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

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

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-31022

Summary Calendar

WILLIAM O. SCALLION, JR.,

Plaintiff–Appellant,

v.

HARTFORD LIFE & ACCIDENT INSURANCE CO.,

Defendant–Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:08-CV-2001

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

William Scallion appeals from the district court’s grant of summary

judgment in favor of Hartford Life and Accident Insurance Company (Hartford).

For the following reasons, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

April 23, 2010

Lyle W. Cayce

Clerk

Case: 09-31022 Document: 00511090097 Page: 1 Date Filed: 04/23/2010
No. 09-31022

Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998). 1

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). 2

See Cooper v. Hewlett-Packard Co., 592 F.3d 645, 651-52 (5th Cir. 2009). 3

2

I

Scallion sustained an injury to his left eye when it was accidentally

lacerated with a metal object. He filed for disability benefits under two

accidental death and dismemberment policies—one issued by Hartford through

the AFL-CIO and another issued by Hartford through City Bank. The plan

issued by Hartford through the AFL-CIO is governed by the Employee

Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., and

gives Hartford full discretionary authority to construe the terms of the plan.

Hartford denied benefits under both plans on the ground that Scallion’s vision

loss was not irrecoverable. Scallion sued, and the district court granted

summary judgment in favor of Hartford as to its denial of benefits under both

policies. 

II

We review the grant of a motion for summary judgment de novo, applying

the same standard as the district court. With regard to Scallion’s claim under 1

the City Bank plan, summary judgment is appropriate when the competent

summary judgment evidence demonstrates that there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law.

2

As to the ERISA-governed plan, because the plan gives Hartford discretionary

authority to construe its terms, we review Hartford’s denial of benefits under the

plan for abuse of discretion. But since Hartford was both the plan 3

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No. 09-31022

Cook Children’s Med. Ctr. v. New England PPO Plan of Gen. Consol. Mgmt., Inc., 491

4

F.3d 266, 272 (5th Cir. 2007) (internal quotation marks omitted).

See, e.g., Fairley v. Prudential Ins. Co. of Am., 40 F.3d 385, 1994 WL 652577, at *3 5

(5th Cir. 1994) (unpublished table decision); Rice v. Military Sales & Serv. Co., 621 F.2d 83,

87 (4th Cir. 1980); Wallace v. Ins. Co. of N. Am., 415 F.2d 542, 545 (6th Cir. 1969); Home Life

Ins. Co. of N.Y. v. Stewart, 114 F.2d 516, 518-19 (10th Cir. 1940).

3

administrator and the insurer, we review its decision with “a modicum less

deference than we otherwise would.”4

Both plans provide dismemberment benefits only upon loss and define loss

with regard to sight as an “entire and irrecoverable loss thereof.” Hartford

determined that Scallion had not suffered an irrecoverable loss of sight based on

information provided by Dr. Nils Mungan, Scallion’s treating physician, that

Scallion’s sight was recoverable through a corneal transplant. Mungan similarly

testified in his deposition that Scallion’s vision could be regained through

surgery, and the district court relied on this evidence in granting summary

judgment for Hartford on Scallion’s claim under the City Bank plan. 

Scallion argues that the contract is ambiguous and that Hartford failed to

produce substantial evidence that his sight could be regained. Neither argument

has merit. The contract states that the loss of sight must be “entire and

irrecoverable.” The term “irrecoverable” is unambiguous. This circuit and a

number of other courts have concluded that sight is recoverable if it may be

regained through surgery or other artificial means. Further, all of the evidence 5

in the administrative record and the district court record suggests that Scallion’s

sight could be recovered through surgery. Accordingly, the district court

correctly concluded that Hartford did not abuse its discretion in denying Scallion

benefits under the AFL-CIO plan and that Hartford was entitled to summary

judgment on Scallion’s claim under the City Bank plan. 

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4

* * *

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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