresee” is a synonym for

“anticipate.” Id. at 50. Based on these dictionary definitions, I would conclude that

the Hartford plan administrator’s interpretation of the word “accidental” was

consistent because the words “unexpected” and “unforeseen” are synonymous.

Next, the Hartford plan administrator’s interpretation of the word “accidental”

to mean “unexpected” or “unforeseen” is not contrary to the clear language of the

policy. This Finley factor is satisfied where the plan administrator has given the

words of the plan their ordinary meaning. Hutchins, 110 F.3d at 1344. “Ordinary

meaning is determined by the dictionary definition of the word and the context in

which it is used.” Id. (“Under an abuse of discretion standard we do not search for

the best or preferable interpretation of a plan term: it is sufficient if the

[administrator’s] interpretation is consistent with a commonly accepted definition.”).

The Hartford plan administrator gave ordinary meaning to the word “accidental” by

consulting Black’s Law Dictionary, by interpreting the word to mean “unexpected,”

and by expounding upon the ordinary meaning of the word “unexpected” in the

second denial letter. The Hartford plan administrator’s interpretation of the word

“accidental” to mean “unexpected” or “unforeseen” is consistent with commonly

accepted definitions and, therefore, is not contrary to the clear language of the policy.

Third, relying on the Seventh Circuit’s decision Cozzie v. Metropolitan Life

Insurance Co., 140 F.3d 1104, 1110 (7th Cir. 1998), the plan administrator’s
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interpretation of the word “accidental” to mean “unexpected” or “unforeseen” is

consistent with the goals of the Hartford accidental-death policy. The facts and issue

in Cozzie are almost identical to the present case. In Cozzie, MetLife denied a

beneficiary’s claim for accidental-death benefits under an ERISA-governed plan on

the basis that the employee participant’s death did not result from an accident when

he crashed his car while driving with a blood-alcohol level of more than twice the

legal limit. MetLife defined “accident” in terms of reasonable foreseeability. The

Seventh Circuit concluded that MetLife’s interpretation was rational because it was

consistent with the goals of the accidental-death plan. Id. The court explained:

The purpose of this plan is to provide the families . . . with insurance

against the tragedy of unexpected death by providing additional benefits

for those who experience such a loss and all its consequent tremors.

Whenever a plan fiduciary determines that benefits are not owed under

particular circumstances, it does, from the perspective of the claimants

in that case, frustrate the purpose of providing assistance. However, as

with all insurance arrangements, the plan fiduciary or administrator must

ensure that payments are reserved for those who truly fall within the

terms of the policy. Otherwise, the financial health of the pooled assets

is jeopardized and the cost of providing recovery for future applicants

owed assistance is escalated. We cannot say, therefore, that MetLife’s

determination that the purposes of the plan are best served by

acknowledging a qualitative difference between the ingestion of a huge

quantity of alcohol and other tragedies of human life which do not

involve such a significant assumption of a known risk by the insured is

incompatible with the goals of the plan. 

Id. See also Finley, 957 F.2d at 621 (concluding that the administrator’s interpretation

of a term in an accidental-death-and-dismemberment plan was in accord with the goal

of providing additional benefits in certain circumstances).

Next, the Hartford plan administrator’s interpretation of “accidental” does not

render any language in the policy meaningless or internally inconsistent. Appellant
12In an employee benefit plan, an exclusion is a benefit that meets the rule of

coverage under the plan (e.g., meets the definition of “accident”), but nonetheless is

not covered under the terms of the plan. 

13The policy provides:

What types of injuries are excluded from coverage?

No benefit will be paid for a loss caused or contributed to by:

(1) sickness; or

(2) disease; or

(3) any medical treatment for items (1) or (2); or

(4) any infection, except a pus-forming infection of an accidental cut or 

 wound; or

(5) war or any act of war, whether war is declared or not; or

(6) any intentionally self-inflicted injury, suicide, or suicide attempt, whether

 sane or insane; or

(7) taking drugs, sedatives, narcotics, barbiturates, amphetamines or 

 hallucinogens unless prescribed for or administered to you by a licensed 

 physician.

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argues that the interpretation of “accidental” to mean “unexpected” or “unforeseen”

renders meaningless the policy’s “express exclusion” of death by suicide, attempted

suicide or intentionally self-inflicted injury, because under such an interpretation, the

definition would “already exclude[] any foreseeable risk of injury or death that is the

consequence of an intentional act.” Appellant’s Brief at 30. Even though the Plan

sets forth a list of “types of injuries [that] are excluded from coverage,” the list is not

really a list of exclusions.12 Rather, it is more akin to an illustrative list of nonaccidents. Each of the items listed in the Hartford policy would not qualify as an

accident under the interpretation afforded to that term by the plan administrator.13

Hartford’s interpretation of the term “accidental” does not render the list of items

meaningless; the list is a clarification of the general rule of coverage. 

Lastly, the Hartford plan administrator’s interpretation of “accidental” does not

conflict with the substantive or procedural requirements of the ERISA statute.
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Nowhere in ERISA is a plan required to use a specific definition of “accident.” It may

be true that a body of common law has developed regarding the definition of

“accident” in an ERISA employee benefit plan; courts have had to devise and apply

their own interpretations of the term “accident” when conducting de novo review of

a plan administrator’s decision where the plan did not give the administrator the

discretionary authority to interpret the terms of the plan. See, e.g., Santaella v. Metro.

Life Ins. Co., 123 F.3d 456 (7th Cir. 1997); Todd v. AIG Life Ins. Co., 47 F.3d 1448

(5th Cir. 1995); McElyea v. AIG Life Ins. Co., 326 F. Supp. 2d 960 (E.D. Ark. 2004);

Ablow v. Canada Life Assurance Co., No. 3:02-CV-300, 2003 WL 23325805 (D.

Conn. Nov. 19, 2003). However, in a case such as this where the plan administrator

has been given the authority to interpret the terms of the plan and in fact has done so,

it would be improper for a reviewing court to look to the common law and impose

upon the plan administrator an interpretation of “accident” that the court thinks should

have been applied. “To do so would be to ignore the appropriate deferential standard

of review and impose an improper de novo review.” See Cash, 107 F.3d at 641

(noting that in an ERISA abuse-of-discretion case, “[i]n making its evaluation, the

court does not substitute its own weighing of evidence for that of the [plan

administrator]”).

Having concluded that the Hartford plan administrator’s interpretation of

“accidental” to mean “unexpected” or “unforeseen” is reasonable under the Finley

five-factor test, I now turn to the issue of whether the plan administrator reasonably

applied its interpretation to the facts of Amber Lynn’s claim. I conclude that it did.

The plan administrator gave a “reasoned explanation, based on the evidence,”

for denying Amber Lynn’s claim. See Donaho, 74 F.3d at 899. In its final denial

letter dated June 14, 2001, the plan administrator explained: “[A] reasonable person

would have known that death or serious injury was a reasonably foreseeable result of

driving while intoxicated.” As in Wickman, the Hartford plan administrator gave

“substance to a concept which is largely intuitive,” Wickman, 908 F.2d at 1087, by
14It is interesting to note that the same evidence submitted by Appellant also

indicates that “[t]here were 16,653 alcohol-related fatalities in 2000–40 percent of the

total traffic fatalities for the year. . . . The 16,653 fatalities in alcohol-related crashes

during 2000 represent an average of one alcohol-related fatality every 32 minutes.”

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focusing on the reasonable expectations of a hypothetical person in Mr. Schanus’s

shoes. Appellant even admits this in her brief to the Court: “Hartford turned

immediately to the question of whether Schanus’s expectation was ‘reasonable’ from

an objective perspective, i.e. whether ‘a reasonable person’ would have known or

appreciated the consequences of Schanus’s intentional act of intoxication.” Brief of

Appellant at 25. 

Appellant argues that Mr. Schanus’s “expectation of reaching home . . .was not

patently unreasonable since most people who drive after drinking (even with a 0.19

BAC) are not injured or killed on the highway.” Brief of Appellant at 41. For

example, she explains that evidence she submitted to the district court “demonstrates

that the number of people who died as a result of drunk driving is less than 1% of all

individuals who are arrested for driving under the influence of alcohol.” Brief of

Appellant at 35.14 However, Appellant forgets that such evidence was not before the

Hartford plan administrator. Based on the record before it, the plan administrator

reasonably evaluated the facts from the perspective of an average driver, and not from

the perspective of an expert well-versed in crime and highway-safety statistics.

Therefore, relevant to the plan administrator’s analysis was the fact that “[t]he hazards

of driving while intoxicated are well-known. The public is reminded daily of the risks

of driving while intoxicated both in warnings from the media and in motor vehicle and

criminal laws.” Walker v. Metro. Life Ins. Co., 24 F. Supp. 2d 775, 781 (E.D. Mich.
15See also Nelson v. Sun Life Assurance Co. of Canada, 962 F. Supp. 1010,

1012 (W.D. Mich. 1997) (“All drivers know, or should know, the dire consequences

of drunk driving. Thus, the fatal result that occurred in this case should surprise no

reasonable person.”); Schultz v. Metro. Life Ins. Co., 994 F. Supp. 1419, 1422 (M.D.

Fla. 1997) (“The horrors associated with drinking and driving are highly publicized

and well known to the public.”); Fowler v. Metro. Life Ins. Co., 938 F. Supp. 476, 480

(W.D. Tenn. 1996) (“[T]he hazards of drinking and driving are widely known and

widely publicized.”).

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1997).15 The Hartford plan administrator reasonably applied its interpretation of

“accidental” to the facts of Amber Lynn’s claim.

In sum, I would conclude that the Hartford plan administrator did not abuse its

discretion. The administrator reasonably interpreted and applied the terms of the

policy to the facts of Amber Lynn’s claim for accidental-death benefits. Given the

deferential standard of review, the administrator’s decision to deny benefits must not

be disturbed even if a different reasonable decision could have been made. Therefore,

I would affirm the judgment of the district court.

______________________________