HENRY E. HUDSON, District Judge.
Michael A. Bryner ("Bryner") brought this action against his employer, E.I. du Pont de Nemours & Company ("DuPont"), under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461, challenging its denial of accidental death benefits. Bryner's claim arose from his wife's death while under the care of her treating physician. The dispute turns on the definition of a "covered accident." The parties have filed cross motions for summary judgment, which have been thoroughly briefed, and the Court has entertained oral argument. For the reasons that follow, the Court agrees that DuPont's decision must be reviewed under the deferential "abuse of discretion" standard. However, DuPont's analysis of the claim does not employ a reasonable definition of the term "accident," and consequently it has abused its discretion in denying Bryner's claim. Accordingly, the Court will grant Bryner's Motion for Summary
Bryner and his spouse, Lorraine Bryner ("Mrs. Bryner"), were covered by DuPont's "Beneflex Accidental Death Insurance Plan" (the "Plan"). (PRU at 20-31.) Under the Plan terms, their lives were insured for any loss "directly related to the injuries from [an] accident." (DUP at 174.) Further, the Plan excluded any death resulting from "sickness, disease or bodily infirmity except when a direct result of a covered accident." (Id.) However, conspicuously absent from the Plan is any definition of a "covered accident." Although Prudential is the insurer obligated to pay claims under the plan, DuPont serves as the "Plan Administrator" vested with "the discretionary right to determine eligibility for benefits ... and to construe the terms and conditions of [the] Plan." (Id. at 194.) Prudential makes initial decisions on claims and reconsideration requests, but DuPont ultimately has full authority to review those decisions. (Id. at 175-76.)
For several years, Mrs. Bryner suffered from a number of medical conditions, including gout and renal disease, the latter of which led to a kidney transplant after numerous hospitalizations. (PRU at 211-225.) To treat her non-fatal gout, Mrs. Bryner's physicians prescribed a standard dose of twice-daily colchicine, which she was instructed to increase to a dose of five or six tablets per day when necessary to control pain. (Id. 80-81.) She took such a heightened dose around April 5, 2004, and soon thereafter developed a fever, altered mental status, and leukopenia.
After a weeklong hospitalization, Mrs. Bryner died on April 15, 2004. (Id.) As her condition deteriorated, her physicians noted that she was experiencing multiple organ system failure, anoxic brain injury, and no cranial nerve reflexes. (Id.) Although Mrs. Bryner's original death certificate identified the cause of death as "overwhelming sepsis," the death certificate was revised to indicate a "possible colchicine overdose." (Id. at 90.)
In December 2004, after considering the medical evidence, Bryner filed a claim for benefits under the terms of the Plan. (Id. at 79-80.) He based his claim on evidence that Mrs. Bryner's "death was due to accidental colchicine poisoning following a severe gout attack." (Id. at 79.) Prudential denied the claim initially and on reconsideration, noting that the hospital records failed to indicate a colchicine overdose. (Id. at 202-05, 277-79.)
In his appeal to Prudential, Bryner included additional evidence of colchicine poisoning, relying principally on the medical opinion of Jack Daniel, M.D. ("Dr. Daniel"), a pathologist. Based on his review of the medical records and experience as a former medical examiner, Dr. Daniel concluded "to a reasonable degree of medical certainty that the findings are entirely
Bryner then appealed Prudential's decision to DuPont, which retains authority to overrule any decision made by Prudential. (DUP at 176.) Based on the same record submitted to Prudential, an independent panel at DuPont upheld denial of the claim. Rejecting Bryner's assertion that colchicine toxicity was "the sole cause of death," DuPont applied the exclusion for "sickness, disease or bodily infirmity except when as a direct result of a covered accident." (Id. at 6.) In effect, DuPont relied on the existence of multiple causes of death to reject any contention that Mrs. Bryner's death was "a direct result of a covered accident." (Id.) Notably, DuPont did not indicate whether it would have denied benefits had it concluded that colchicine toxicity was, in fact, a direct cause of death.
On April 15, 2009, Bryner filed his first lawsuit in this Court challenging the decisions of Prudential and DuPont. Pursuant to a settlement agreement reached in that case, DuPont agreed to reconsider Bryner's claim de novo, including consideration of the opinion of Brandon Wills, D.O. ("Dr. Wills").
In considering Dr. Wills' opinion and Bryner's final submission, DuPont obtained an independent evaluation from Vincent J. Zarro, Ph.D., M.D. ("Dr. Zarro"). Dr. Zarro agreed with Dr. Daniels' findings, concluding that Mrs. Bryner's death was triggered solely by a toxic dosage of colchicine. (Id. at 229.) And while Dr. Zarro indicates that the dosage taken is no longer recommended in any medical literature, he acknowledges that such dosage was considered appropriate during the relevant time frame. (Id.) Despite these findings, DuPont again denied the claim, concluding that death due to a prescribed course of medical treatment does not fall within the definition of a "covered accident." In its final analysis, DuPont based its decision on the fact that Mrs. Bryner's death "was the direct result of a deliberate action rather than a covered accident." (Id. at 203.) Noting that the term "`[a]ccident' is not defined in the Plan," DuPont
DuPont confirmed this final decision on administrative appeal and this lawsuit followed.
The parties have filed cross-motions for summary judgment raising disputes over the governing standard of review applicable to DuPont's decision, as well of its merits. The Court heard oral argument after considering the written submissions and subsequently ordered supplemental briefing on the Fifth Circuit's recent decision in Firman v. Life Ins. Co. of N. Am., 684 F.3d 533 (5th Cir.2012). In short, the issue presented is whether DuPont abused its discretion in determining that Mrs. Bryner's death was not a "covered accident" under the Plan.
Several basic principles of trust law govern judicial review of challenges to a plan administrator's denial of benefits governed by ERISA. Courts must "review a denial of plan benefits under a de novo standard unless the plan provides to the contrary." Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). If the plan vests in the plan administrator the "discretionary authority to make eligibility determinations," a reviewing court evaluates that decision for abuse of discretion.
The Fourth Circuit has set forth eight non-exclusive factors that guide the abuse of discretion analysis. These are: (1) the language of the plan; (2) the purposes and goals of the plan; (3) the adequacy of the materials considered; (4) whether the fiduciary's interpretation was consistent with other provisions in the plan
Throughout the process of challenging DuPont's denial of benefits, Bryner has expended considerable time and resources addressing DuPont's original diagnostic basis for denial—that Mrs. Bryner died from multiple causes. Now, approximately eight years since his initial application for benefits, DuPont concedes that colchicine toxicity alone caused Mrs. Bryner's death. Nevertheless, DuPont, relying on a slightly nuanced explanation, remains steadfast in its denial of benefits.
Analyzing DuPont's decision through the lens of the eight nonexclusive factors articulated in Booth, 201 F.3d at 342-43 and, more recently reaffirmed in Williams, 609 F.3d at 630, the Court concludes that DuPont abused its discretion in denying Bryner's claim. The factors relevant here are: (1) the language of the plan; (2) the purposes and goals of the plan; (3) whether DuPont's interpretation was consistent with other provisions in the plan and with earlier interpretations; (4) whether the decision was consistent with the procedural requirements of ERISA; (5) whether the decision-making process was reasoned and principled; and, (6) consideration of certain external standards relevant to interpretations of the word "accident." See Booth, 201 F.3d at 342-43. The other two Booth factors are not particularly relevant here.
First and foremost, DuPont fundamentally abused its discretion in this case when it based its decision on a self-crafted extra-textual definition of the word "accident" without adequate explanation. Cf. Andes v. Versant Corp., 788 F.2d 1033, 1035 (4th Cir.1986) (finding an abuse of discretion where the district court "failed to articulate its reason[ing] so that we might give effective appellate review."). In fact, neither DuPont nor Prudential has revealed its definition of "accident," much less its genesis. Instead, each has merely stated that the phrase is ambiguous and undefined; that DuPont retains exclusive discretion to define the phrase; that the phrase does not include a death resulting from multiple causes where some are not covered; and, most recently, that "covered accident" does not include death preceded by an intentional act.
Holding its cards closely, DuPont has not explained what is an accident, only
In each variation of their previous explanations, DuPont and Prudential specifically found that colchicine toxicity was not the sole cause of death, and based their decision on this then-disputed fact. For example, and consistent with each previous decision, Prudential's November 30, 2005 denial explained:
(PRU at 203 (emphasis added).) In its final decision on June 25, 2011, DuPont offered a distinct reason for denying coverage: "[Mrs. Bryner's] actions were not accidental. Nor was it an `accident' that she ingested colchicine in these amounts; rather, she followed her doctor's `long-standing orders.'" (DUP at 203.) DuPont had known for eight years that Bryner's claim was based on Mrs. Bryner's prescribed ingestion of medically-acceptable quantities of colchicine. At that point, after finally conceding that colchicine was the sole cause of death, DuPont offered this terse reason for denying coverage. This last minute change in reasoning is unsettling. Williams, 609 F.3d at 630; see also Mills v. Union Sec. Ins. Co., 832 F.Supp.2d 587, 601 (E.D.N.C.2011) (finding that inconsistent interpretations and subsequent interpretations that are inconsistent with previous factual findings suggest an abuse of discretion).
To employ diverse applications of the word "accident" would appear to be inconsistent with the Plan goals, namely "to provide employees the opportunity to purchase accidental death and dismemberment insurance." (DUP at 188 (emphasis added).) While ambiguous terms are subject to DuPont's discretionary interpretation, the goal of providing accidental death benefits requires a certain level of predictability which cannot be obtained with amorphous terms of coverage. Williams, 609 F.3d at 630 (directing courts to consider "the purposes and goals of the plan") (citation omitted). Otherwise, prospective policy purchasers cannot make an informed decision on the coverage it provides.
For similar reasons, allowing DuPont to change its definition of core terms at will undermines ERISA's goal of "careful[ly] balancing between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans." Conkright v. Frommert, 559 U.S. 506, 130 S.Ct. 1640, 1649, 176 L.Ed.2d 469 (2010) (citation and internal quotation marks omitted). Concerns with the decisional process were compounded by DuPont's failure to follow the agreed upon deadlines, which required a decision within sixty days, thereby extending the appeals process by almost another year after it had already taken about seven years. See 29 C.F.R. § 2560.503-1(i)(1)(i) (requiring notification of a decision within a "reasonable period of time"). Each of DuPont's and Prudential's previous decisions led Bryner to believe that the claim would have been approved if colchicine toxicity was the sole cause of death. This caused Bryner to incur considerable expense to address this issue only to later learn that the ultimate basis for DuPont's decision was a fact known eight years previously— that Mrs. Bryner took colchicine as directed by her physician.
The issue remains the same regardless of whether medical treatment is involved— if the accidental event directly caused the sickness or bodily infirmity, then the death may still be covered. By its plain terms, this exclusion specifically contemplates coverage for death from sickness when a "covered accident" is causally linked to the sickness. There is nothing about this language or any other Plan provision which renders medical treatment unique. And as the Fourth Circuit has recognized, "`an accident is an unintended occurrence. If such happens during medical treatment, it is still an accident.'" Griffiths v. Siemens Automotive, L.P., No. 92-2118, 1994 WL 645433, at *2, 1994 U.S.App. LEXIS 32311, at *5 (4th Cir. Nov. 16, 1994) (quoting Whetsell v. The Mut. Life Ins. Co. of New York, 669 F.2d 955, 957 (4th Cir.1982)).
DuPont's reliance on the Seventh Circuit decision in Senkier v. Hartford Life & Accident Ins. Co., 948 F.2d 1050 (7th Cir. 1991), is misplaced. Citing the rule that "where the courts of appeals are in disagreement on an issue, a decision one way or another cannot be regarded as arbitrary or capricious," DuPont suggests that it may rely on Senkier to define "accident" in such a way as to exclude a medical mishap. Hinkle v. Assurant, Inc., 390 Fed.Appx. 105, 108 (3d Cir.2010) (citation omitted). First, as the Court has already explained, the "arbitrary and capricious" standard of review is not applicable in the Fourth Circuit. Supra note 4 (citing Booth, 201 F.3d at 342-43). More importantly, a number of courts have explicitly rejected Senkier's analysis—including the Fourth Circuit. Griffiths, 1994 WL 645433, at *2, 1994 U.S.App. LEXIS 32311, at *5 (quoting Whetsell, 669 F.2d at 957). Even if DuPont could rely on Senkier, the absence of an articulated definition of "accident" is a glaring void which distinguishes the immediate case from Senkier.
To the extent that the Court can discern DuPont's concept of "accident" from its decisions, its apparent definition still appears to be unreasonable, because it fails to account for the reasonable expectations of the insured. Struggling to define the word "accident," a number of Courts have turned to the doctrine found in Wickman v. Northwestern Nat'l Ins. Co., 908 F.2d 1077 (1st Cir.1990). In that case, the decedent intentionally climbed over a railing on a bridge, then fell. While it was clear that his act of climbing over the railing was intentional, it was unclear whether he intended to fall to his death. In its analysis, the First Circuit developed a two-part test. First, a fact-finder must determine whether the insured subjectively expected death or serious injury, and if so, were "the suppositions which underlay that expectation" reasonable. Id. at 1088. Second, if the fact-finder cannot determine the subjective expectations of the insured, it must undergo an objective analysis—would a reasonable person with similar background and characteristics have expected serious injury or death? Id. Under the facts of Wickman, the Court found that the death was not accidental because the decedent either intended to jump off of the bridge or, alternatively, it was unreasonable for him to place himself in such a risky situation and expect to survive. Id. at 1088-89.
Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 534 (5th Cir. June 15, 2012) (emphasis added).
Applying Wickman to this case, particularly in light of Firman, DuPont clearly abused its discretion when it failed to consider Mrs. Bryner's reasonable expectations. Just as in Firman, the Plan here does not define the term "accident," but grants interpretive discretion to DuPont as plan administrator. The record here contains scant evidence of Mrs. Bryner's subjective expectations concerning the risks of colchicine treatment. But, there can be no doubt from the record that "a reasonable person" in her situation would not have viewed death as "highly likely to occur as a result of" a prescribed treatment for non-fatal gout. Wickman, 908 F.2d at 1088 (citing City of Carter Lake v. Aetna Cas. & Sur. Co., 604 F.2d 1052, 1058-59 & n. 4 (8th Cir.1979)). There is nothing in the record supporting a reasonable inference that she had reason to believe that colchicine treatment could kill her. (PRU at 80-81.) Based on her reasonable expectations, the teachings of Wickman compel the conclusion that Mrs. Bryner's death was an accident.
In the final analysis, the wisdom of Justice Cardozo of the United States Supreme Court is instructive. "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.
While DuPont fails to articulate a specific definition, it hints that "accident" under its Plan involves "objective actions" and not "subjective expectations." (DUP at 203.) This statement highlights the fallacy underlying DuPont's self-crafted standard. Absent some definitional clarity of DuPont's use of the term "objective," its precise application in this context is difficult to comprehend. Must the action be objectively reasonable? Objectively intended? Must the actor be objectively aware of the consequences? Though unclear, DuPont appears to suggest that an intentional action is never accidental, even if the consequences are unintended. But this would mean that choking to death on a chicken bone is not accidental, because the victim intentionally consumed the chicken. Or, someone who falls off of a ladder did not die accidentally, since he intentionally climbed the ladder. Such a definition strains the common understanding of the word "accident."
In short, DuPont's decision is unreasonable because it fails to define the term accident—it merely tells Bryner that his wife's death was not within that definition, whatever it may be. Moreover, it defies logic that an occurrence cannot be an "accident" simply because of its association with an intended act that yielded an unintended consequence. This Court is mindful that the governing standard of review is narrow and that it should not interpose its judgment for that of the Plan Administrator. But here, the construction of the word "accident," adopted apparently for this specific case, lacks principled reasoning.
Accordingly, the Court finds that DuPont abused its discretion when it denied Bryner's claim. Bryner's Motion for Summary Judgment will be granted and DuPont's Motion for Summary Judgment will be denied.
An appropriate Order will accompany this Memorandum Opinion.
