1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0065p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

N ICOLE C ULTRONA , Plaintiff-Appellant/Cross-Appellee ,

v

.

N ATIONWIDE L IFE I NSURANCE C OMPANY , N ATIONWIDE D EATH B ENEFIT P LAN , and S TAR L INE G ROUP , Defendants-Appellees ,

N ATIONWIDE B ENEFITS A DMINISTRATIVE C OMMITTEE , Defendant-Appellee/Cross-Appellant

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ Nos. 13-3558/3585

Appeal from the United St ates District Court

for the Northern District of Ohio at Akron No. 5:12-cv-00444—Sara E. Li oi, District Judge. Argued: March 19, 2014 Decided and Filed: April 9, 2014 Before: GILMAN, COOK, and McKEAGUE, Circuit Judges.

_________________ COUNSEL

ARGUED: Kelly S. Lawrence, FRANTZ WARD LLP, Cleveland, Ohio, for Appellant/CrossAppellee. Daniel W. Srsic, LITTLER MENDELS ON, P.C., Columbus, Oh io, for Appellees in 13-3585 and Appellee-Cross-Appellant in 13-3585. ON BRIEF: Kelly S. Lawrence, Mark L. Rodio, Michael E. Smith, FRANTZ WARD LLP, Cleveland, Ohio, for Appellant/CrossAppellee. Daniel W. Srsi c, Lisa M. Kathumbi, LITTLER MENDELSON, P.C., Columbus, Ohio, for Appellees in 13-3585 and Appellee-Cross-Appellant in 13-3585. 

### >Nos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 2

_________________ OPINION

_________________ RONALD LEE GILMAN, Circuit Judge. Nicole Cultrona filed suit against Nationwide Life Insurance Company (Nationwide), the Nati onwide Death Benefit Plan (the Plan), the
Nationwide Benefits Administrative Committee (the BAC), and StarLine Group (StarLine) following the denial of her claim for accidental-death benefits a nd her subsequent exhaustion of the Plan’s internal administrative procedures. The claim was based on the death of Nicole’s husband, Shawn Cultrona, in June 2011. Nicole, an employee of a Nationwide affiliate, was a participant in the Plan. Among ot her benefits, the Plan provided coverage in the event of an accidental death. Shawn was a covered person under the Plan, and Nico le was the designated beneficiary for any benefits paid as a resu lt of Shawn’s death. Following the parties’ cross-motions for judgment on the administrative record, the district court entered judgment in favor of the defendants, but assessed a statutor y penalty of $55 per day (for a total of $8,910) against the BAC for its delay in providing Nicole with a copy of the accide ntal-death policy after her written request for relevant documents.
Nicole argues that the denial of her clai m was arbitrary and capri cious. On the other hand, the BAC (on behalf of itself and the other defe ndants) asks us to affi rm the judgment in its favor, but separately contends th at the district court erred in the imposition of a penalty against
the BAC as the Plan administrator. For the reasons set forth below, we AFFIRM the judgment of the district court in all respects.

I. BACKGROUND
Benefits are payable under the Plan if a cove red person suffers an “injury” as a result of an “accident.” An accident is defined in the pol icy as “an unintended or unforeseeable event or occurrence which happens suddenly and violently.” But not every accident is covered under the Plan. One of the Plan’s exclusions, Exclusion 12, provides that no benefits will be paid if the

“ Covered Person [is] deemed and presumed, under the law of the locale in which the Injury is sustained, to be under the influence of alcohol or intoxicating liquors.” (em phasis in original).Nos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 3

Nicole discovered Shawn’s body in the first- floor bathroom of their Twinsburg, Ohio home on June 5, 2011. Shawn had gone out drinki ng the night before, while Nicole and the couple’s young child had spent the night at a friend’s house. When Nicole found Shawn’s body, it was cold to the touch. The Summit County Me dical Examiner’s Office performed an autopsy the next day. In the autopsy report, the examin ing pathologist concluded that the cause of death was “[a]sphyxia by extreme and restricted pos ition (positional asphyxia)” and the manner of death was “[a]cute ethanol intoxication . . . ACCIDENT: Prolonged and extreme hypertension
of neck and torso while intoxica ted.” Shawn’s blood-alcohol level at the time of the autopsy was
.22%.

Nicole filed a claim for accidental-death benefi ts with StarLine, the claims administrator for the Plan, later that same month. The tota l value of the claim wa s $212,000. After receiving the claim, StarLine obtained an investigative report from EMSI Investigative Services. That report incorporated a criminal-history search , Shawn’s motor-vehicle records, the Summit County Medical Examiner’s Office reports (aut opsy, investigation, and toxicology), and the Twinsburg Police Department report. StarLine subsequently forwarded these materials to Nationwide for processing.

Nationwide, in turn, directed StarLine to deny Nicole’s claim in October 2011. The denial letter explained that the claim was bei ng denied because “the loss is precluded from coverage by Exclusion 12.” Unfortunately, the le tter cited an earlier version of Exclusion 12 that provided as follows: “The Covered Person being deemed and presumed, under the law of the
locale in which the Injury is sustained, to be driving or ope rating a motor vehicle while under the
influence of alcohol or intoxica ting liquors.” (emphasis in origin al). The lett er continued:
The police report states that they re sponded to the deceased’s home at 1146 hours on June 05, 2011 and found the deceased dead on the bathroom floor. According to interviews they conduct ed, Shawn Cultrona had a hist ory of alcohol abuse and, in the hours before he died, had been out drinking with friends and was seen stumbling and walking into chairs prior to driving himself home.
The Medical Examiner’s report determined that death occurred when the deceased became unconscious while intoxicated (pa ssed out) [and] . . . [t]he County of Summit Toxicology Report indicates that th e deceased’s blood ethanol level was 0.220.Nos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 4

As noted above . . . [t]he requirements for coverage under the policy are not met on these facts given Shawn Cultrona’s acute ethanol intoxication at the time of death. Additionally, since th e deceased’s blood level cont ent was in excess of the level at which Ohio presumes intoxication as a matter of law; the loss is precluded from coverage by Exclusion 12 above. Nicole’s attorney responded to StarLine’s de nial letter by calling the denial “completely unfounded, and either made in bad faith or w ith a complete misreading of the Policy and Exclusion 12.” The response explained that the ve rsion of Exclusion 12 cite d in the denial letter applied only in cases involving the operation of motor vehicles.
StarLine responded to counsel’s letter seve n days later. In its reply, StarLine acknowledged that the initial denial letter contained an erroneous reference to an earlier version of Exclusion 12. The reply further explained:
[A]s you noted, this “was a complete misr eading of the Policy and Exclusion 12.” The Exclusion cited in our denial letter dated October 21, 2011, was quoted incorrectly. The policy was amended in January, 2010 effectively changing Exclusion 12 as follows:

“It is also hereby noted a nd agreed that Exclusion #12 as found under Section X – ‘Exclusions’ on page 18 of the Policy is amended to remove the reference to ‘driving or operating a motor vehicle’ . . .

Amendment I was inadvertently overlooked wh en the letter was prepared. Please accept our sincere apologies for the error and the confusion it caused and extend the same to Mrs. Cultrona. A copy of Amendment I is included for your reference.

Based on the amended Exclusion 12 langua ge, Nationwide has determined that the denial shall prevail. As noted in the original letter, this Plan of Insurance is covered by ERISA and as such, Mrs. Cultrona has the right to appeal the denial. That process is set forth in the original denial letter, a copy of which is enclosed. Nicole’s attorney responded to the second denial letter the next day, simultaneously appealing the denial and requesting “all docum ents that you contend prove that Nationwide provided notice of Amendment No. 1 . . . and all documents comprisi ng the administrative record and/or supporting Nationw ide’s decision.” StarLine forw arded the appeal to Nationwide for review by the BAC.Nos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 5

In January 2012, the BAC denied Nicole’s appe al. The BAC explaine d that Exclusion 12 precluded the payment of benef its because “Shawn Cultrona’s death was caused by . . . [a]cute
ethanol intoxication.” Nicole then filed suit in federal c ourt, asserting claims under the Employee Retirement Income Security Act of 1974 (ERISA) and a common-law breach-of-fiduciary-duty claim against Nationwid e, the Plan, the BAC, and StarLine. Her ERISA claims were twofold. First, Nicole sought payment of the death benefits pursuant to the Plan. She next sought statutory penalties as a result of the BAC’ s failure to timely provide her with a copy of the accidental-death policy.
The parties subsequently filed cross-motions for judgment on the administrative record. After extensive briefing, the di strict court entered judgment in favor of the defendants. See Cultrona v. Nationwide Life Ins. Co. , 936 F. Supp. 2d 832, 859 (N .D. Ohio 2013). The defendants’ victory, however, was only partial. Agreeing with Nicole that the BAC had breached its statutory duty to provide her with Plan-related documents upon written request, the court imposed a penalty of $55 pe r day (for a total of $8,910) ag ainst the BAC. These timely cross-appeals followed.

II. ANALYSIS

A. Standard of review

We review de novo the “decision of a distri ct court granting judgment in an ERISA disability action based on an administrative record.” Helfman v. GE Grp. Life Assurance Co. , 573 F.3d 383, 392 (6th Cir. 2009) (internal quotat ion marks omitted). Because the Plan administrator in this case had discretion to interpre t the Plan, the denial of benefits is reviewed under the arbitrary-and-capricious standard. Id. This means that the decision denying benefits must be upheld so long as it is “t he result of a deliberate, principl ed reasoning proce ss and if it is supported by substantial evidence.” Id. (internal quotation marks omitted). Finally, where the “plan administrator both decides a claimant’s eligib ility for benefits and pays [those benefits], we may consider the resulting potential for a conflic t of interest when determining whether the decision was arbitrary or capricious.” Cook v. Prudential Ins. Co. of Am. , 494 F. App’x 599, 604 (6th Cir. 2012).Nos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 6

B. The district court correctly concluded that the denial was not arbitrary or capricious Nicole offers several arguments in suppor t of her contention that the BAC acted arbitrarily and capriciou sly in denying her claim. First, she argues that the BAC was operating
under a conflict of interest because it is a division of Nationwide. Pointi ng to the BAC’s charter,
she notes that each member of the BAC is a dire ctor-level or higher employee of Nationwide.
Nicole contends that the district court failed to give adequate we ight to this alleged conflict.

But a conflict of interest, standi ng alone, does not require reversal. Judge v. Metro. Life
Ins. Co. , 710 F.3d 651, 664 (6th Cir. 2013). Instead, a conflict is simply “another factor in evaluating the quality of [the plan ad ministrator’s] decisionmaking process.” Id. A claimant must do more than offer gene ral inferences of a conflic t based on self-interest. Id. But the only argument Nicole makes beyond such inferences is her contention that th e BAC did not consult with an independent medical prof essional before denying her appeal.
This argument is unavailing because a file-onl y review does not compel the conclusion that the Plan administrator acted improperly. See id. And, as the district court explained in its opinion, the Summit County Medical Examiner’s O ffice functioned as a de facto independent
medical examiner in this case. See Cultrona , 936 F. Supp. 2d at 851 n.9 (“[T]he medical examiner is a disinterested medical expert.”). Because Nicole’s conflict-of-interest argument is not supported by the record in this ca se, we find it without merit.

Nicole next contends that the BAC failed to perform a full and fair review of her claim. In particular, she asserts that (1) the BAC did not carry its burden of proving that Exclusion 12 applies, and (2) the BAC’s actions show that it was predisposed to deny her appeal from the start. Nicole argues that the BAC failed to determine whether Shawn was “deemed and presumed” to be intoxicated as a matter of law. According to Nicole, th e BAC improperly relied on Ohio’s drunk-driving statute. Nicole points to StarLine’s initial deni al letter, in which it explained that “the deceased’s blood level conten t [sic] was in excess of the level at which Ohio presumes intoxication as a matter of law.” Nicole contends that this language must refer to Ohio Revised Code (ORC) § 4511.19, which prohibits ope rating a motor vehicle while intoxicated.Nos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 7

But even if we assume that StarLine wa s referring to ORC § 4511.19 in its denial letter,
this does not show that the BAC acted arbitraril y or capriciously in deny ing Nicole’s appeal. See
Cook , 494 F. App’x at 608 (affirming the denial of benefits even though the plan administrator’s denial letter was “hardly a mode l of clarity”). The basic rati onale for denying Nicole’s claim— namely, Shawn’s intoxication and the resulting application of Exclusion 12—stayed the same throughout. See McClain v. Eaton Corp. Disability Plan , 740 F.3d 1059, 1065 (6th Cir. 2014) (holding that there was “no about face in the re ason Defendants denied” a claim where the basic rationale for denying the claim was consis tent) (internal quotation marks omitted).
For this reason, the cases relied on by Nicole for the proposition that the BAC employed shifting rationales are distinguishable. See, e.g. , Wenner v. Sun Life Assurance Co. of Can. , 482 F.3d 878, 880 (6th Cir. 2007) (holding that the deni al of benefits was ar bitrary and capricious where the claim was initially denied for failu re to provide documentation, but later denied because the claimant did not meet the policy’s defi nition of disabled). Nicole’s argument that the BAC employed shifting rationale s therefore lacks merit.
Nor did the district court err in concluding th at another Ohio statute supported the BAC’s decision to deny Nicole’s appeal. The district court held that Shawn was deemed to be intoxicated under ORC § 313.19, which provides that the “cause of deat h and the manner and mode in which the death occurred, as . . . incorpor ated in the coroner’s verdict and in the death certificate . . . , shall be the le gally accepted manner and mode in which such death occurred.” Cultrona v. Nationwide Life Ins. Co. , 936 F. Supp. 2d 832, 847–48 (N.D. Ohio 2013); see also Vargo v. Travelers Ins. Co. , 516 N.E.2d 226, 229 (Ohio 1987) (e xplaining that the coroner is “required to engage in quasi- judicial activity when inquiring into the cause of death”).
Nicole argues that ORC § 313.19 is inapplicab le because Exclusion 12 refers to the “law of the locale,” not Ohio state la w. And the “law of the locale,” Nicole contends, must mean the laws of Twinsburg, Ohio, which has no ordinan ce equivalent to ORC § 313.19. She notes that the phrases “applicable state law,” “laws of th e state,” and “state la w” appear throughout the Plan documents, so Nationwide must have been meant something ot her than Ohio state law when it used the phrase “law of th e locale” in Exclusion 12.Nos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 8

Nicole has pointed out several cases in wh ich federal courts have construed the word “locale” as referring to cities or counties. Nevertheless, the bulk of authority supports the opposite conclusion—that the phrase “law of the locale” means state law. See Republic Ins. Co. v. Banco de Seguros del Estado , No. 10 C 5039, 2013 WL 3874027, at *6 (N.D. Ill. July 26, 2013) (discussing the “law of th[e] locale” in reference to state law); Rotec Indus., Inc. v. Aecon Grp., Inc. , 436 F. Supp. 2d 931, 936 (N.D. Ill. 2006) (same); Coto Orbeta v. United
States , 770 F. Supp. 54, 56 (D.P.R. 1991) (same); Babcock v. Maple Leaf, Inc. , 424 F. Supp. 428, 433 (E.D. Tenn. 1976) (same).
Although Nicole’s proffered interpretation of th e phrase “law of the locale” is a rational one, it is equally rational to conclude that “law of the locale” means state law. See Morgan v. SKF USA, Inc. , 385 F.3d 989, 992 (6th Cir. 2004) ( holding that “equally rational” interpretations of a disputed term proffered by the plaintiff and the plan administrator were insufficient to show that the plan administrato r acted arbitrarily or capriciously). We are required to resolve a tie in favor of the Plan administrator. See id. Accordingly, Nicole’s argument that the phrase “law of the locale” cannot mean Ohio state law is without merit.

Nicole next asserts that th e “coroner’s re port does not support a legal finding that [Shawn] was deemed and presumed under the law of the locale to be int oxicated.” The language in the report, however, belies this assertion, stating that the manner of death was “[a]cute ethanol intoxication . . . ACCIDENT: Prolonged and extreme hypertension of neck and torso while
intoxicated.” Neither the BAC nor the district cour t erred in relying on th is report, particularly given that Nicole failed to offer any contrary evidence regarding the cause of Shawn’s death. See Vargo , 516 N.E.2d at 229 (holding that the “coroner’s report and death certificate . . . create a non-binding, rebuttable presumption” concerning the facts regarding a death). Nicole’s argument regarding the alleged insufficiency of the coroner’s report thus has no merit.
Finally, Nicole contends that the BAC acted arbitrarily and capri ciously by failing to consult an independent medical professional before denying he r appeal. She argues that ERISA’s implementing regulations and the BAC’s charter require such a consulta tion. As the district court explained, however , the ERISA regulations relied on by Nicole for this argument are inapposite. See Cultrona , 936 F. Supp. 2d at 849 (explaining thatNos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 9

“29 C.F.R. § 2560.503-1(h)(3) pertains only to gr oup health plans,” not to accidental-death policies) (internal quotation marks omitted). Mo reover, the BAC charter requires a consultation with a medical expert only in cas es involving a “medical issue.” Id. at 850. No disputed medical issue was present in this case because Nicole did not introduce any evidence to rebut the
conclusions contained in the coro ner’s report. The district cour t’s resolution of this issue was sound and Nicole offers no compelling reason fo r us to reach a contrary conclusion.

C. The district court did not abuse its discret ion in awarding Nicole a statutory penalty
Turning now to the BAC’s cross-appeal, we ex amine whether the district court erred in awarding Nicole $55 per day (for a total of $8,910) as a statutor y penalty for the BAC’s failure to timely provide her with a copy of the acciden tal-death policy upon written request. Nicole’s counsel, in a November 18, 2011 le tter, requested “all documents that you contend prove that Nationwide provided notice of Amendment No. 1 . . . and all documents comprising the administrative record and/or supporting Nation wide’s decision.” The BAC, however, did not provide Nicole’s counsel with a copy of the accidental-death policy until June 12, 2012. Pursuant to 29 U.S.C. § 1132(c)(1 ), the district court imposed an $8,910 penalty against the BAC as a consequence of this delay.
We review the imposition of a penalty under the abuse-of-discretion standard and any accompanying findings of fact unde r the clear-error standard. See Bartling v. Fruehauf Corp. , 29 F.3d 1062, 1068 (6th Cir. 1994) (“Because [ERI SA] expressly grants a district court discretion in imposing penalties for an employer’s failure to disclose, we review only for abuse of discretion.”); Hamilton v. Carell , 243 F.3d 992, 997 (6th Cir. 2001) (explaining that findings of fact in ERISA cases are “subject to a clearly erroneous st andard of review”).
The list of documents that a plan administrator must furnish to a participant or beneficiary upon written request is set forth in 29 U.S.C. § 1024(b)(4). These documents include a “copy of the latest updated summary, plan de scription, and the late st annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is . . . operated.” Id. If a plan administrator fails to respond to a request for one or more of the above documents within 30 days, then the district cour t may in its discretion impose a penalty against the plan admi nistrator of up to $110 per day.Nos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 10

29 U.S.C. § 1132(c)(1)(B); 29 C.F.R. § 2575.502c-1; see also Minadeo v. ICI Paints , 398 F.3d 751, 757 (6th Cir. 2005) (“Congress’ purpose in en acting the ERISA disclosure provisions was to ensur[e] that the individual participant knows exactly where he stands with respect to the plan.”) (internal quotation marks omi tted) (alteration in original).
The BAC argues that the district court erre d in construing Nico le’s broadly worded document request as including a request for a copy of the accidental-death policy. In making this argument, the BAC urges us to adopt the “clear- notice” standard, a standard that several of our sister circuits have adopted. Under this st andard, claimants seeking documents pursuant to § 1024(b)(4) must “provide clear noti ce to the plan administrator of the information they desire.” See Kollman v. Hewitt Assocs., LLC , 487 F.3d 139, 145 (3d Cir. 2007) (adopting the standard and collecting similar cases from the Second, Fifth, Seventh, and Tenth Circ uits). We see merit in the BAC’s argument and thus adopt the standa rd on a going-forward basis. As summarized in
Kollman , the key question under the clear-notice standa rd is whether the pl an administrator knew or should have known which documents were being requested. Id.

The clear-notice standard strikes a reasonabl e balance between a claimant’s right to timely receive plan-related documents upon re quest and the civil pe nalties facing plan administrators under § 1132(c) for excessive delay in providing those documents. See Fisher v. Metro. Life Ins. Co. , 895 F.2d 1073, 1077 (5th Cir. 1990) (explaining th at § 1132(c) “must be strictly construed” because it is a penalty provisio n). We further note that a plan administrator is free to place the burden of clarity squarely on the requester simply by replying to an ambiguous demand for § 1024(b)(4) documents with the admini strator’s own request for greater specificity.
With regard to the present case, we discern no abuse of discretion by the district court in imposing the statutory penalty in question. For one thing, the district court did not err by considering the circumstances su rrounding the document request. See Kollman , 487 F.3d at 145 (“Each decision depend[s] upon the circumstances of that case and no general rule can be formulated.”). Nicole’s counsel, true enough, broadly phrased the re quest as one for “all documents comprising the administrative record and/or supporting Nationwide’s decision.” Although such language would not pa ss the clear-notice test for most of the documents identified in 29 U.S.C. § 1024(b)(4), one is hard-pressed to believe that the BA C should not have knownNos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 11

that the accidental-death policy was the key document supporting its decision to deny Nicole’s claim. Moreover, the administrative record refl ects that the request was sufficiently clear for a StarLine employee to propose sending a “copy of the policy and amendment” to Nicole’s counsel. That employee, however, was instruct ed by a Nationwide employee to send only a copy of the amendment, not the underlying policy. See Cultrona , 936 F. Supp. 2d at 855 n.15 (citing the evidence of this exchange contai ned in the administrative record).

Under these circumstances, the district cour t did not abuse its discretion in concluding
that the BAC knew or should have known that th e policy was being reque sted as one of the documents supporting its decision to deny benefits in this case. See Anderson v. Flexel, Inc. , 47 F.3d 243, 248 (7th Cir. 1995) (“Courts have suggeste d . . . that an admini strator’s knowledge of surrounding circumstances or the information be ing requested may require a response to an otherwise general request.”). Accordingly, we re ject the BAC’s argument that the district court abused its discretion in imposing a statutory penalty under § 1132(c).

D. The district court did not abuse its discretion in awar ding Nicole less than the maximum penalty The final issue on appeal is wh ether the district court erred in awarding Nicole only $55 per day, rather than th e $110 per day she requested as a pena lty for the BAC’s delay in providing the policy in question. Section 1132(c) commits the amount of the penalty to the district court’s
sound discretion. See 29 U.S.C. § 1132(c)(1) (explaining that the court may, in its discretion, impose a penalty “up to” the statut ory limit). Here, the district court considered the lack of prejudice to Nicole in calculating the amount of the penalty. This consideration was proper. See
Moothart v. Bell , 21 F.3d 1499, 1506 (10th Cir. 1994) (noting that the “circuits are in general accord that neither prejudice nor injury are prere quisites to recovery under the penalty provisions of the statute,” but that “these ar e factors the district court may consider in deciding to exercise its discretion to award a penalty”).
Although Nicole argues that she did suffer prejudice as a result of th e BAC’s failure to timely send her a copy of the policy, her arguments on this point are perfunctory and unconvincing. The district court therefore did not abuse its discretion in awarding Nicole only $55 per day as a statutory penalty for the BAC’s delay.Nos. 13-3558/3585 Cultrona v. Nationwide Life Ins. Co. et al. Page 12

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.