United States Court of Appeals

For the Eighth Circuit

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No. 12-4047

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Sean Nichols

lllllllllllllllllllll Plaintiff - Appellee

v.

Unicare Life and Health Insurance Company

lllllllllllllllllllll Defendant

Acxiom Corporation Life and Accidental Death and Dismemberment Insurance Plan

lllllllllllllllllllll Defendant - Appellant

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No. 13-1033

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Sean Nichols

lllllllllllllllllllll Plaintiff - Appellee

v.

Unicare Life and Health Insurance Company

lllllllllllllllllllll Defendant - Appellant

Acxiom Corporation Life and Accidental Death and Dismemberment Insurance Plan

lllllllllllllllllllll Defendant
____________

 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: September 25, 2013

 Filed: January 16, 2014

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Before WOLLMAN, BEAM, and SMITH, Circuit Judges.

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BEAM, Circuit Judge.

UniCare Life and Health Insurance Company ("Unicare") appeals the district

court's grant of summary judgment in favor of Sean Nichols in this Employee 1

Retirement Income SecurityAct (ERISA), 29 U.S.C. §§ 1001 etseq. case. We affirm.

I. BACKGROUND

Nichols is the surviving spouse of Dana Nichols. Dana was employed by

Acxiom Corporation, and she was insured under the Acxiom Corporation Life and

Accidental Death and Dismemberment Insurance Plan (the "plan"). The plan is

funded by a policy underwritten by UniCare, and UniCare also serves as the claims

administrator. 

On May 3, 2010, Dana was found face down in bed, and upon being

transported to a nearby hospital, she was pronounced dead. The autopsy report

The Honorable Susan Webber Wright, United States District Judge for the

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Eastern District of Arkansas.

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indicated that her manner of death (natural, accidental, etc.) "could not be

determined," and her cause of death was mixed drug intoxication. The autopsy

reported that "[t]oxicology detected multiple drugs in the blood to include

citalopram/escitalopram, hydrocodone, oxycodone and loratadine. The atropine

detected is the result of terminal medical attention. No alcohol was detected." An

insurance record documenting Dana's prescription claims during the last twelve

months of her life show the following prescriptions and fill dates: Endocet 30-day

prescription last filled on April 27, 2010; Ambien 30-day prescription last filled on

April 3, 2010; levothyroxine, 30-day prescription last filled on April 3, 2010;

apap/codeine 2-day prescription last filled on December 29, 2009; diazepam 2-day

prescription last filled on December 29, 2009; and sertraline, 30-day prescription last

filled on October 12, 2009. Emergency personnel responding at the scene also

reported a prescription bottle for hydrocodone on the night stand with 12 pills

missing from it. As we read the administrative record, there is no information about

when this prescription was filled.2

Nichols filed a claim for accidental death benefits under the plan. By letter

dated February 9, 2011, UniCare denied Nichols' claim, stating that because the cause

of death was listed as "could not be determined," it had "no choice" but to deny the

claim. Nichols filed an administrative appeal and supplemented the record (which

previously consisted only of the autopsy report) with medical and prescription

records, as well as letters from himself and Dana's parents, recounting her recent

medical problems and her social history. Nichols recounted that since Dana's March

2010 car accident, she had difficulty sleeping, and was prescribed Ambien. He noted

that while on Ambien, Dana had been sleepwalking throughout the house and would

even eat something and not remember it in the morning. Dana's mother recounted

The district court noted that Dana's March 2010 car accident had exacerbated

2

her back pain, and further observed that the insurer's list of medications in the

administrative record would not include prescriptions filled without a corresponding

medical insurance claim. 

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that Dana was happily married with grown children; that Dana's son was newly

married; and Dana's daughter was set to begin nursing school. Dana's mother also

recounted that Dana waslooking forward to a scheduled lap band surgery to assist her

with weight loss and ease her back pain from the car accidents and that she was

generally looking forward to the future. The letter from Dana's father reiterated

Nichols' statements about Dana's sleepwalking behavior while on Ambien and her

general good outlook for the future. 

By letter dated September 2, 2011, UniCare denied Nichols' appeal, this time

stating two reasons for the adverse decision: (1) the manner of death waslisted on the

death certificate as "could not be determined," and (2) the plan excludes benefits for

death caused by intoxication. Nichols filed the instant action in district court

pursuant to ERISA. Upon Nichols' motion for summary judgment, the district court,

applying a de novo standard of review, found that Nichols was entitled to benefits

because the cause of Dana's death was more likely than not an accident. The district

court rejected UniCare's argument that its analysis of whether Dana's death was an

accident satisfied the standard set forth in Wickman v. Northwestern National

Insurance Co., 908 F.2d 1077 (1st Cir. 1990). 

UniCare argued to the district court that under Wickman, Dana's consumption

of numerous medications was an intentional act for which she would have

subjectively expected death to be a highly likely outcome. In this regard, UniCare

contended that since Dana had been consuming prescription medications for at least

a year, a reasonable interpretation of the evidence was that Dana had established a

tolerance to the medications she had been consuming in combination for years, and

that she must have taken more than the prescribed dosages on the date of her death. 

The district court rejected this argument and noted that UniCare's analysis wasflawed

because it "provides no indication that UniCare attempted to ascertain Dana Nichols's

subjective expectations or whether a reasonable person in her position would have

viewed her death as highly likely to occur." J.A. at 32. 

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With regard to the intoxication exclusion, the district court concluded that the

exclusion was not intended to cover Dana's situation. Because the plan defines

"intoxicated" as "legally intoxicated as determined by the laws of the jurisdiction

where the accident occurred," the district court found that a reasonable person in the

position of a plan participant would understand that the exclusion for intoxication

was intended to apply to death caused by committing acts, such as driving, while

intoxicated, not to situations where the immediate cause of death is ingestion of a

lethal mixture of prescription drugs. The district court cited Sheehan v. Guardian

Life Insurance Co., 372 F.3d 962, 967 (8th Cir. 2004) (finding that exclusion for loss

resulting from being under the influence of a controlled substance was "intended to

apply to death caused by, for example, driving while intoxicated, not to the accidental

ingestion of a controlled substance"), in support of its conclusion. J.A. at 33-34.

UniCare appeals and argues that the standard of review should be abuse of

discretion; that the district court impermissibly shifted the burden from Nichols

having to prove entitlement to benefits to UniCare having to disprove Nichols'

entitlement; and that the district court erroneously concluded that the intoxication

exclusion did not preclude an award of accidental death benefits. UniCare also

challenges the $22,220 attorney fee awarded to Nichols.

II. DISCUSSION

A. Standard of Review

ERISA provides that an employee may bring a civil action to recover benefits

due to him under the terms of an employee welfare benefit plan. 29 U.S.C. §

1132(a)(1)(B). Although the statute does not specify the scope of judicial review

applicable to ERISA claims, in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115 (1989), the Supreme Court held that a denial of benefits challenged under ERISA

is subject to de novo review unless the terms of the benefit plan give the plan

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administrator or fiduciary discretionary authority to determine eligibility for benefits

or to construe the terms of the plan. When a plan confers such discretionary

authority, the administrator's or fiduciary's decision is given deference and reviewed

under an abuse-of-discretion standard. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105,

111 (2008). However, when a conflict of interest exists because the plan

administrator is both the decision-maker and the insurer, "we take that conflict into

account and give it some weight in the abuse-of-discretion calculation." Carrow v.

Standard Ins. Co., 664 F.3d 1254, 1259 (8th Cir. 2012).

The district court found that the plan did not confer discretionary authority on

UniCare asthe plan did not contain the necessary discretionary language. The district

court focused on the language in the claims provisions, specifically the following:

"[a]ny benefits due under this plan shall be due once we have received proper, written

proof of loss, together with such reasonably necessary information we may require

to determine our obligation." We have previously found thatsimilar language did not

confer discretionary authority on the administrator. See Rittenhouse v. UnitedHealth

Group Long Term Disability Ins. Plan, 476 F.3d 626, 629 (8th Cir. 2007) (noting that

policy language stating that benefits would be paid when "we determine that proof

. . . is satisfactory" was ambiguous and did not confer discretion on plan

administrator).

UniCare, on the other hand, points us to Ferrari v. Teachers Insurance and

Annuity Ass'n, 278 F.3d 801 (8th Cir. 2002). In Ferrari, the claimant was initially

awarded disability benefits, and in order to keep receiving them on a long-term basis,

was required to submit written proof of continued total disability. We noted that the

plan language "that the employee must provide written proof of continued total

disability at reasonable intervals to be determined by TIAA and that such proof must

be satisfactory to TIAA" sufficiently conferred discretion on the administrator. Id.

at 806. UniCare argues that its plan has the same language, albeit in the section

addressing enrollment in the policy, not in the section addressing claims

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administration. UniCare contends that discretionary language anywhere in the plan

confers upon it the discretion necessary to obtain an abuse-of-discretion standard of

review for denial of claims. Nichols, on the other hand, contends that the

discretionary language must address claims administration or must grant general

discretion to construe plan terms in order for the plan to obtain an abuse-of-discretion

standard of review.

We agree with Nichols that the plan does not grant UniCare discretion to

determine eligibility for benefits or to generally construe the terms of the plan. 

Ferrari does not bear the weight UniCare places on it because the language from the

plan in that case gave the administrator the discretion to make decisions about

"continued total disability claims"–and the viability of a "continued total disability

claim" was the decision being challenged on appeal. Id. at 805-06. In the instant

case, the decision being challenged on appeal has nothing to do with Dana's

enrollment in the plan. The challenged decision is the administrator's denial of a

claim for accidental death benefits. The plan's language in the claims section, which

is lacking discretion-granting words according to our case law, see Rittenhouse, 476

F.3d at 629, is the most relevant. Nor is there a general grant of discretionary

authority to UniCare to construe all plan terms. Accordingly, we hold that the district

court correctly applied an abuse-of-discretion standard of review.3

Even if we were to hold that the plan granted UniCare discretion, the financial 3

conflict of interest that exists in this case would be taken into account, somewhat

ameliorating the abuse-of-discretion standard. See Carrow, 664 F.3d at 1259 (holding

that when a conflict of interest exists because the plan administrator is both the

decision-maker and the insurer, "we take that conflict into account and give it some

weight in the abuse-of-discretion calculation").

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B. Accidental Death Claim

Nichols argues UniCare erred in denying his claimfor accidental death benefits

with the stated rationale that the autopsy report listed the manner of death as "could

not be determined." Nichols submitted proof of his claim for accidental benefits in

the form of the death certificate, autopsy report, insurance medical records,

prescriptionsrecords, and evidence relevant to Dana'sstate of mind, her relationships

with family, and an upcoming scheduled surgery.

As noted, in front of the district court, UniCare advanced the Wickman test as

the vehicle for determining whether Dana's death was an accident, and asserted that

the facts of this case, as placed in the Wickman rubric, indicated that the incident was

not an accident. Under Wickman, an event is an accident if the decedent did not

subjectively expect to suffer "an injury similar in type or kind to that suffered" and

the suppositions underlying that expectation were reasonable. 908 F.2d at 1088. 

"The determination of what suppositions are unreasonable should be made from the

perspective ofthe insured, allowing the insured a great deal of latitude and taking into

account the insured's personal characteristics and experiences." Id. If the evidence

isinsufficient to determine the decedent'ssubjective expectation, the question isthen

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.

UniCare contends that there is insufficient subjective evidence of Dana's

expectations, and the objective evidence suggests that Dana's consumption of

numerous medications was an intentional act for which a reasonable person would

have expected death as the outcome. UniCare surmises that since Dana had been

taking thissame combination of medicationsfor several months, she became tolerant

to that level of medicine and subsequently took more than the prescribed dosage on

the night she died. UniCare argues that, objectively speaking, Dana would have

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viewed death as highly likely to occur in such a situation. This argument isstrikingly

similar to the one made by the plan administrator/insurer in the recent case of

McClelland v. Life Insurance Company of North America, 679 F.3d 755 (8th Cir.

2012). 

In McClelland, under the deferential abuse-of-discretion standard of review,

we held that the insurance company erroneously denied accidental death benefits to

the widow of the insured decedent who died while driving a motorcycle at high

speeds with an elevated blood alcohol level. As "evidence" of the deceased's state of

mind, the insurance company offered that McClelland had been educated on the

dangers of drinking and driving and should have known that death was highly likely

to occur in his circumstances. We held that this reasoning was an abuse of the

insurer's discretion, and a misapplication of the agreed-upon standard set forth in

Wickman, because better and more concrete evidence ofMcClelland's subjective state

of mind on the morning of the accident (submitted in the form of affidavits from

family, friends and witnesses on the day of the accident), wasthat he had no intention

to die and certainly did not think death waslikely to occur as he went on a social midSaturday morning motorcycle ride. Id. at 760-61.

Like the insurance company in McClelland, UniCare ignores the subjective

evidence submitted by Nichols, and instead makes leaps to get to the "objective"

conclusion it desires. There was no evidence in the record that Dana had developed

a tolerance to her medications or thatshe took all 12 of the missing hydrocodone pills

on the night of her death. No evidence suggests that Dana was suicidal. Similar to

the motorcycle driver in McClelland who had been successfully weaving in and out

of traffic at a high rate of speed for over six miles and therefore did not expect to die

that day, Dana had been taking this combination of prescribed medications, as

admitted by UniCare, for some period of time. There is no evidence whatsoever that

Dana intended to kill herself or thought it likely she would die on May 3, 2010. The

subjective evidence, in the form of letters and statements from her husband and

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parents, suggests otherwise. To the extent that her subjective mind set could still be

viewed as uncertain, the objective evidence tended to show that Dana had been

ingesting a combination of prescribed medication for some time, and under these

circumstances, a reasonable person with Dana's characteristics would not have

viewed death as highly likely to occur. Nor is there a medical determination that the

death was "not accidental" as alleged by UniCare. Dana's death falls squarely within

the meaning of accident, a word not otherwise defined in the policy, and as viewed

under the Wickman mandate to consider the situation from the "perspective of the

insured, allowing the insured a great deal of latitude and taking into account the

insured's personal characteristics and experiences." 908 F.2d at 1088. As the district

court aptly stated, "[i]n sum, all of the evidence indicates that Dana's death was the

unexpected result ofingesting prescribed medications." J.A. at 33. Accordingly, due

4

to all of the foregoing, we find that the district court correctly found that UniCare

erred in denying coverage for accidental death benefits.

Our conclusion is bolstered by the presumption against suicide that the

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Eleventh Circuit has recognized in the context of an ERISA case, holding that "[b]oth

the negative presumption against suicide and the affirmative presumption of

accidental death" advance ERISA's goals of protecting the interests of plan

beneficiaries and uniformity in plan administration. Horton v. Reliance Standard Life

Ins. Co., 141 F.3d 1038, 1041 (11th Cir. 1998). The Horton court held that these

goals were furthered by providing "uniformrules to resolve coverage questions where

the evidence of how the insured died is inconclusive." Id. The court also noted that

a majority of states recognize the presumption against suicide, id., and Arkansas is

one of those states. See Wood v. Valley Forge Life Ins. Co., 478 F.3d 941, 947 (8th

Cir. 2007) (recognizing the Arkansas "strong" presumption against suicide). There

would be nothing remarkable about applying such a presumption in an uncertaincause-of-death ERISA case, as ERISA plan administrators are bound to followfederal

common law, as informed by state common law. Shipley v. Ark. Blue Cross & Blue

Shield, 333 F.3d 898, 902 (8th Cir. 2003). However, we need not even rely on the

presumption because as noted above, Nichols has met his burden to establish

entitlement to Dana's accidental death benefits.

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C. Intoxication Exclusion

UniCare's final argument is that it can avoid paying benefits due to the plan's

intoxication exclusion. The exclusion states that no benefit will be paid for a death

that results from being intoxicated. "Intoxicated" is defined in the plan as "legally

intoxicated as determined by the laws of the jurisdiction where the accident

occurred." Because it is an exception to coverage, UniCare has the burden of proving

that the exclusion applies. Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 658

(8th Cir. 1992). We agree with the district court that UniCare did not meet this

burden. Arkansas law definesintoxication with reference only to the public offenses

of drunk driving and public intoxication. Jones Truck Lines, Inc. v. Letsch, 436

S.W.2d 282, 284 (Ark. 1969). Dana's death involved neither. We view the common

and ordinary meaning of the policy language as a reasonable person in the position

of the plan participant would have understood the words to mean. Adams v. Cont'l

Cas. Co., 364 F.3d 952, 954 (8th Cir. 2004). A reasonable plan participant would

have understood that the plan's intoxication exclusion is intended to apply to death

caused by committing acts, such as driving, while intoxicated; not to situations where

the immediate cause of death is ingestion of a lethal mixture of drugs that have been

prescribed for use by the decedent. See Sheehan, 372 F.3d at 967 (finding that

exclusion for loss resulting from being under the influence of a controlled substance

was "intended to apply to death caused by, for example, driving while intoxicated, not

to the accidental ingestion of a controlled substance"). The district court correctly

found that UniCare had not proven that the exclusion should be used to deny

coverage.

D. Costs and Fees

In a separate order, the district court awarded Nichols filing fees, prejudgment

interest and $22,220 in attorney fees. UniCare argues this was an abuse of the district

court's discretion. In deciding whether to award fees in ERISA cases, we are guided

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by the five factors set forth in Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir.

1984) (per curiam) ((1) degree of bad faith; (2) ability to pay; (3) deterrence; (4)

significance of the legal question; and (5) relative merits of the positions). The

district court's decision is reviewed for an abuse of discretion. Id. at 495. In

analyzing the factors, the district court found that a fee was warranted, and we find

that the district court did not abuse its discretion in so deciding. Further, the fee

awarded was reasonable.

III. CONCLUSION 

We affirm the district court.

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