IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50559

ELEANOR CROSE, Individually and as Permanent Guardian of Ronald 

Crose, 

 Plaintiff - Appellant

v.

HUMANA INSURANCE COMPANY, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Eleanor Crose appeals the district court’s summary judgment for 

Humana Insurance Company on her claims for breach of contract and unfair 

insurance practices. Because summary judgment was warranted, we 

AFFIRM.

FACTS AND PROCEDURAL BACKGROUND

On June 23, 2013, while Eleanor Crose attended a concert, her husband 

Ronald Crose ingested ecstasy. Ms. Crose rejoined her husband at around 

midnight at a friend’s home. When she arrived, Mr. Crose told her that he was 

nauseated and suffering from diarrhea; he also stated that he had experienced 

United States Court of Appeals

Fifth Circuit

FILED

May 23, 2016

Lyle W. Cayce

Clerk

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No. 15-50559

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a terrible headache earlier in the evening that felt like “his head was going to 

explode.” Later that night, Mr. and Ms. Crose went on a walk, after which Ms. 

Crose went to bed and Mr. Crose went to play music.

The next morning, Ms. Crose found her husband lying down in the 

backyard, non-responsive with his face covered in vomit. Ms. Crose called for 

an ambulance and told the operator that she believed that Mr. Crose had 

overdosed. Emergency services transported him to a nearby hospital. 

The emergency room doctor who initially treated Mr. Crose, Dr. Bogitch, 

provided an assessment, stating:

This is [a] gentleman who unfortunately, with very little past 

medical history, used [ecstasy] last night and was found down 

today with a large intraparenchymal hemorrhage with an unusual 

subarachnoid component as well as an entrapped ventricle and 

early uncal herniation.

Dr. Bogitch also ordered a urine drug screen, which came back positive for 

amphetamines (ecstasy), benzodiazepines (a prescription tranquilizer), and 

cannabinoids (marijuana). 

Another physician, Dr. Hinze, examined Mr. Crose; his report stated:

I suspect that [Mr. Crose’s stroke] is due to uncontrolled 

hypertension likely from his ecstasy ingestion . . . . [Ecstasy 

ingestion] would account for his diaphoresis, nausea, vomiting, 

diarrhea and could produce a hypertensive state, which would 

exacerbate if not initiate his [stroke].

Dr. Hinze’s report also noted that Mr. Crose rarely drinks alcohol and has a 

history of smoking marijuana and taking ecstasy, but using ecstasy was an 

“unusual event.” 

At all times relevant to this appeal, Mr. Crose had an individual health

insurance policy with Humana. Mr. Crose submitted a claim with Humana 

under the policy to cover the cost of medical services and treatments provided 

to Mr. Crose as a result of his stroke. Humana denied the claim, citing the 

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following exclusion in the policy: “Causation Exclusions . . . Loss due to being 

intoxicated or under the influence of any narcotic unless administered on the 

advice of a health care practitioner.” 

Ms. Crose filed suit claiming breach of contract, unfair insurance 

practices, and prompt payment violations under the Texas Insurance Code. 

Humana filed a motion for summary judgment, which the district court 

granted. Ms. Crose now appeals.

DISCUSSION

“We review a district court’s summary judgment de novo.” Health Care 

Serv. Corp. v. Methodist Hosps. of Dallas, 814 F.3d 242, 247 (5th Cir. 2016). 

We review the facts in a “light most favorable to the non-moving party.” 

Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016). 

Summary judgment is appropriate if the moving party shows “that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) 

(citing Fed. R. Civ. P. 56(a)). “A genuine issue of material fact exists when the 

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Crownover v. Mid-Continent Cas. Co., 772 F.3d 197, 201 (5th 

Cir. 2014).

I.

The parties agree that Texas law governs this case. Under Texas law, 

the elements of a breach of contract claim are: “(1) the existence of a valid 

contract; (2) performance or tendered performance by the plaintiff; (3) breach 

of the contract by the defendant; and (4) damages to the plaintiff resulting from 

that breach.” Hunn v. Dan Wilson Homes, Inc., 789 F.3d 573, 579 (5th Cir. 

2015) (citing Foley v. Daniel, 346 S.W.3d 687, 690 (Tex. App.—El Paso 2009, 

no pet.)), cert. denied, 136 S. Ct. 592 (2015). Generally, “for an insurance 

company to be liable for a breach of its duty to satisfy a claim presented by its 

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insured, the insured must prove that its claim falls within the insuring 

agreement of the policy.” Data Specialties, Inc. v. Transcont’l Ins. Co., 125 F.3d 

909, 911 (5th Cir. 1997). There is no dispute that the Croses are seeking 

benefits ordinarily covered by the Humana policy. Because the dispute is 

instead over the application of an exclusion, the burden shifts to Humana to 

show that the exclusion applies. Century Sur. Co. v. Hardscape Constr. 

Specialties, Inc., 578 F.3d 262, 265 (5th Cir. 2009). For the exclusion to apply, 

Humana must show that the term “narcotic” includes ecstasy and that Mr. 

Crose’s stroke was “due to . . . being under the influence” of ecstasy. We begin 

with the definition of “narcotic.” 

A.

“Insurance policies are controlled by rules of interpretation and 

construction which are applicable to contracts generally.” Nat. Union Fire Ins. 

Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). 

Because “narcotic” is not defined by the policy, we are tasked with determining 

whether the term has “a definite or certain legal meaning.” Texas Indus., Inc. 

v. Factory Mut. Ins. Co., 486 F.3d 844, 846 (5th Cir. 2007). In other words, the 

terms of an insurance policy must be given their plain and ordinary meaning 

unless there is evidence that the parties intended otherwise. Am. Nat’l Gen. 

Ins. Co. v. Ryan, 274 F.3d 319, 323 (5th Cir. 2001). But, when a term is 

susceptible to multiple reasonable interpretations, then it is ambiguous. See 

Potomac Ins. Co. of Illinois v. Jayhawk Med. Acceptance Corp., 198 F.3d 548, 

550-51 (5th Cir. 2000). If ambiguous, the term is to be “construed liberally in 

favor of the insured and strictly against the insurer.” Kelly Assocs., Ltd. v. 

Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596 (Tex. 1984). Because neither the 

Texas Supreme Court nor the Fifth Circuit has previously defined “narcotic” 

in insurance contracts, we must make an Erie guess to define the term. 

Amerisure Ins. Co. v. Navigators Ins. Co., 611 F.3d 299, 311 (5th Cir. 2010).

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Ms. Crose contends that the district court erred by finding that “narcotic” 

is not ambiguous and by rejecting her definitions of “narcotic,” derived from 

federal and state law, as well as pharmacological uses of the term, that she

submitted to the district court. Those definitions limit “narcotic” to drugs 

derived from a plant and classify ecstasy as a “hallucinogen” instead of a 

“narcotic.” Humana counters that Ms. Crose’s definitions are technical in 

nature, and therefore unreasonable. We agree with Humana.

Texas law dictates that the “terms [of an insurance policy be] given their 

ordinary and generally-accepted meaning unless the policy shows the words 

were meant in a technical or different sense.” Gilbert Tex. Const., L.P. v. 

Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010). This means 

that technical definitions of policy terms are unreasonable unless the policy 

provides otherwise. See, e.g., Horn v. State Farm Lloyds, 703 F.3d 735, 739 (5th 

Cir. 2012) (accepting the plain meaning of the terms “any” and “cases” and 

rejecting technical definitions of the terms as unreasonable); Am. Mfrs. Mut. 

Ins. Co. v. Schaefer, 124 S.W.3d 154, 158-59 (Tex. 2003) (rejecting a technical 

definition of the term “repair” as unreasonable). Concluding otherwise would 

“ignor[e] the policy[’s] language or giv[e] the contract[’s] text a meaning never 

intended.” Schaefer, 124 S.W.3d at 159 (internal quotations omitted). 

The district court found that the ordinary and generally-accepted 

meaning of narcotic is “[a] drug affecting mood or behaviour [sic] which is sold 

for non-medical purposes, esp. one whose use is prohibited or under strict legal 

control but which tends nevertheless to be extensively used illegally.” Neither 

party contends that the policy allows technical definitions of the term. 

Therefore, Ms. Crose’s definitions of “narcotic,” which are derived from state 

and federal statutes and pharmacological uses of the term, are unreasonable. 

The district court did not err when it applied the ordinary meaning of narcotic. 

See Dynegy Midstream Servs., L.P. v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 

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2009) (“A contract is not ambiguous simply because the parties disagree over 

its meaning.”).1

B.

Having defined “narcotic” to include ecstasy, we must now determine 

whether Humana met its burden to show that Mr. Crose’s stroke was “due to

. . . being under the influence” of ecstasy. But first we must decide which theory 

of causation is derived from the exclusion’s use of “due to.”

i.

In Utica National Insurance Co. v. American Indemnity Co., the Texas 

Supreme Court was tasked with interpreting “due to” in an insurance policy 

exclusion. 141 S.W.3d 198 (Tex. 2004). The court determined that “due to” is 

“more than simple cause in fact . . . [and] requires a more direct type of 

causation.” Id. at 203. While not specifically assigning a standard, the Texas 

Supreme Court did distinguish it from the lesser burden of causation derived 

from the phrase “arise out of” which requires only “but for causation.” Utica 

 

1 Ms. Crose also argues that the South Carolina Supreme Court’s decision defining 

narcotic to exclude methamphetamine in Hutchinson v. Liberty Life Insurance Co., 743 

S.E.2d 827 (S.C. 2013), is persuasive. We reject, however, another court’s interpretation of 

a term if that definition would cause a conflict with the law of the forum state. See, e.g., Sport 

Supply Group, Inc. v. Columbia Casualty Co., 335 F.3d 453, 462 n.8 (5th Cir. 2003). Applying 

Hutchinson to this case requires that we disregard Texas’s explicit command to apply the 

ordinary meaning of an undefined term absent evidence that the parties intended otherwise. 

Since no such evidence exists, we may not do so. 

Nor is Metropolitan Life Insurance Co. v. Main, 383 F.2d 952 (5th Cir. 1967), binding 

or persuasive. In Main, the primary issues were whether the insured’s death was accidental 

and whether any disease or mental infirmity contributed to the insured’s death. 383 F.2d at 

958. As Ms. Crose points out, the Main court did state that certain drugs were not narcotics. 

Id. But, this classification of the drugs appears in the opinion’s statement of facts and is not 

relevant to the exclusions being applied. In fact, it is unclear why the panel includes the 

statement that certain drugs are not narcotics or habit-forming drugs other than to be 

thorough. Thus, the statement is dicta, and not binding. See United States v. Lipscomb, 619 

F.3d 474, 481 n.5 (5th Cir. 2010) (King, J. concurring) (“We are free to disregard dicta from 

prior panel opinions when we find it unpersuasive.”). 

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National, 141 S.W.3d at 203 (internal citations and quotations omitted). 

Therefore “due to” calls for a more direct causal nexus than “but for” causation. 

Similarly, in Likens v. Hartford Life & Accident Insurance Co., we 

determined that an intoxication exclusion in an insurance policy required the 

insurance company to show that intoxication was a proximate cause of the 

excluded loss. 688 F.3d 197, 202 (5th Cir. 2012). In that case, the insured’s 

survivors argued that a fall precipitating the insured’s death could be 

attributed to the insured’s clumsiness, and that because intoxication could not 

be proven to be the sole cause of the fall, the exclusion should not apply. Id. at 

201. We disagreed and interpreted the exclusion, which stated that the policy 

did not cover injuries “sustained as a result of being legally intoxicated from 

the use of alcohol” to mean that the insurance company need only show that 

intoxication was a “significant” or “substantial” cause of the fall, not the only

cause. Id. at 202–03. We noted that because the standard of causation was not 

precisely defined, we would interpret the phrase “as a result of” to require 

proximate causation as this interpretation favored the insured. Id. at 202.

Reading Utica National and Likens together, the district court concluded 

that “due to” should be read as requiring a proximate cause analysis. We agree 

this is the appropriate standard of causation in this case. Although the Texas 

Supreme Court has not precisely defined the standard of causation for the term 

“due to” in an exclusionary clause, see Utica National, 141 S.W. 3d at 203, we 

follow our approach in Likens and interpret this phrase in a manner that favors 

the insured, and hold that “due to” requires a showing of proximate causation.2

 

2 Although the proximate standard of causation was not adopted by the Court of 

Appeals of Texas in Seitel Data, Ltd. v. Simmons, 362 S.W.3d 782, 792 (Tex. App.—

Texarkana 2012, no pet.), the court rejected the “tort theory” of proximate causation, which 

is not at issue in the present case. Rather, we refer to proximate cause in terms of its 

application within insurance law, where the foreseeability element is not required. See

Stroburg v. Ins. Co. of N. Am., 464 S.W.2d 827, 831 (Tex. 1971); 46 Tex. Jur. 3d Ins. Contracts 

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Humana must therefore show that Mr. Crose’s use of narcotics was a 

“significant” or “substantial” cause of his stroke, but not that it was the only 

cause.3 

ii.

We now turn to whether Humana met its burden to show that Mr. 

Crose’s stroke was “due to . . . being under the influence” of ecstasy. To meet 

this burden, Humana must show that the ingestion of ecstasy was a significant 

cause of Mr. Crose’s stroke. We conclude that Humana has done so in several 

ways.

First, there is ample evidence in the record that ecstasy can lead to a 

stroke. For example, an expert witness for Ms. Crose stated in his report that 

ecstasy causes hypertension and that “hypertension is the most common 

attributable risk factor” associated with strokes. The same report included

medical journal articles confirming that a short- and long-term side effect of 

ecstasy use is hypertension. A second expert report included testimony stating 

that the “use of ecstasy can increase the odds of suffering an ischemic stroke 

or intracerebral hemorrhages.” Humana’s expert also testified and included 

attachments to his report showing that ecstasy can cause a stroke.4 

Second, Mr. Crose’s medical records strongly suggest that his ingestion 

of ecstasy contributed to his stroke. The emergency room physician that 

 

& Coverage § 776. In addition, the court in Seitel was not interpreting an exclusionary 

provision of an insurance contract, wherein ambiguous terms should be interpreted so as to 

favor the insured. See Likens, 688 F.3d at 202; Kelly Assocs., Ltd. v. Aetna Cas. & Sur. Co., 

681 S.W.2d 593, 596 (Tex. 1984).

3 Ms. Crose alternatively argues that Humana has the burden to show that no other 

cause resulted in Mr. Crose’s stroke. This argument, however, necessarily fails because 

Humana need not show that ecstasy was the sole cause of Mr. Crose’s stroke. 

4 Ms. Crose also asserts that Humana failed to carry its burden on causation because 

it did not submit expert testimony showing that Mr. Crose’s stroke was caused by his ecstasy 

ingestion. Humana’s expert report, including attachments showing a causal connection 

between ecstasy use and strokes, conclusively rebuts this argument.

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treated Mr. Crose, Dr. Bogitch, stated in his assessment that Mr. Crose had 

“very little past medical history” and no family history of strokes. Dr. Bogitch 

also stated that Mr. Crose had used ecstasy the night before he was admitted, 

and arrived at the hospital with “a very large . . . hemorrhage.” Another 

physician, Dr. Hinze, “suspect[ed] that [Mr. Crose’s stroke was] due to 

uncontrolled hypertension likely from his ecstasy ingestion . . . [which] would 

account for his [symptoms] and could produce a hypertensive state, which 

would exacerbate if not initiate his [stroke].” Mr. Crose’s medical records show 

that an otherwise healthy man, with no medical or family history of strokes, 

took ecstasy, which led to hypertension and eventually a stroke. 

Finally, the temporal proximity between an otherwise healthy man 

taking ecstasy and then experiencing severe headaches and having a stroke is 

relevant proof of causation. See Guevara v. Ferrer, 247 S.W.3d 662, 667-68 

(Tex. 2007). The record therefore results in a clear causal line: 1) ecstasy 

causes hypertension, 2) hypertension is the leading cause of stroke, 3) Mr. 

Crose ingested ecstasy, 4) he then presented side effects of hypertension, and 

5) shortly after presenting these symptoms, Mr. Crose had a stroke which his 

doctors noted was caused by hypertension. Because it is undisputed that Mr. 

Crose used ecstasy prior to his stroke and his medical records show that Mr. 

Crose had no medical or family history of hypertension or strokes, the ingestion 

of ecstasy was a significant cause of Mr. Crose’s stroke.5

 

5 Humana argues that the Croses waived appeal of their unfair insurance practice 

claims because they failed to address them in their opening brief. The Croses contend that 

they are not required to specifically brief the unfair insurance practice claims because they 

are intertwined with the breach of contract claim. We have consistently held that failure to 

brief an issue in the opening brief abandons that issue on appeal. See, e.g., Akuna Matata 

Invs., Ltd. v. Texas Nom Ltd. P’ship, 814 F.3d 277, 282 n.6 (5th Cir. 2016); United States v. 

Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000). This rule is applied regardless of whether the 

claims are intertwined or related. Therefore, given our precedent, the Croses have waived 

their appeal of the district court’s dismissal of the unfair insurance practice claims. 

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CONCLUSION

The judgment of the district court is AFFIRMED.

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