Accidental Death Becomes Suicide When Insurers Dodge Paying Life Benefits

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Jane Pierce spent nine years struggling alongside her husband, Todd, as he fought cancer in his sinus cavity. The treatments were working. Then, in July 2009, Todd died in a fiery car crash. He was 46. That was the beginning of a whole new battle for Jane Pierce, this time with Todd’s life insurance company, MetLife Inc.

A state medical examiner and a sheriff in Rosebud County, Montana, concluded that Pierce’s death was an accident, caused when he lost control of his silver GMC pickup after passing a car on a two-lane road.

Their findings meant Jane was eligible to collect $224,000 on the accidental death insurance policy that Todd had through his employer, power producer PPL Corp. MetLife, however, refused to pay. The nation’s largest life insurer told Pierce on Dec. 8, 2009, that her husband had killed himself. The policy didn’t cover suicide, the insurer said, Bloomberg Markets magazine reports in its April issue.

“How dare they suggest such a thing,” says Pierce, 44, a physician assistant in Colstrip, a Montana mining and power production city of 2,346 people.

She says she’s insulted that the man who courageously battled his disease for a decade was accused by an insurance company of abandoning his wife and two sons — one a U.S. Marine, the other a National Guardsman — and giving up on his fight to live.

Pierce Sues

Pierce argued with MetLife for months. She supplied the insurer with the autopsy report, medical records and a letter from the medical examiner saying the death was accidental. MetLife still said no. Finally, in May 2010, she sued.

In July, a year after Todd’s death, MetLife settled and paid Pierce the full $224,000 due on the policy. The New York- based insurer, as part of the agreement, denied wrongdoing and paid Pierce no interest or penalties for the year during which it held her money.

Life insurers have found myriad ways to delay and deny paying death benefits to families, civil court cases across the U.S. show. Since 2008, federal judges have concluded that some insurers cheated survivors by twisting facts, fabricating excuses and ignoring autopsy findings in withholding death benefits.

Insurers can make erroneous arguments with near impunity when it comes to the 112.8 million life and accidental death policies provided by companies and associations to their employees and members. That’s because of loopholes in a federal law intended to protect worker benefits.

ERISA Loopholes

Under that law — the Employee Retirement Income Security Act, or ERISA — insurers can win even when they lose in court because they can keep and invest survivors’ money while cases are pending.

Congress enacted ERISA in 1974, after bankruptcies and union scandals caused thousands of employees to lose benefits. The law requires employers to disclose insurance and pension plan finances, and it holds company and union officials personally accountable for sufficient funding.

In order to achieve ERISA’s goals, federal courts have ruled that employees must surrender their rights to jury trials and compensatory and punitive damages if they sue an insurer for wrongfully denying coverage. Judges have reasoned that companies and insurers should have these protections to encourage them to continue providing benefits.

ERISA puts these issues under federal jurisdiction, so state regulators sometimes say they can’t help consumers.

‘Law Backfired’

“The most important federal insurance regulation of the past generation is ERISA,” says Tom Baker, deputy dean of the University of Pennsylvania Law School in Philadelphia. “If ever a law backfired for the public, ERISA is the perfect example.”

Life insurers do pay most claims in full — more than 99 percent of the time, according to data from the American Council of Life Insurers, a Washington-based trade group. Nobody keeps track of how often companies delay making those payments or how often they use spurious reasons.

As of 2009, the latest year for which figures are available, insurers in the U.S. were disputing an accumulated total of $1.3 billion in claims, the ACLI reports. Included in that amount was $396 million in death benefits turned down in 2009. In the same year, insurers paid out $59 billion, the ACLI reports.

What those numbers don’t measure is the trauma survivors like Jane Pierce face when wrongfully denied, says Aaron Doyle, a professor of sociology and criminology at Carleton University in Ottawa.

Most Don’t Sue

Most survivors don’t have the stamina and knowledge to file a lawsuit, says Doyle, who has spent a decade interviewing life insurance customers, employees and regulators in the U.S. and Canada. Often, survivors are dissuaded by their insurers from taking their grievances to state regulators or to court, Doyle says.

“The company tells the customer, ‘Oh no, that’s not an unusual practice, so you don’t really have a complaint,’” he says.

Insurers have an obligation to policyholders and shareholders to challenge death claims they consider fraudulent, says John Langbein, a professor at Yale Law School who co- authored Pension and Employee Benefit Law (Foundation Press, 2010). Insurers maintain a reserve of money to cover benefits.

‘Conflict of Interest’

“It’s their job to protect the insurance pool by blocking undeserved payouts,” Langbein says. That doesn’t give them the right to wrongly deny claims, he adds. “There’s a profound structural conflict of interest,” he says. “The insurer benefits if it rejects the claim. Insurers like to take in premiums. They don’t like to pay out claims.”

MetLife and Newark, New Jersey-based Prudential Financial Inc. declined to answer all questions on cases cited in this story, as well as all queries about ERISA and accidental death policies.

“We pride ourselves on delivering on our promises, paying claims in accordance with the terms of the policy and applicable law,” says Joseph Madden, a MetLife spokesman.

“Our insurance businesses’ primary focus is on paying claims,” says Simon Locke, a Prudential spokesman. “Contested claims represent a small fraction of the overall number of claims that are paid. Prudential’s claims professionals are trained to conduct an appropriate review and follow applicable laws, regulations and the terms of the policy.”

Locke says Prudential denied 33 claims for misrepresentation in 2010, while paying out on about 255,000 policies. He declined to say how many claims Prudential denied for other reasons.

$7.7 Trillion

Company-provided life insurance is a big business. Employers can offer either accidental death policies — which cover just fatalities an insurer deems to be an accident — or term life insurance, or both. Group policies in the U.S. have a total face value of $7.7 trillion, or about 40 percent of all life insurance in the nation, according to ACLI data.

ERISA contracts bring the industry about $25 billion in annual revenue. MetLife says it has 20 percent of the ERISA market.

So eager are the largest insurers to get these ERISA contracts that they sometimes cross a line, according to prosecutors in California and New York. MetLife and Prudential have made improper undisclosed payments to brokers to win business with companies, according to settlements.

The Settlements

MetLife and Prudential each paid $19 million to settle accusations by the New York Attorney General’s Office in 2006 that they had illegally paid brokers to get new corporate clients. In a similar case, MetLife paid $500,000 and Prudential spent $350,000 to settle with three California counties in 2008. In those cases, the insurers didn’t admit wrongdoing.

On April 15, 2010, in a San Diego case, MetLife admitted that it broke the law by paying a dealmaker to win insurance contracts, and it agreed with the U.S. Department of Justice to pay $13.5 million to avoid criminal prosecution.

“MetLife made illegal payments that should have been fully disclosed,” says Karen Hewitt, who was then the U.S. attorney in San Diego and is now a partner at Jones Day. “Because they were not, the transactions were criminal.”

MetLife’s Madden says the company improved its broker compensation reporting starting in 2004. Prudential says it cooperated with investigators and enhanced disclosure.

The money life insurers refuse to pay to people like Jane Pierce is emblematic of how the industry is increasingly making efforts to delay paying out benefits. In the past two decades, insurers have made a common practice of keeping money owed to survivors in their own investment accounts, even after claims are approved.

Withholding Benefits

Instead of sending lump-sum checks to survivors, companies send them “checkbooks.” More than 130 insurers held $28 billion, as of July 2010, owed to families in these so-called retained-asset accounts.

Prudential, which has a contract with the U.S. government to provide life insurance to 6 million soldiers and their families, has sent such “checkbooks” to survivors requesting lump sums since 1999. MetLife uses the same system for payments to survivors of the 4 million federal employees it covers.

In September, seven weeks after Bloomberg Markets magazine reported that Prudential was sending “checkbooks” to families of those killed in combat, the U.S. Department of Veterans Affairs changed its policy and required that Prudential pay a lump sum when survivors make such a request.

Jane Pierce’s Battle

Jane Pierce’s battle with MetLife began two months after her husband died. Todd Pierce, a power plant mechanic for Allentown, Pennsylvania-based PPL, was diagnosed in 1999 with a skin cancer called squamous cell carcinoma, in his nasal cavity. The treatment of the disease itself was a success. Within two years, he was cancer-free.

During the next eight years, Todd had more than 40 surgeries to rebuild his jaw and palate following his medical therapies.

“He was a fighter,” Jane says.

On July 5, 2009, Todd was at a family reunion in Bismarck, North Dakota, 350 miles (560 kilometers) east of Colstrip. While there, he made plans to go pheasant hunting three months later with his father, Donald, and elk hunting with an old friend after that.

“He had a lot planned,” Jane says.

It was sunny and hot that day as Todd drove home. He had been on the road for more than four hours when, at 5:25 p.m., 18 miles north of Colstrip, he lost control of his pickup on Highway 39, according to state police records. The vehicle rolled down an embankment and burst into flames.

Letters and Calls

He died of smoke inhalation, according to the autopsy report. No one else was hurt in the accident.

A month later, MetLife sent Jane Pierce a “checkbook” for her to tap the $224,000 from Todd’s term life insurance policy through PPL. She didn’t receive any form of payment on Todd’s accidental death policy. Instead, for four months, MetLife officials flooded Jane with letters and phone calls.

They asked her to send them the state’s accident report, the death certificate, toxicology reports, medical records from 20 doctors and Todd’s drug prescription files.

Jane, who lives in a three-bedroom ranch house filled with framed photos of Todd and her sons, says she did everything she could to get MetLife all the facts. She didn’t know what the company was after and says she felt the insurer was trying to wear her down.

‘Misconstruing Information’

“I was just so frustrated,” she says. “MetLife was taking and misconstruing information to see if I would give up.”

At one point, a MetLife employee told her by telephone that Todd’s medical files showed he had toxic levels of Tramadol, a pain reliever, in his body when he died. Jane told him that a doctor had prescribed the drug for Todd.

At Jane’s request, Thomas Bennett, Montana’s associate medical examiner, explained the high readings of the pain medicine to MetLife.

“This Tramadol elevation is an artifact of the severe damage Mr. Pierce’s body received following the crash and is not a result of taking sky-high levels of the drug,” Bennett wrote. He said the drug wasn’t the cause of death.

Jane recounts the ordeal as she sits at her kitchen table with Debra Terrett, a family friend. Laid out before them are stacks of neatly organized health and insurance file folders.

“She not only lost Todd,” Terrett says. “Every time she had to go through the paperwork, she had to walk through losing him again.”

The Denial

The toughest day turned out to be Dec. 8, 2009. That’s when MetLife sent her an unsigned letter containing this sentence: “We will not pay benefits for any loss caused or contributed to by intentionally self-inflicted injury.” MetLife concluded that Todd had killed himself taking an overdose of Tramadol.

Jane says she was dumbfounded. She cried for days.

“It’s bogus,” she recalls thinking. “How can a responsible company possibly lie in such a terrifying way?”

Not only was Todd an upbeat man who had defeated a dreadful disease, he also opposed suicide as a matter of faith, Jane says. Todd and Jane attended St. Margaret Mary Catholic Church every Sunday, and they were members of a Bible study group.

“After a suicide in our town, Todd and I used to talk about it,” Jane says. “As Catholics, we agreed that was no way to heaven.”

A co-worker referred Jane to a lawyer, Don Harris, in Billings, Montana. Under ERISA, Harris had to first file an appeal directly with MetLife, which the insurer ignored, Harris says. Pierce sued the company in federal court in Billings for breach of contract in May 2010.

‘Very Quickly’

The insurer hired a local Montana lawyer who rebuffed Jane again, six weeks later. Harris says he had a rational telephone call with the lawyer about the facts.

“Very quickly, he realized that they didn’t have a leg to stand on,” Harris says. After that, MetLife agreed to pay out the full policy amount. The case never went to trial.

Because ERISA prevents compensatory and punitive damages, Pierce wasn’t entitled to receive anything more. Harris — who was paid a fee of $4,500 for his seven months — estimates that a jury not bound by ERISA would have awarded punitive damages of more than $1 million, or 5 to 10 times the death benefit.

“They accused her husband of committing suicide, which is outrageous,” he says. “They had no facts to support it. They just literally made it up.”

‘Nothing We Can Do’

Pierce never requested help from Montana’s insurance department. If she had, she would have been turned away, says Amanda Roccabruna Eby, a spokeswoman. She says the agency can’t assist people like Pierce because of ERISA’s federal preemption.

“There’s nothing we can do,” she says. “We don’t have any authority.” The department doesn’t even track ERISA complaints.

Prudential used the ERISA shield when it denied payment to the widower of a middle school teacher in Rochester, New York. Lois Brondon died of a heart attack at age 49 while refereeing a soccer game in May 2007.

The company refused to pay her husband, Christian, the $50,000 death benefit, saying the educator had failed to disclose her “heart trouble” when she applied for insurance.

Christian, who knew his wife had no history of a heart condition, sued Prudential in U.S. district court in Rochester.

“Mrs. Brondon had absolutely no symptoms referable to cardiac disease or heart trouble,” Judge Michael Telesca ruled on Nov. 9, 2010. He said her records showed common and mild thickening of the aorta that required no medical treatment and didn’t limit her activities in any way.

False Grounds

The judge said she’d been truthful on her application for insurance and ordered Prudential to pay the full $50,000.

The judge said Prudential’s reasoning created false grounds the company could use to wrongfully deny death benefits to others.

“Indeed, under such a scenario, only Prudential would be allowed to define what constitutes ‘heart trouble,’” the judge wrote.

Three weeks later, a judge in Lexington, Kentucky, ruled on a case that shows how inventive insurers can be in their denials — even to the point of invoking drunk-driving laws when the person who died wasn’t in a car.

U.S. District Court Judge Joseph Hood ruled that Prudential had wrongly denied a $300,000 accidental death benefit to the family of Ernest Loan.

Loan, a medical sales representative for Bayer AG, fell down a staircase in his house after drinking three glasses of wine on June 29, 2006, according to court records. Prudential told his wife, Mimi, in a Nov. 7, 2006, letter that 53-year-old Ernest was drunk by state driving intoxication standards.

Court Reversal

The Loan family sued Prudential in January 2008. Hood initially dismissed the case, saying Prudential’s argument was sufficient under ERISA guidelines. The judge was reversed by the Sixth Circuit Court of Appeals, which said drunk-driving law doesn’t outlaw conducting chores around the house.

“A legal definition specifically intended to apply to someone who is driving a motor vehicle is not rational as applied to someone who is in his home and is not operating machinery,” the court wrote.

On Nov. 30, 2010, Hood ordered Prudential to pay the family $300,000.

The threshold for what judges will accept as evidence in an ERISA case can be so low that an insurer can use Internet searches and not interview witnesses.

Pfizer Employee

Brad Kellogg, an employee of Pfizer Inc., died in September 2004 when he drove his Dodge Caravan into a tree in Merced, California. MetLife paid his wife, Cherilyn, $443,184 under Kellogg’s term life policy. The insurer then received a letter from Stephen Morris, Merced County’s deputy coroner.

“Mr. Kellogg died as a result of traumatic injuries sustained in a motor vehicle accident,” Morris wrote. “His death is considered to be accidental.”

MetLife refused in November 2005 to cover his $438,000 accidental death policy, saying Kellogg’s death was caused by a seizure while driving. The insurer referred to a police report citing an eyewitness to the crash.

“It appears that Mr. Kellogg may have possibly had a seizure,” police wrote.

Cherilyn wrote to MetLife, disputing its conclusion, on Jan. 13, 2006. MetLife again refused to pay.

She sued in U.S. District Court in Salt Lake City on July 26, 2006, for breach of contract. MetLife didn’t provide medical evidence and didn’t specify what kind of seizure, court records show.

‘The Low End’

Judge Dale Kimball found that MetLife’s medical research was limited to Internet searches. The company failed to interview witnesses, the coroner, the police or responding paramedics and didn’t obtain Kellogg’s medical records, the judge wrote.

Even with those findings, Kimball dismissed the case. He said the insurer met the standard of proof under ERISA.

“The court need only assure that the administrator’s decision falls somewhere on the continuum of reasonableness — even if on the low end,” the judge wrote.

The U.S. Court of Appeals for the 10th Circuit reversed that decision in December 2008.

“MetLife wholly ignored Kellogg’s counsel’s request for documentation,” the court wrote. “The car crash — not the seizure — caused the loss at issue, i.e. Brad Kellogg’s death.”

Kimball then ordered the insurer to pay the full face value of the accidental death policy, as well as $75,377 in legal fees and 10 percent interest.

Medical Errors

Under ERISA, insurers have also been able to dispute the nature of deaths that involve medical errors. In February 2007, Trudy Barnes, a 31-year-old housewife in Wills Point, Texas, had elective surgery for scoliosis, an abnormal curvature of the spine.

During the procedure at Baylor Regional Medical Center in Plano, an anesthesiologist incorrectly inserted a catheter into her chest causing massive internal bleeding, a medical examiner found. She died two days later.

Barnes’s husband, Clint, an aircraft mechanic, had purchased an American International Group Inc. accidental death insurance policy for Trudy in 2004. The coverage came through a group plan from his employer, L-3 Communications Holdings Inc., a New York-based company that maintains Air Force planes.

It was Trudy’s only life insurance policy.

AIG sent a letter to Clint on Sept. 6, 2007, saying it wouldn’t pay out on the policy.

‘We Regret’

“This is an accident-only policy and does not cover sickness or disease,” AIG, then the world’s largest insurer, told Clint in a letter. “We regret that our decision could not be favorable.”

Clint Barnes says he couldn’t believe an insurer could make up such an excuse.

“How could they say that when the death certificate says it’s an accident?” he asks. He needed $16,000 for his wife’s funeral, he says, and he expected to get the money from her insurance.

Barnes sued AIG for breach of contract in July 2008 in New York. His lawyer, Michael Quiat, says insurers face no risk when denying claims under ERISA.

“From a business standpoint, it makes perfect sense for them,” he says.

On Feb. 4, 2010, U.S. District Court Judge Denny Chin granted Barnes’s motion for summary judgment, meaning he found the facts against AIG so overwhelming that there was no need for a trial.

‘Arbitrary and Capricious’

“This was an unintentional, unexpected, unusual and unforeseen event — an accident,” the judge ruled. “AIG’s determination to the contrary must be set aside as arbitrary and capricious.”

AIG paid Barnes the $148,000 death benefit, along with unspecified interest and attorney fees of $50,533. New York- based AIG spokesman Mark Herr declined to comment on the case.

“It is AIG’s practice to conduct a good faith review of all claims submitted to determine whether a particular claim is covered,” Herr says. “If a claim is not covered by the policy in question, we do not pay it.”

Barnes says he can see why life insurers would routinely deny legitimate claims.

“They know the average person doesn’t know what to do,” he says. “They figure you’re the little guy. Just pay us your money, and we’ll keep it.”

One of the highest-profile cases of an insurer refusing to pay a death benefit claim involved television correspondent David Bloom. He reported live from Iraq for NBC News for 18 days in 2003.

‘Trauma Plates’

He spent up to 20 hours a day sitting with his knees bent, jamming his 6-foot (1.8-meter) frame into a 2-foot-by-3½-foot space inside an M88 tank recovery vehicle, says his cameraman, Craig White.

“We were unable to straighten our legs, and we weren’t able to stand,” White says. “Added to this, we were required to wear chemical gear, flak jackets with trauma plates and helmets.”

On April 2, 2003, Bloom hurt his left foot leaping down from the vehicle to the sand, White says. Four days later, the journalist collapsed and died. He was 39.

A blood clot from his leg, called a deep vein thrombosis, had traveled through his bloodstream to his lungs, causing a fatal pulmonary embolism, his autopsy report says.

MetLife, which provided insurance for General Electric Co., then the parent company of NBC, paid Bloom’s wife, Melanie, $2.9 million on his term life policy. The insurer refused to pay on Bloom’s $1.2 million accidental death policy.

MetLife’s Doctor

In a denial letter dated July 23, 2003, MetLife said Bloom had died because his genetic background had put him at three to six times greater risk for a deep vein thrombosis than the average person. MetLife relied on Clayton Hauser, a St. Petersburg, Florida, family physician.

Hauser is the same doctor who in 1994 performed a drug test that resulted in a new employee at Bankers Insurance Group losing her job because of what she ate for breakfast. The insurer dismissed Julie Carter after Hauser determined she had tested positive for morphine.

Actually, Carter was clean; she’d just eaten two poppy seed bagels. Carter sued Bankers under a federal law protecting workers wrongly accused of drug use. She won $859,000 from the insurer.

“That’s not my fault,” Hauser says. “That’s what the lab reported. I collected a urine sample.”

Bloom’s Experts

In the Bloom case, Abraham Jaros, Melanie’s attorney, asked three medical experts to examine Bloom’s death, and each determined it was accidental. Kenneth Hymes, a professor at New York University School of Medicine, concluded that MetLife was wrong to blame Bloom’s genes for his death.

“That would be like saying the cause of a fire was oxygen rather than gasoline or a match,” Hymes wrote on Nov. 18, 2003. “Almost every person has some genetic mutation. Mr. Bloom had this gene mutation for 39 years, traveled extensively on airplanes with cramped conditions and experienced no problems.”

Melanie Bloom sued MetLife in federal court in New York in July 2004. The company settled for an undisclosed amount in October 2005. Melanie declined to comment in detail.

“Given the painful and deeply personal nature of this matter, I am not able to participate,” she says.

In Colstrip, Jane Pierce says the odds are stacked against families when insurers wrongfully deny benefits.

“I think it’s just a racket,” she says.

Sitting at her kitchen table, she recalls how her husband’s health had been improving just before his death and how she and Todd were looking forward to skiing in the winter. Two years after Todd died, his voice is still on their home answering machine.

Jane says she got the strength to fight a life insurance company from Todd, who would never give up.

“He’d amaze me,” she says.


17 thoughts on “Accidental Death Becomes Suicide When Insurers Dodge Paying Life Benefits”

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  3. “Probably it is true to say that in the strictest sense and dealing with the region of physical nature there is no such thing as an accident. On the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of accident insurance.” Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 499 (1934) (Cardozo, J., dissenting) (quotations, citations omitted).

    Plaintiffs Ronald and Sandra LaAsmar’s adult son Mark had accidental death insurance as part of an employee benefit plan governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461. In this case, we must decide whether Mark LaAsmar’s death, in a one-vehicle crash, was the result of an “accident” covered under the plan. Defendant Metropolitan Life Insurance Company (“MetLife”), the plan’s administrator, denied the LaAsmars’ claim for accidental death benefits because, at the time of the crash, Mark LaAsmar’s blood alcohol level was almost three times the limit permitted under Colorado law. The district court overturned that decision. Having jurisdiction under 28 U.S.C. § 1291 and reviewing MetLife’s denial of benefits de novo, we AFFIRM.


    Mark LaAsmar began working for Phelps Dodge Corporation in January 2004. Through Defendant Phelps Dodge Corporation Life, Accidental Death and Dismemberment and Dependent Life Insurance Plan (“Plan”), LaAsmar obtained both life insurance and accidental death and dismemberment (“AD&D”) coverage. The Plan contracted with Defendant Metropolitan Life Insurance Company (“MetLife”) to provide these benefits; MetLife was also the Plan’s claims administrator.

    According to the terms of that Plan, Mark LaAsmar’s AD&D insurance provided “additional security by paying [his] beneficiary a benefit in addition to life insurance if [he] die[d] as a result of an accident.” (Aplt. App. at 81.) The accident had to be “the sole cause of the injury,” “the sole cause of the covered loss,” and “[t]he covered loss [had to] occur[] not more than one year after the date of the accident.” (Id. at 82.)

    In the early morning hours of July 25, 2004, LaAsmar died in a single-vehicle crash in Grand County, Colorado. His death certificate identified him as the “apparent driver” of the vehicle, a pickup truck owned by LaAsmar. (Id. at 179.) The vehicle’s other occupant, Patrick O’hotto, also died in the crash. The Colorado State Patrol report on the incident indicated that, at the time of the crash, LaAsmar’s truck was traveling sixty miles per hour on a straight two-lane rural road where the posted speed limit was forty miles per hour. The truck traveled off the right side of the road and rolled four and one-quarter times. Neither occupant was wearing a seat belt; they were both ejected from the vehicle and were pronounced dead at the scene. LaAsmar’s death certificate indicated that the “immediate cause” of his death was “[h]ead and internal injuries” which were due to “[b]lunt force trauma” as a consequence of an “MVA,” or motor vehicle accident. (Id. at 179.) It was the opinion of the Colorado state trooper investigating the crash that alcohol was involved. And the toxicology report indicated that LaAsmar had a blood alcohol content (“BAC”) of 0.227g/100 ml, which is almost three times Colorado’s legal limit of .08, see Colo. Rev. Stat. §42-4-1301(2)(a).

    Mark LaAsmar’s parents, Plaintiffs Ronald and Sandra LaAsmar, were his beneficiaries. They filed a claim with MetLife for life and AD&D benefits. MetLife paid the LaAsmars life insurance benefits, but denied AD&D benefits for several reasons: 1) because Mark LaAsmar’s extreme intoxication contributed to the crash, the motor vehicle “accident” was not the “sole cause” of his death; 2) because the crash was the reasonably foreseeable result of driving while intoxicated, it was not an “accident” covered under the Plan; and 3) these circumstances fell within the Plan’s exclusion from AD&D coverage for a “loss caused by or contributed to by . . . [i]njuring oneself on purpose” (Aplt. App. at 83).

    The LaAsmars then filed suit for breach of contract in Colorado state court, naming both the Plan and MetLife as defendants. Defendants removed the action to federal court, asserting ERISA preemption; the parties now agree that ERISA governs the lawsuit, and we therefore construe the LaAsmars’ suit as a private civil enforcement action to recover benefits under a plan, pursuant to 29 U.S.C. § 1132(a)(1)(B).*fn1 Both sides moved for summary judgment, stipulating that “no trial [was] necessary and that the Court should determine the Plaintiffs’ claim based solely upon the administrative record before the Court.” (Aplt. App. at 39).*fn2 Reviewing de novo MetLife’s decision to deny AD&D benefits, the district court reversed that determination after concluding, among other things, that Mark LaAsmar’s crash did constitute an “accident” under the Plan. (Id. at 47-48.)

    In appeal No. 07-1267, MetLife and the Plan timely appeal the district court’s order requiring that accidental death benefits be paid to the LaAsmars. The LaAsmars cross-appeal, No. 07-1286, from the district court’s failure to rule on their requests for an award of attorney’s fees and prejudgment interest.


    A. Standard of Review

    We review summary judgment orders de novo, using the same standards applied by the district court. See Kellogg v. Metro. Life Ins. Co., 549 F.3d 818, 825 (10th Cir. 2008). Where, as here, the parties in an ERISA case both moved for summary judgment and stipulated that no trial is necessary, “summary judgment is merely a vehicle for deciding the case; the factual determination of eligibility for benefits is decided solely on the administrative record, and the non-moving party is not entitled to the usual inferences in its favor.” Bard v. Boston Shipping Ass’n, 471 F.3d 229, 235 (1st Cir. 2006) (internal quotation omitted). Further, we accord no deference to the district court’s decision. See Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380 (10th Cir. 1992).

    “Like the district court, we must first determine the appropriate standard to be applied to [MetLife’s] decision to deny benefits.” Weber v. GE Group Life Assurance Co., 541 F.3d 1002, 1010 (10th Cir. 2008). We determine de novo what that standard should be. See Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 1315 (10th Cir. 2009).

    “[A] denial of benefits” covered by ERISA “is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where the plan gives the administrator discretionary authority, however, “we employ a deferential standard of review, asking only whether the denial of benefits was arbitrary and capricious.” Weber, 541 F.3d at 1010 (internal citation, quotation omitted). Under this arbitrary-and-capricious standard, our “review is limited to determining whether the interpretation of the plan was reasonable and made in good faith.” Kellogg, 549 F.3d at 825-26 (internal alterations, quotations omitted). As the party arguing for the more deferential standard of review, it is MetLife’s burden to establish that this court should review its benefits decision at issue here under an arbitrary-and-capricious standard. See Gibbs ex rel. Estate of Gibbs v. CIGNA Corp., 440 F.3d 571, 575 (2d Cir. 2006).

    1. Whether Procedural Irregularities Warrant de Novo Review

    The district court held that the terms of the Plan did not delegate discretion to MetLife to make benefits decisions.*fn3 This presents a difficult question, but one we need not decide. Assuming, without deciding, that the Plan vested MetLife with such discretion, there were “procedural irregularities” here-MetLife’s failure to comply with ERISA-mandated time limits in deciding the LaAsmars’ administrative appeal-that require us to apply the same de novo review that would be required if discretion was not vested in MetLife.

    The LaAsmars filed their claims with MetLife on September 8, 2004, seeking life and AD&D benefits. MetLife initially denied the claim for AD&D benefits in a letter dated October 19, 2004.

    The Plan explicitly provided that the LaAsmars could administratively appeal that decision to MetLife, giving them sixty days from the receipt of the initial denial to do so. The LaAsmars timely sought an administrative appeal with MetLife in a letter dated December 7, 2004.

    The Plan further provided that, having received a request for an administrative appeal, MetLife “will review [the] claim and write to [the claimant] with its final and binding decision within 60 days of receiving [the] review request letter,” or in this case, by approximately February 4, 2005.*fn4 (Aplt. App. at 89.)

    The Plan’s sixty-day deadline for MetLife to decide the LaAsmars’ administrative appeal stems from ERISA’s requirement that, “[i]n accordance with regulations of the Secretary [of Labor], every employee benefit plan shall . . . afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.” 29 U.S.C. § 1133(2); see Aetna Health Inc. v. Davila, 542 U.S. 200, 220 (2004). The Secretary’s regulations implementing that “reasonable opportunity” for review obligation require, among other things, that “the plan administrator . . . notify a claimant . . . of the plan’s benefit determination on review within a reasonable period of time, but not later than 60 days after receipt of the claimant’s request for review by the plan.” 29 C.F.R. § 2560.503-1(i)(1)(i) (2002).

    In this case, however, MetLife did not decide the LaAsmars’ administrative appeal until May 26, 2005, 170 days after they had sought review, or more than three times as long as permitted under the terms of the Plan and the ERISA regulations.*fn5

    This court has on several occasions reviewed a benefits denial de novo, notwithstanding the fact that the Plan afforded the administrator discretion to make benefits determinations, where there were procedural irregularities in the administrator’s consideration of the benefits claim. Applying an earlier version of 29 C.F.R. § 2560.503-1(h)(4) (1998), this court first applied de novo review based upon the insurer’s breach of its duty to deliver a timely administrative decision in Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 631 (10th Cir. 2003).

    In Gilbertson, the insurer never decided the claimant’s administrative appeal. See id. at 628-29. Notwithstanding that fact and well after the expiration of the sixty-day time limit, the claimant filed suit under ERISA challenging the denial of her claim. See id. at 629-30. The claimant did so relying on the version of 29 C.F.R. § 2560.503-1(h)(4) in effect at that time, which provided that when an administrator’s appeal decision was not timely furnished, the claim would be “deemed denied.” Gilbertson, 328 F.3d at 629-30. In that case, despite the fact that the terms of the plan at issue vested the insurer with discretion to determine benefits, we reviewed the Plan’s denial of benefits de novo because “the administrator’s ‘deemed denied’ decision [occurred] by operation of law rather than [by the administrator’s] exercise of discretion.” Id. at 631. Gilbertson, thus, held that “deferential review,” where it was otherwise warranted, only applies “in those instances where an administrator’s decision is an [actual] exercise of ‘a discretion vested in [it] by the instrument under which [it] act[s].'” Id. (quoting Firestone, 489 U.S. at 111 (internal quotations and emphasis omitted)). Gilbertson’s holding was based on the sensible notion that an ERISA “plan administrator is not entitled to the deference of arbitrary and capricious review when [the administrative] appeal[] [was] ‘deemed denied’ because the administrator made no decision to which a court may defer.” Finley v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 379 F.3d 1168, 1173 (10th Cir. 2004).

    The Secretary of Labor revised 29 C.F.R. § 2560.503-1, effective in 2002, and that revised version of this regulation applies here. The revision eliminated the “deemed denied” language and now the regulation instead provides that, [i]n the case of the failure of a plan to establish or follow claims procedures consistent with the requirements of this section, a claimant shall be deemed to have exhausted the administrative remedies available under the plan and shall be entitled to pursue any available remedies under section 502(a) of the Act [29 U.S.C. § 1132(a)] on the basis that the plan has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim.

    29 C.F.R. § 2560.503-1(l) (2002) (emphasis added). This regulation, like its predecessor, protects a claimant by insuring that the administrative appeals process does not go on indefinitely. See Gilbertson, 328 F.3d at 635-36.

    Recently, this court, applying the revised 29 C.F.R. § 2560.503-1(l) but relying on the reasoning first expressed earlier in Gilbertson, employed a de novo standard of review in another case where the administrator never issued any decision on the claimant’s administrative appeal. See Kellogg, 549 F.3d at 827-28. In Kellogg, this court applied a de novo standard of review under those circumstances, notwithstanding that the plan at issue vested “sole discretion” in the plan administrator to determine benefits eligibility. Id. at 826-28.

    Unlike in Gilbertson and Kellogg, however, in this case MetLife did issue a decision denying the LaAsmars’ administrative appeal, a decision to which this court potentially could defer; however, MetLife issued that decision in a belated manner. Under these circumstances, we still decline to apply a deferential standard of review; instead, we will review MetLife’s benefits denial de novo.

    The facts of our case are similar to those presented in Rasenack. In that case, we applied a de novo standard of review under the new version of 29 C.F.R. § 2560.503-1(l) (2002), even though the administrator eventually but belatedly issued a decision denying a claimant’s administrative appeal, albeit after the claimant had already filed suit under ERISA. See Rasenack, 585 F.3d at 1314-18. Importantly, we noted that “[t]he relevant fact is that the administrator failed to ‘render a final decision within the temporal limits’ prescribed by the Plan and ERISA.” Id. at 1318 (quoting Gilbertson, 328 F.3d at 631; alteration omitted). In Rasenack, we further noted that permitting plan administrators to avoid de novo review by belatedly denying an appeal after the deadline has passed and the claimant has filed suit would conflict with the ERISA’s stated purposes, namely “protect[ing] . . . the interests of participants in employee benefit plans and their beneficiaries, . . . by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.”

    Id. at 1318 (quoting 29 U.S.C. § 1001(b)).

    That same reasoning applies here. Although MetLife eventually denied the LaAsmars’ claim on administrative review, it did so substantially outside the time period within which the Plan vested it with discretion to interpret and apply the Plan. Thus, it was not acting within the discretion provided by the Plan. See Gilbertson, 328 F.3d at 631.

    Our conclusion is bolstered by the Department of Labor’s indication, in revising § 2560.503-1(l), that it intended “to clarify that the procedural minimums of the regulation are essential to procedural fairness and that a decision made in the absence of the mandated procedural protections should not be entitled to any judicial deference.” Pension and Welfare Benefits Administration, 65 Fed. Reg. 70246-01, 70255 (Nov. 21, 2000) (emphasis added).*fn6

    2. Whether MetLife’s Substantial Compliance with these Procedural Requirements Permits it to Avoid de Novo Review

    MetLife argues that, despite these procedural irregularities, it substantially complied with the requirements for a timely administrative appeal. Under our earlier precedent applying the pre-2002 version of 29 C.F.R. § 2560.503-1, this court declined to apply “a hair-trigger rule” requiring de novo review whenever the plan administrator, vested with discretion, failed in any respect to comply with the procedures mandated by this regulation. See Finley, 379 F.3d at 1173. Instead, if this court concluded that the administrator’s decision was in “substantial compliance” with ERISA deadlines, then, if otherwise warranted, we would still afford deference to the benefits decision. See id. at 1173-75 (applying deferential arbitrary-and-capricious standard of review notwithstanding that administrative appeal was “deemed denied” and thus administrator did not exercise discretion in ruling on claimant’s appeal); see also Gilbertson, 328 F.3d at 634-35. We need not decide whether that “substantial compliance” doctrine still applies to the revised regulation at issue here, 29 C.F.R. § 2560.503-1, because even assuming it does apply, MetLife did not substantially comply here with ERISA’s requirement of a timely resolution of an administrative appeal.*fn7 In our cases addressing the prior regulation, we stated that an administrator substantially complied if the procedural irregularity was “(1) ‘inconsequential’; and (2) in the context of an on-going, good-faith exchange of information between the administrator and the claimant.” Finley, 379 F.3d at 1174 (quoting Gilbertson, 328 F.3d at 635); see also Rasenack, 585 F.3d at 1317. Assuming, without deciding, that that test would apply under the revised regulation, MetLife has failed to meet it because the 170-day delay in this case did not occur within “the context of an on-going, good-faith exchange of information between the administrator and the claimant.” Finley, 379 F.3d at 1174 (quoting Gilbertson, 328 F.3d at 635). MetLife never requested an extension of time, as 29 C.F.R. § 2560.503-1(i)(1)(i) permits. And there is no suggestion in the record that Metlife was, during this delay, engaged in “an on-going productive evidence-gathering process in which the claimant is kept reasonably well-informed as to the status of the claim and the kinds of information that will satisfy the administrator.” Gilbertson. 328 F.3d at 636. Instead, in response to the LaAsmars’ attorney’s letter asking about their administrative appeal, MetLife indicated only that it was still evaluating the case. It does not appear that MetLife ever attempted to gather any additional evidence before eventually denying the LaAsmars’ administrative appeal.

    For these reasons, we will review MetLife’s decision to deny the LaAsmars’ claim for AD&D benefits de novo because MetLife failed to comply substantially with 29 C.F.R. § 2560.503-1(i)(1)(i)’s deadline for deciding a claimant’s administrative appeal.

    B. Whether MetLife Erred in Denying the LaAsmars’ claim for AD&D Benefits

    We, thus, review de novo both the interpretation of the terms of the Plan and MetLife’s decision to deny the LaAsmars accidental death benefits. See Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1250 (10th Cir. 2007). It was the LaAsmars’ burden to establish a covered loss. See Rasenack, 585 F.3d at 1319.

    The AD&D Plan at issue here, like any insurance policy, is a contract, an agreement between the Plan and its participant. See Salisbury v. Hartford Life & Accident Co., 583 F.3d 1245, 1247 (10th Cir. 2009). In interpreting that agreement, we must determine the parties’ intent at the time they entered into it.

    See Blair v. Metro. Life Ins. Co., 974 F.2d 1219, 1221 (10th Cir. 1992). Because an insurance policy is drafted by the insurer, however, our inquiry is not what the provider unilaterally intended the terms of the Plan to mean, but what a reasonable person in the position of the participant would have understood those terms to mean. See Rasenack, 585 F.3d at 1318.

    In reviewing MetLife’s decision to deny benefits, we are limited to considering only the rationale given by MetLife for that denial. See Kellogg, 549 F.3d at 828-29. We turn, then, to the three reasons why MetLife denied the LaAsmars’ claim for AD&D benefits.

    1. Whether the Crash was the “Sole Cause” of Mark LaAsmar’s Death

    The first reason that MetLife denied the LaAsmars’ claim for AD&D benefits was because MetLife concluded that “the crash was not the sole cause of the loss,” as required by the policy (Aplt. App. at 82). MetLife concluded that Mark LaAsmer’s “extreme intoxicated state was a contributing factor.” (Id. at 103-04.)

    We rejected this same reasoning in Kellogg v. Metropolitan Life Insurance Co., 549 F.3d 818 (10th Cir. 2008). In Kellogg, the insured was killed in a car wreck. See id. at 819-20. Based upon an eyewitness’s testimony and the insured’s prescription medications, it appeared that the wreck may have occurred because the insured had a seizure while driving. See id. at 819-21. Similar to the Plan at issue here, the plan in Kellogg provided for AD&D benefits if the accident was “the Direct and Sole Cause of a Covered Loss . . . mean[ing] that the Covered Loss occurs within 12 months of the date of the accidental injury and was a direct result of the accidental injury, independent of other causes.” Id. at 821 (quotation omitted). But that plan excluded from AD&D coverage “any loss caused or contributed to by . . . physical or mental illness or infirmity, or the diagnosis or treatment of such illness or infirmity.” Id. (quotation omitted). In Kellogg, MetLife denied AD&D benefits because “[t]he decedent’s physical illness, the seizure, was the cause of the crash.” Id. at 823 (quotation omitted).

    This court, reviewing the denial of benefits de novo, applying the “plain meaning” of the language of the plan, and construing the terms strictly against the insurer, reversed. See id. at 828-33.

    Here, the loss (Brad Kellogg’s death) was caused by a skull fracture resulting from the car accident, not by physical or mental illness. . . . While the seizure may have been the cause of the crash, it was not the cause of Brad Kellogg’s death. The Plan does not contain an exclusion for losses due to accidents that were caused by physical illness, but rather excludes only losses caused by physical illness. Because there is no evidence that the seizure caused Brad Kellogg’s death, MetLife’s argument fails.

    The fact that the policy at issue here excludes losses that were caused or contributed to by physical illness does not change this analysis. A reasonable policyholder would understand this language to refer to causes contributing to the death, not to the accident.

    Id. at 832-33 (citations, footnote omitted); see also Fought v. UNUM Life Ins. Co. of Am., 379 F.3d 997, 998-1000, 1009-10 (10th Cir. 2004) (per curiam) (holding, on rehearing, that exclusion for disabilities caused by a pre-existing medical condition would not support denial of benefits caused by staph infection resulting from surgery for a pre-existing condition), abrogated on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2351 (2008).

    Kellogg’s reasoning applies here as well. Mark LaAsmar died, not of alcohol intoxication, but as a result of head and internal injuries suffered in a motor vehicle crash. The sole cause of the loss, Mark LaAsmar’s death, was the crash.

    2. Whether the Crash was an “Accident” as Provided in the Plan

    The second reason MetLife denied the LaAsmars AD&D benefits was because it concluded Mark LaAsmar’s death was not the result of an “accident”: “Here, the decedent’s BAC was over two times the lawful limit. Driving while so impaired rendered the infliction of serious injury or death reasonably foreseeable and hence, not accidental as contemplated by the Plan.” (Aplt. App. at 103.)

    a. Declining to Adopt a per se Rule

    As a starting point, the LaAsmars argue that MetLife erred by denying their AD&D claim based upon a blanket rule that all wrecks occurring while the driver has a BAC of approximately 2.8 times the legal limit is not an “accident.” Courts have consistently rejected such a per se rule, as would we. See Stamp v. Metro. Life Ins. Co., 531 F.3d 84, 91 & n.9 (1st Cir.) (rejecting “categorical determination that all alcohol-related deaths are per se accidental or nonaccidental”), cert. denied, 129 S.Ct. 636 (2008); Lennon v. Metro. Life Ins. Co., 504 F.3d 617, 621 (6th Cir. 2007) (noting that “the extent of the risk” a drunk driver takes will “vary from case to case, depending on how intoxicated the driver is, how far he drives, how fast he drives, and how many other drivers and pedestrians are sharing the road with him”) (quotation omitted) (opinion of Rogers, J.); Eckelberry v. Reliastar Life Ins. Co., 469 F.3d 340, 345, 347 (4th Cir. 2006) (rejecting such a per se rule); Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104, 1106, 1110 (7th Cir. 1998) (affirming denial of AD&D benefits where insured died while driving drunk, but expressly not suggesting that insurer “could sustain a determination that all deaths that are causally related to the ingestion of alcohol . . . could reasonably be construed as not accidental”); Danouvong ex rel. Estate of Danouvong v. Life Ins. Co. of N. Am., 659 F. Supp. 2d 318, 326-27 (D. Conn. 2009) (holding plan administrator’s denial of benefits was arbitrary and capricious because the administrator in effect applied a per se rule treating all drunk driving deaths as non-accidental). MetLife’s assertion, in its decision denying the LaAsmars’ administrative appeal, that driving while as drunk as Mark LaAsmar was-almost three times the legal limit for BAC-makes serious injury or death reasonably foreseeable and thus not accidental, suggests that MetLife was applying such a per se rule based solely upon the degree of intoxication involved. We reject this interpretation of this AD&D policy.

    b. Whether a Reasonable Person in Mark LaAsmar’s Position Would have Understood the Term “Accident,” as Used in this AD&D Plan, to Cover the Crash at Issue Here

    We must determine, then, what the parties, in making an agreement for AD&D coverage, intended to include under the term “accident.”*fn8 As previously noted, our inquiry must focus on what a reasonable person, in Mark LaAsmar’s position, would have understood the terms of the AD&D policy to mean. See Rasenack, 585 F.3d at 1318. In making that determination, we look to the language of the Plan, which provided AD&D benefits “if [the insured’s] death is due to an accident.” (Aplt. App. at 75.) The Plan explained that “AD&D insurance provides additional security by paying [the insured’s] designated beneficiary a benefit in addition to life insurance if [the insured] die[s] as a result of an accident.” (Id. at 81.) The Plan further provided that “[a]n additional [AD&D] benefit may be payable if the loss of [an insured’s] life results from injuries sustained while driving or riding in a private passenger car if [the insured’s] seat belt was properly fastened.” (Id. at 83.) And the Plan excluded from AD&D coverage “death . . . caused by or contributed to by” a number of things, including “[s]uicide or any attempt at suicide,” and “[i]njuring oneself on purpose.”*fn9 (Id.) The Plan however, did not define the word “accident,” even though it is the crucial term underlying the AD&D coverage provided.

    Judged in the context of the policy as a whole, see Weber, 541 F.3d at 1011, and speaking generally, a reasonable person in Mark LaAsmar’s position would have understood from the language of the Plan that the term “accident” did not include any conduct intentionally causing a loss. And the fact that there might be an additional benefit paid for wearing a seat belt would suggest to a reasonable person that the standard AD&D benefits would be available, even if the plan participant did not take affirmative action to minimize the risks he undertook. Beyond those clues, derived from the plan’s language, about what the parties intended “accident” to mean, however, we are left to determine what a reasonable person in Mark LaAsmar’s position would have understood by the term “accident.” Rasenack, 585 F.3d at 1318.

    In making that determination, we must first consider whether that term as the Plan used it is ambiguous under the circumstances presented here. See id. In doing so, we again consider the common and ordinary meaning of the word, as a reasonable person in the position of the participant would understand it. See id. In that light, a term is ambiguous if it “is reasonably susceptible to more than one meaning, or where there is uncertainty as to the meaning of the term.” Id. (quotation omitted).

    Surely there can be no question in this case that the term “accident,” as used in this Plan and as applied to this case, is ambiguous.*fn10 See Stamp, 531 F.3d at 88 (deeming “accident,” as used in an AD&D policy applied to insured’s drunk driving, to be ambiguous); Sanchez v. Life Ins. Co. of N. Am., No. SA-08-CV-527-XR, 2009 WL 3255160, at *6 (W.D. Tex. Oct. 6, 2009) (in addressing AD&D benefits for death occurring in vehicular crash while insured was driving drunk, treating the policy’s use of the term “accident,” defined as a “‘sudden, unforeseeable, external event,'” as ambiguous); Mullaney v. Aetna U.S. Healthcare, 103 F. Supp. 2d 486, 488, 491 (D.R.I. 2000) (noting, in case addressing whether AD&D benefits should be awarded after insured died in vehicular crash while driving drunk, “that the word ‘accident,’ when used in the context of an insurance policy, does not have a plain and ordinary meaning”); see also Wickman, 908 F.2d at 1087 (in addressing whether a fall from bridge was an “accident” for purposes of AD&D insurance, noting that “[c]ase law is fairly consistent in defining an accident, using equally ambiguous terms such as undesigned, unintentional, and unexpected”); Lennon, 504 F.3d at 627 & n.2 (Clay, J., dissenting) (noting, in addressing AD&D coverage for insured’s drunk driving, that “the barrage of case law” on the question of the “ordinary” meaning of the term “accident” “suggests that the meaning of ‘accidental’ is anything but plain”); West v. Aetna Life Ins. Co., 171 F. Supp. 2d 856, 860, 880 (N.D. Iowa 2001) (noting, in case addressing whether insured’s death in a car crash was accidental for AD&D coverage, that, “[u]nfortunately, there is probably no ‘ordinary’ meaning of ‘accident’ upon which all reasonable people could agree”); Fegan v. State Mut. Life Assurance Co. of Am., 945 F. Supp. 396, 397, 399 (D.N.H. 1996) (noting, in case addressing whether death due to complications from surgery was the result of an accident, that “[w]hat generally qualifies as an ‘accident,’ as that term is used in policies providing insurance against accidental death, appears to be one of the more philosophically complex simple questions”). See generally Richmond, 45 Tort Trial & Ins. Prac. L.J. at 58, 63 (noting that “the terms accident and accidental are incredibly elusive,” and that “few issues so confound courts as determining when deaths are to be considered accidents for purposes of insurance policies affording accidental death coverage”); Gary Schuman, “Dying Under the Influence: Drunk Driving and Accidental Death Insurance,” 44 Tort Trial & Ins. Prac. L.J. 1, 2 (Fall 2008) (noting that courts and insurance underwriters, for 150 years, “have attempted to answer th[e] apparently simply question” of “what is an ‘accidental bodily injury'”; further noting that “[t]here probably is no ‘ordinary’ meaning of ‘accident’ upon which everyone can agree, at least in the context of accidental death insurance or benefit plans”). But cf. McLain v. Metro. Life Ins. Co., 820 F. Supp. 169, 170-71, 176 (D.N.J. 1993) (holding, in case addressing whether acute reaction to cocaine was an “accident” for purposes of AD&D benefits, term “accident” as used in the AD&D policy was not ambiguous).

    Because we are reviewing MetLife’s denial of benefits de novo and because we conclude that the term “accident,” as used in the Plan at issue in this case, is ambiguous, “[t]he doctrine of contra proferentem, which construes all ambiguities against the drafter, applies” here.*fn11 Rasenack, 585 F.3d at 1318 (quotation omitted). This is because “ERISA imposes upon providers a fiduciary duty similar to the one trustees owe trust beneficiaries. Just as a trustee must conduct his dealings with a beneficiary with the utmost degree of honesty and transparency, an ERISA provider is required to clearly delineate the scope of its obligations.” Id. at 1318-19 (quotation omitted). We also strictly construe insurance contracts against the insurer, in light of the unequal bargaining position of the parties. See Kellogg, 549 F.3d at 830. Applying the doctrine of contra proferentem and “[s]trictly construing ambiguous terms presents ERISA providers with a clear alternative: draft plans that reasonable people can understand or pay for ambiguity.” Rasenack, 585 F.3d at 1320 (quotation omitted); see also Miller, 502 F.3d at 1254.

    It is not too much to ask of ERISA insurers to set forth explicitly what is and is not an accident covered by their AD&D policy, and to state unambiguously whether death and disability caused by the insured’s drunk driving is an accident and, if not, to include a workable definition of drunkenness and of causation attributed to such drunkenness. See Miller, 502 F.3d at 1254 (noting that “ERISA . . . gives significant benefits to providers by preempting many state law causes of action which threaten considerably greater liability than that allowed by ERISA” in return for “promot[ing] the interests of employees and their beneficiaries in employee benefits plans and . . . protect[ing] contractually defined benefits”) (quotation, alterations omitted).

    Insurance policies are almost always drafted by specialists employed by the insurer. In light of the drafters’ expertise and experience, the insurer should be expected to set forth any limitations on its liability clearly enough for a common layperson to understand; if it fails to do this, it should not be allowed to take advantage of the very ambiguities that it could have prevented with greater diligence. . . . [A]n insurer’s practice of forcing the insured to guess and hope regarding the scope of coverage requires that any doubts be resolved in favor of the party who has been placed in such a predicament.

    Id. at 1254-55 (quoting Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 540 (9th Cir. 1990)).

    Here, then, in determining whether the crash at issue in this case was an “accident,” we consider the common and ordinary understanding of the word “accident,” as a reasonable insured would understand the term, but in doing so we construe the meaning of that term in the LaAsmars’ favor and against MetLife.*fn12

    See generally Senkier v. Hartford Life & Accident Ins. Co., 948 F.2d 1050, 1052-53 (7th Cir. 1991) (in deciding whether “a medical mishap [is] an ‘accident'” for purposes of accidental death benefits, rejecting other legal tests and instead “leav[ing] the question to common understanding as revealed in common speech”; further noting that “[a] lay person has a clear if inarticulate understanding of the difference between an accidental death and a death from illness, and that understanding will not be altered or improved by head-spinning judicial efforts at definition”) (quotation omitted).*fn13

    Under the terms of the Plan, at the non-accident end of the spectrum, we expect, without deciding, that a reasonable person would think the following were not “accidents”: if the insured intentionally caused the crash;*fn14 if the insured died as a result of playing Russian roulette;*fn15 or if an insured died in his vehicle while playing “chicken” with a train or another vehicle.

    At the other end of the spectrum, we expect, again without deciding, that a reasonable person would generally believe that an insured did die in an “accident” if he lost control of his vehicle while talking on a cell phone or moderately speeding or becoming distracted by children in the back seat. See Eckelberry, 469 F.3d at 347 (noting that, in upholding administrator’s denial of AD&D benefits where insured died while driving drunk, court was not suggesting “that plan administrators can routinely deny coverage to insureds who engage in purely negligent conduct or, for example, to anyone that speeds”). To some degree, the language of the Plan at issue here providing for the possibility of additional benefits if the insured chose to wear a seat belt suggests that an insured’s failure to take precautions against obvious dangers would not preclude AD&D benefits under this policy. Most people, in any event, would define accident to include many circumstances where a driver undertakes conduct that makes a crash more likely, such as driving when sleepy or when the weather is bad, talking on the cell phone, reaching for a compact disc, or turning to speak to a child while operating a vehicle. See Richmond, 32 Seattle U. L. Rev. at 85-86. Each of these volitional acts increases the probability of a wreck, some arguably to an even greater degree than driving drunk. See id. at 86 (commenting that a driver is more likely to have an accident if he is on his cell phone than if he is driving drunk); see also Kovach, 587 F.3d at 335-36. And yet, in each of these cases, reasonable people (and courts) generally consider a resulting wreck to be an “accident.” See Richmond, 32 Seattle U. L. Rev. at 86 (noting that, although “[a]nother major contributor to vehicular crashes, ‘distracted driving,’ may result from cellular phone use, eating, listening to music, or personal grooming while behind the wheel,” and “[t]he dangers of distracted driving are obvious[,] . . . a court is unlikely to find that a distracted driver’s death is anything other than accidental”); see also Kovach, 587 F.3d at 335-36. In fact, “[m]ost motor vehicle crashes are traceable to some failure of judgment that fully reveals its dangers only when it is too late. That is precisely why they are accidents.” Richmond, 32 Seattle U. L. Rev. at 85 (quotation omitted). This is true even when a wreck is caused by an insured driver’s arguably unlawful conduct, such as speeding or turning in front of oncoming traffic. See Eckelberry, 469 F.3d at 347; 10 Couch on Insurance § 139:13 (noting that “a large proportion of vehicular collisions involve the combination of an intentional act-turning, speeding, and so forth-with an unintended result-broadside collision, swerving and overturning, and so forth-yet are readily accepted as ‘accidents'”); see also Kovach, 587 F.3d at 333 (noting carelessness or negligence of insured in running a stop light did not make the ensuing wreck not an accident, notwithstanding insured’s BAC of .148).

    Somewhere in the middle of this spectrum of circumstances falls Mark LaAsmar’s decision to drive home in the early morning darkness on two-lane country roads, with a BAC of .227 and going sixty miles an hour in a forty-mile-per-hour zone. The same reasoning ought to apply to his situation as well. We believe that a reasonable person would believe that his death in a one-car rollover crash occurring during this drive was the result of an “accident” under the Plan at issue here.*fn16 See Kovach, 587 F.3d at 330 (noting that “drunk driving is ill-advised, dangerous, and easily avoidable,” but “so are many other activities that contribute to wrecks that a typical policyholder would consider ‘accidental'”); see also id. at 333. In reaching this conclusion, we focus, not on the insured’s motivations, but on his conduct. We focus not exclusively on the fact that Mark LaAsmar had a .227 BAC, because we have already rejected the application of a blanket per se rule denying coverage anytime an insured exceeds the legal BAC limits in the absence of explicit language in the Plan to that effect. Instead, here we focus on Mark LaAsmar’s specific conduct, driving with a BAC of .227 early in the morning on a two-lane rural road, exceeding the posted speed limit by twenty miles per hour. A reasonable person would call the resulting rollover an “accident.” That would be true whether Mark LaAsmar wrecked his truck because he fell asleep or lost control because he was speeding. It should also be true if he ran off the road because he had a BAC of .227. In our judgment, none of these circumstances is so extreme that a reasonable person would think they fell outside the realm of an “accident” sufficient to trigger payment of AD&D benefits. While we are not suggesting that there are no circumstances where an insured would be so drunk that a resulting wreck could no longer be deemed an accident, see Schuman, 44 Tort Trial & Prac. L.J. at 61, (just as we are not prepared to suggest that there is no speed at which a motorist could drive which, under the circumstances, would take a resulting crash out of the realm of an accident), such are not the facts before us.*fn17

    Nor do we mean to suggest that drunk driving (or speeding or distracted driving) is not a concern. Certainly it is. But what we must address here is the parties’ reasonable expectations of the scope of coverage for an “accident.” Reviewing the question de novo and strictly construing the terms of the policy in the insured’s favor, we hold that “accident,” as used in the AD&D policy, extends coverage to an unintended death resulting from an vehicle crash where the driver had a blood alcohol content approximately 2.8 times the legal limit and where the vehicle was being driven approximately twenty miles an hour over the speed limit on a two-lane rural road at night. Said another way, to interpret the term “accident” as used in the AD&D policy at issue here to preclude coverage under these circumstances would not be faithful to the reasonable expectations of the parties.*fn18

    c. Rejecting Parties’ Post Hoc Explanations for what they Intended “Accident” to Mean

    In reaching this conclusion, we reject the parties’ proffered interpretations of the Plan. Instead of employing the common and ordinary understanding of the term “accident,” MetLife, in denying the LaAsmars’ claim for AD&D benefits, employed a “reasonable foreseeability” test, determining that Mark LaAsmar’s BAC “rendered the infliction of serious injury or death reasonably foreseeable.” (Aplt. App. at 103.) In applying this rule, MetLife cited to Wickman v. Northwestern National Insurance Co., 908 F.2d 1077 (1st Cir. 1990). But there are several reasons why we reject MetLife’s effort to substitute new language for the language the parties chose in the insurance contract.

    First and foremost, the parties did not expressly state in the Plan that this was their understanding of the term “accident.” See id. “Reasonable foreseeability,” besides itself being ambiguous, injects a different spin to the analysis and, depending upon how broadly it is interpreted, could drastically reduce coverage under the AD&D policy since, particularly in hindsight, it could be said many accidents are foreseeable, even reasonably foreseeable, as opposed to unforeseeable.

    Second, Wickman itself, upon which MetLife purports to rely, did not apply a reasonable foreseeability test, but instead asked whether the injuries or loss at issue was “highly likely to occur.”*fn19 See id. at 1088; see also Lennon, 504 F.3d at 625 (noting that a number of courts have morphed Wickman’s “highly likely” standard into a “reasonable foreseeability” test); id. at 628 (Clay, J., dissenting) (noting “many courts have incorrectly framed the objective prong of the Wickman inquiry in terms that water it down in substance, asking whether an injury was ‘reasonably foreseeable'”); Richmond, 32 Seattle U. L. Rev. at 102. Nor is Wickman directly analogous to the situation at issue here. Wickman did not involve a situation where the insured was driving drunk and, as such, is only generally relevant.*fn20 See generally Kovach, 587 F.3d at 334 (declining, in case regarding an injury that the insured suffered while riding a motorcycle while drunk, to rely on case law that “did not even involve intoxication”). Moreover, unlike the Plan at issue here, the policy in Wickman did specifically define the term “‘accident'” as “‘an unexpected, external, violent, and sudden event.'” 908 F.2d at 1085. Wickman’s test, therefore, logically focused on “the level of expectation . . . necessary for an act to constitute an accident.” Id.; see also id. at 1087-89.

    Third, the parties here could not have intended, at the time they agreed upon the AD&D coverage at issue here, that that coverage would not include any situation where a loss was reasonably foreseeable because a person purchases AD&D coverage exactly because something is reasonably foreseeable. See 10 Couch on Insurance § 139:11 (noting that “[t]he fact that injuries and death are ‘foreseeable’ in a general manner is the very reason that people purchase insurance against accidents-no one who found a plane crash ‘unforeseeable’ would purchase trip insurance”; further noting that “[a]lmost all adverse events are ‘foreseeable’ in the abstract sense: being hit by a car while crossing the street, breaking a leg while skiing, dying from the effects of drugs (be they legal or illegal), even having a plane crash into your house”). Thus, MetLife’s post hoc application of this “quite broad” reasonably foreseeable standard to determine what is and is not an accident under the Plan “frustrate[s] the legitimate expectations of plan participants, for insurance presumably is acquired to protect against injuries that are in some sense foreseeable.” King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 1002 (8th Cir. 2005) (en banc) (noting this possibility); see Kovach, 587 F.3d at 335 (noting the same); Sanchez, 2009 WL 3255160, at *6 n.18 (noting that the “foreseeability” test is “disturb[ing]” because it “presents the opportunity for [the insurer] to deny coverage for risky, but legal, activities (e.g., standing on a ladder, driving an automobile, playing basketball)”); Danouvong, 659 F. Supp.2d at 328 (noting that a foreseeability standard “would exclude from coverage any death or injury resulting from known risky activity in which a driver-insured engages, such as driving while extremely tired, using a cell phone, or being drunk, because each of these activities increases, by some anticipatable amount, the chance of a car collision;” further noting that such a foreseeability standard, without any limit, thus “would provide coverage to drivers-insureds in only a diminishingly small number of car collisions”); Harrell v. Metro. Life Ins. Co., 401 F. Supp. 2d 802, 812-13 (E.D. Mich. 2005) (noting that diluting Wickman’s “highly likely” standard with a “reasonably foreseeable” test “undermines common conception of ‘accidental injuries,’ and therefore could violate ERISA’s requirement that benefit plans be ‘written in a manner calculated to be understood by the average plan participant'” (quoting 29 U.S.C. § 1022(a)).

    Furthermore, the phrase “reasonably foreseeable” is a term often associated with the tort concept of negligence. Yet, for the reasons stated above, “recovery on an accident insurance policy is not defeated by the mere fact that ordinary negligence of the insured contributed to the occurrence of the accident, unless the policy expressly excepts the risk of accidents due to the negligence of the insured,” which the Plan at issue here does not. 10 Couch on Insurance § 139:52; see also Kovach, 587 F.3d at 335. “[H]olding otherwise would, in the majority of cases, render accident policies of little value for the simple reason that the element of ‘carelessness’ or ‘negligence’ enters into most accidents.” 10 Couch on Insurance § 139:52; see also Schuman, 44 Tort Trial & Ins. Prac. L.J. at 32 (“One of the chief goals of accident insurance is to protect insureds from the effects of their own acts. Even if an accident results because of the insured’s own fault, the insured still expects to receive coverage. Otherwise, insurers could deny almost any claim under any accident insurance policy on the grounds that the insured contributed to the resulting accident. The insurer assumes the risk of the insured’s negligence. Consequently, voluntary exposure to danger by the insured is not itself an excuse for avoiding liability.”) (footnotes omitted). For this reason, too, a reasonable person in Mark LaAsmar’s position could not have understood, at the time he agreed to this AD&D, that the term “accident” used in the Plan meant only those incidents where injuries or death were not reasonably foreseeable. See 10 Couch on Insurance § 139:15 (noting that “the concept of ‘reasonably unforeseeable’ . . . is essentially the concept employed in tort law to determine what actions are blameworthy as opposed to accidental, and is generally held inapplicable to determining whether a set of circumstances amounts to an accident for purposes of accident insurance”); see also id. §§ 139.23, 139.25; Schuman, 44 Tort Trial & Ins. Prac. L.J. at 35.

    Lastly, even if we were to agree with MetLife’s application of a reasonable foreseeability test, which we do not, there is nothing in the administrative record in this case that would support MetLife’s assertion that, because Mark LaAsmar’s driving with a BAC of “over two times the lawful limit” made “the infliction of serious injury or death reasonably foreseeable.” (Aplt. App. at 103.) See West, 171 F. Supp. 2d at 901, 903-04. The fact that driving drunk may increase the chances of being killed in an accident does not necessarily make that accident expected. Schuman, 44 Tort Trial & Ins. Prac. L.J. at 30. In fact, a number of courts have noted that, statistically, it is not reasonably foreseeable that a person driving drunk will be seriously injured or killed. See Kovach, 587 F.3d at 334-35 (citing different statistics indicating that either “one twentieth of one percent” or .17% of the people who drive drunk die in crashes); see also Richmond, 32 Seattle U. L. Rev. at 106 (suggesting “an intoxicated driver’s chance of dying is about 1-in-9128,” which “translates to a 99.999 percent chance of survival”). Based upon these statistics, “[w]hat ‘common knowledge’ should actually tell a person driving while intoxicated is that he or she is far more likely to be arrested for driving while intoxicated than to die in or be injured in an alcohol-related automobile crash, and far more likely to arrive home than to be either arrested, injured, or killed.” West, 171 F. Supp.2d at 904.

    The First Circuit has indicated, instead, that it is not the statistical probability of death or serious injury that is relevant here, but rather “what a reasonable person would perceive to be the likely outcome of the intentional conduct,” presumably that of driving while as impaired as the insured. Stamp, 531 F.3d at 92. Even so, there is still nothing in the administrative record developed in this case to suggest that a reasonable person would perceive that, if he drove with a BAC of .227, early in the morning on two-lane rural roads while speeding, that he would die.*fn21 Cf. King, 414 F.3d at 1000, 1004 (remanding to plan administrator where administrator, in denying AD&D benefits, failed to “discuss whether evidence concerning how a reasonable person would view the likelihood of [the insured’s] death was sufficient to satisfy the Wickman standard, however that might be precisely defined by the” administrator, to whom the Plan in that case had afforded discretion to interpret the Plan).

    For all of these reasons, we reject MetLife’s application of a reasonable foreseeability test to determine whether Mark LaAsmar’s crash was an “accident” for purposes of the AD&D Plan at issue here.

    The LaAsmars, on the other hand, suggest that an event will not be an “accident” under the Plan only if it was “highly likely to occur,” citing Wickman.

    But there is also no indication that the parties, at the time they entered into an agreement for AD&D coverage, intended or understood the term “accident” to mean that, either. MetLife did not draft the Plan using that language. Nor can we attribute this “highly likely” test to the plain and ordinary meaning of “accident.” It is not even clear what “highly likely” means. See Kovach, 587 F.3d at 337 (suggesting “highly likely” is “a good bit more” than a 50% chance, and is perhaps a 75% chance); King, 414 F.3d at 1004 (suggesting that “highly likely” could mean “‘more likely than not,’ some lesser probability that exceeds ‘reasonably foreseeable’ but falls short of a fifty-percent chance, or something else that does not depend at all on statistical probabilities”) (citations omitted). Applying a “highly likely” standard to decide what is and is not an accident still requires courts to conjure up greater and more complicated explanations for that phrase. With every such complication, the definition of “accident” gets further distanced from the plain and ordinary meaning of “accident,” and thus further from what a reasonable person, in Mark LaAsmar’s position, would understand to be an “accident.”*fn22 “An insured should not have to consult a long line of case law or law review articles and treatises to determine the coverage he or she is purchasing under an insurance policy.” Kovach, 587 F.3d at 332-33 (quotation, alteration omitted). We, therefore, also reject that formula for determining what is and is not an “accident” under the Plan at issue here.

    d. Conclusion

    Focusing only on the plain and ordinary meaning of the term “accident,” then, as understood by a reasonable person in Mark LaAsmar’s position at the time he agreed to MetLife’s AD&D coverage, we conclude that Mark LaAsmar died in an “accident.”

    If MetLife wants to exclude from its AD&D coverage vehicle wrecks caused by its insured’s drunk driving, it can certainly do so by drafting the language of its Plan clearly to say so. See Kovach, 587 F.3d at 336; see also Marjorie A. Shields, “Clause in Life, Accident, or Health Policy Excluding or Limiting Liability in Case of Insured’s Use of Intoxicants or Narcotics,” 100 A.L.R.5th 617 (2010) (collecting cases); 32 Appleman on Insurance 2d § 188.06[C][3] at 200-03 (1996) (discussing such exclusions); Richmond, 32 Seattle U. L. Rev. at 113-14 (same); Schuman, 44 Tort Trial & Ins. Prac. L.J. at 39-43, 61. “The sheer number of court cases nationwide involving disputes over claims by drunk drivers certainly would have put [MetLife] on notice that it would likely face claims under its AD&D policies based on injuries sustained in alcohol-related collisions.” Kovach, 587 F.3d at 336. It is ultimately the insurer that must decide, and then clearly articulate, what its AD&D insurance will cover.

    See Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1457 (5th Cir. 1995) (noting, after holding that insured’s beneficiary was entitled to AD&D benefits, that “life insurance companies have ample ways to avoid judgments like this one”); see also 10 Couch on Insurance § 139:8 (noting that “[t]he parties to accident insurance contracts have the right and power to contract as to the accidents and risks for which the company shall and shall not be liable, subject to the restraints of public policy, and the courts may not make new or different contracts for them”) (footnote omitted); id. § 139.33 (noting that “[p]rovisions of insurance policies excepting particular losses from the coverage thereof are ordinarily valid, for the parties to a contract of insurance have the right to limit or qualify the extent of the insurer’s liability in any manner not inconsistent with statutory forms or provisions or contrary to public policy”). Moreover, if the insurer clearly and expressly addressed these matters in the terms of the plan, the insured would not have to guess at the coverage he has purchased.*fn23 See Kovach, 587 F.3d at 338 (noting that if insurers included “an express exclusion in policies covering accidental injuries for driving while under the influence of alcohol, or for any other risky activity that the company wishes to exclude[,] [p]olicyholders would . . . be able to form reasonable expectations about what type of coverage they are purchasing without having to make sense of conflicting bodies of caselaw that deal with obscure issues of contractual interpretation”). Not only should “[t]he insured . . . know what he is getting in his insurance policy, so that he can decide whether he would like more coverage at a higher price or less at a lower price,” Senkier, 948 F.2d at 1053, but ERISA requires a provider “to clearly delineate the scope of its obligations,” Rasenack, 585 F.3d at 1318-19.

    For all of the foregoing reasons, then, reviewing the Plan at issue here de novo and construing it strictly against MetLife, we conclude that a reasonable person in Mark LaAsmar’s position would have understood the Plan’s use of the term “accident” to include the crash in which he died.

    3. Whether Mark LaAsmar’s Death Fell within the Exclusion of Coverage for “Injuring Oneself on Purpose”

    Lastly, MetLife denied the LaAsmars AD&D benefits “based on the purposefully self-inflicted injury exclusion” (Aplt. App. at 104), apparently referring to the Plan’s exclusion of AD&D coverage for “[i]njuring oneself on purpose” (id. at 83). MetLife deemed this exclusion to apply here because [t]he mental and physical deficits caused by voluntarily consuming such a large quantity of alcohol necessary to produce a BAC of over 22%, resulted in reduced awareness, blurred vision, sleepiness, lack of motor control, loss of balance and judgment, etc.-typically thought of as being high or tipsy or drunk-were purposefully self-inflicted and caused or contributed to the death. (Id. at 104.)

    MetLife had the burden of establishing that the loss fell within this exclusion from coverage. See Rasenack, 585 F.3d at 1319. It failed to meet that burden here.

    There is, as we have already noted, no evidence in the record indicating that Mark LaAsmar intended to injure himself “on purpose” on the night of the wreck. See Kovach, 587 F.3d at 338-39 (rejecting argument that wreck occurring while insured was driving drunk fell within exclusion for “purposeful self-inflicted wound”); King, 414 F.3d at 1004 (rejecting argument that insured’s “alcohol intoxication was itself an ‘intentionally self-inflicted injury’ that ‘contributed to’ his injuries and death”; holding, instead, that that argument was “based on an unreasonable interpretation of the plan” because “[t]he 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”); Harrell, 401 F. Supp. 2d at 805, 808-13 (rejecting as arbitrary and capricious administrator’s application of exclusion for “intentionally self-inflicted injury” to car crash occurring while insured had a BAC of .17); see also Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 465 (7th Cir. 1997) (holding that, because court had determined that insured died from an accidental overdose of prescription medication, plan administrator could not “rely upon the ‘intentionally inflicted self-injury’ exclusion”; further noting that the record in that case would not support any determination other than that the insured simply made a “fatal mistake”). As the Eighth Circuit has noted, “[o]ne rarely thinks of a drunk driver who arrives home safely as an ‘injured’ party.” King, 414 F.3d at 1004 (noting further that “to define drinking to the point of intoxication as an ‘intentionally self-inflicted injury, suicide, or attempted suicide’ is at least a “startling construction'”).

    MetLife has, therefore, failed to meet its burden of proving that this exclusion precludes the LaAsmars from recovering AD&D benefits. See Rasenack, 585 F.3d at 1319.

    4. Conclusion as to the denial of AD&D Benefits

    For these reasons, we AFFIRM the district court’s decision to overturn MetLife’s denial of the LaAsmars’ claim for AD&D benefits.


    In their cross-appeal, No. 07-1286, the LaAsmars argue that the district court abused its discretion in failing to rule at all on their requests for attorney’s fees and prejudgment interest.

    A. Attorney’s Fees

    ERISA provides, in pertinent part that, “[i]n any action under this subchapter . . . by a . . . beneficiary . . . , the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). MetLife argues, however, that the LaAsmars failed to request attorney’s fees in a proper manner. That is true.

    Prior to the district court’s decision on the merits of their case, the LaAsmars did request attorney’s fees from the district court in several of their pleadings. Nevertheless, after the district court entered judgment on their behalf, the LaAsmars failed to follow the requirements of Fed. R. Civ. P. 54(d)(2) and the relevant local rule in seeking an award of attorney’s fees. See West v. Local 710, Bhd. of Teamsters Pension Plan, 528 F.3d 1082, 1087 (8th Cir. 2008) (applying Rule 54(d) to request for attorney’s fees under ERISA’s 29 U.S.C. § 1132(g)(1)); Bender v. Freed, 436 F.3d 747, 749-50 (7th Cir. 2006) (same); Jones v. Central Bank, 161 F.3d 311, 312-13 (5th Cir. 1998) (same). Rule 54(d)(2)(A) provides that “[a] claim for attorney’s fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” In addition, [u]nless a statute or a court order provides otherwise, the motion must:

    (i) be filed no later than 14 days after the entry of judgment;

    (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award;

    (iii) state the amount sought or provide a fair estimate of it; and

    (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.

    Fed. R. Civ. P. 54(d)(2)(B).

    Rule 54(d)(2)(D) also provides that, “[b]y local rule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary hearings.” The District of Colorado has established such a rule, providing that a Rule 54(d) motion for attorney’s fees “shall include the following for each person for whom fees are claimed: 1. a detailed description of the services rendered, the amount of time spent, the hourly rate, and the total amount claimed; and 2. a summary of relevant qualifications and experience.”

    D.C.Colo.L.Civ.R. 54.3(B). In addition, “[u]nless otherwise ordered by the court, a motion for attorney fees shall be supported by one or more affidavits.” Id.


    Other than requesting attorney’s fees in their pre-judgment pleadings, the LaAsmars failed to follow any of these other required procedures. Under these circumstances, the district court did not err in not addressing their request for fees. See Bender, 436 F.3d at 750 (affirming the district court’s denial of an untimely Rule 54(d)(2)(B) motion for fees in an ERISA case); cf. Quigley v. Rosenthal, 427 F.3d 1232, 1236-38 (10th Cir. 2005) (holding the district court did not abuse its discretion in denying attorney’s fees because plaintiffs’ Rule 54(d)(2) motion was untimely and they had failed to show excusable neglect that would justify extending the time they had to file such a motion).

    B. Prejudgment Interest

    An award of prejudgment interest in an ERISA case is also within the district court’s discretion. See Kellogg, 549 F.3d at 833; Weber, 541 F.3d at 1016. MetLife again argues that the LaAsmars waived their request for prejudgment interest by failing to pursue it in the district court. The LaAsmars did request prejudgment interest in the concluding paragraph of a response they filed to one of MetLife’s motions, which was probably sufficient to raise the request, initially, before the district court. See Mascenti v. Becker, 237 F.3d 1223, 1245 (10th Cir. 2001) (citing McNickle v. Bankers Life & Cas. Co., 888 F.2d 678, 681 (10th Cir. 1989) (per curiam)).

    After the district court entered final judgment in their favor, the LaAsmars filed a Motion for Extension of Time to File Motion to Alter or Amend Judgment.

    In that motion, the LaAsmars noted that the district court had never ruled on their request for prejudgment interest, but that the parties might be able to resolve the issue among themselves, making a motion to alter or amend unnecessary. Therefore, the LaAsmars requested that the district court grant them a two-week extension, until June 26, 2007, to file a motion to alter or amend. The district court did not rule on that extension-of-time request, and the LaAsmars never filed a motion to alter or amend. Th

  4. Up until I bought my house, I never really gave much thought to purchasing life insurance. Prior to buying my house, I was single, had no dependents, was debt free, and had a fair bit of savings. If I was to die, my death wouldn’t put anyone in financial trouble, so there wasn’t really a need for it. Now that I have a mortgage, life insurance has come back on my radar.

    The only reason I’ve given life insurance any thought of late, is my mortgage, otherwise, nothing in my life has changed: I’m still single with no dependents. I hate the thought of my parents (who are currently my beneficiaries) being saddled with that debt, should something happen to me. My first hint that life insurance and mortgages seem to be connected came when I was getting my mortgage. The mortgage specialist at the bank asked if I wanted mortgage disability and life insurance. Thankfully, I’d done a bit of research and had seen the CBC Marketplace special on mortgage life insurance, so I knew I’d be better off declining the bank’s offer and getting insurance on my own.Life insurance is a tricky thing, there’s lots of options in terms of coverage, type of insurance (term vs. permanent), and of course insurance companies to choose from. My two biggest questions when it comes to life insurance are: do I really need life insurance, and if so, how much? I don’t view insurance as an opportunity to leave oodles of money to my beneficiaries in the event of my death (sorry kitty, you’re not going to find yourself on one of those richest pets in the world lists) or a way to have a really opulent funeral. Frankly, a plain ‘ole pine box would suit my corpse fine. The only reason I would want life insurance, is to make sure my debts (aka the mortgage) and the cost of putting me six-feet under would be covered, that’s it. Nothing more, nothing less.

    I do have some life insurance through my work benefits. Right now, my coverage equates to 200% of my annual earnings. My annual earnings are approximately $54,000, so my coverage would be $108,000. That amount would certainly cover the cost of a funeral but not my entire mortgage, which is approximately $140,000. To cover my mortgage and a funeral, I figure that the amount of coverage would have to be around $150,000. However, there’s no reason my parents couldn’t sell my house to cover the mortgage since the mortgage is less than what the house could be reasonably sold for. I’m fairly certain that the house could be sold for $180,000 (at the lowest) and that it wouldn’t take too long to sell either, given the location, size and look of the place. Even if the house took a couple months to sell, my work benefits would cover the mortgage payments for a while. Given that, I’m not sure that I really need much more life insurance that what I already have.

    Of course, should I find myself a man, settle down and make some dependents, I would absolutely re-evaluate my life insurance needs. As it stands now, I think everything will be covered if I kick the bucket. Have you given much thought to life insurance? What factors influenced your decisions regarding life insurance?

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  6. In the event of an accidental death, this insurance will pay benefits in addition to any life insurance but only up to a set amount total regardless of any other insurance held by same insurer, held by the client.This is called double indemnity coverage and is often available even when accidental death insurance is merely an add-on to a regular life insurance plan. Some of the covered accidents include traffic accidents, exposure, homicide, falls, heavy equipment accidents, and drowning. Accidental deaths are the fifth leading cause of death in the U.S. as well as in Canada.

    Accidental death insurance is not an investment vehicle and thus clients are paying only for sustained protection. Insurance premiums are expected to rise in time. Most policies have to be renewed periodically (with revised terms), although the client’s consent with renewal is often implicitly assumed.
    Common exclusions

    Every insurer maintains a list of events and circumstances that void the insured’s entitlement to his or her accidental death benefit. Death by illness, suicide, non-commercial radiation, war injury, and natural causes are generally not covered by AD&D. Similarly, death while under the influence of any non-prescribed drugs or alcohol is most likely exempt from coverage. Overdose with toxic or poisonous substances and injury of an athlete during a professional sporting event may void the right to claim too.

    Some insurance carriers will tailor their clients’ coverage to include some of the above risks, but every such extension will be accompanied by increased premiums.

    Due to these restrictions, the process of claiming the benefit may be relatively lengthy; the deceased client may have to undergo autopsy and the accident may have to be officially investigated before a claim is approved by the insurer.

    Fractional amounts of the policy will be paid out if the covered employee loses a bodily appendage or sight because of an accident. Additionally, AD&D generally pays benefits for the loss of limbs, fingers, sight and permanent paralysis. The types of injuries covered and the amount paid vary by insurer and package, and are explicitly enumerated in the insurance policy.
    Coverage Types

    There are four common types of group AD&D plans offered in the United States:

    Group Life Supplement – the AD&D benefit is included as part of a group life insurance contract, and the benefit amount is usually the same as that of the group life benefit;
    Voluntary – the AD&D is offered to members of a group as a separate, elective benefit, and premiums are generally paid as a payroll deduction;
    Travel Accident (Business Trip) – the AD&D benefit is provided through an employee benefit plan and provides supplemental accident protection to workers while they are traveling on company business (the entire premium is usually paid by the employer);
    Dependents – Some group AD&D plans also provide coverage for dependents.

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