United States Court of Appeals,

                             Fifth Circuit.

                              No. 94-10420.

         Nancy J. TODD, Plaintiff-Appellee, Cross-Appellant,

                                   v.

AIG LIFE INSURANCE COMPANY, et al., Defendants-Appellants, Cross-
Appellee.

         Nancy J. TODD, Plaintiff-Appellee, Cross-Appellant,

                                   v.

 GROUP ACCIDENT INSURANCE PLAN FOR EMPLOYEES OF E-SYSTEMS, INC.,
et al., Defendants-Appellants, Cross-Appellee.

                             March 29, 1995.

Appeals from the United States District Court for the Northern
District of Texas.

Before WHITE, Associate Justice (Ret.),* BARKSDALE and PARKER,
Circuit Judges.

     WHITE, Associate Justice (Ret.):

     This case, a suit for recovery of benefits under the Employee

Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001

et seq., involves the construction of an accidental death insurance

policy and arises from the unfortunate death by asphyxiation of

appellee's husband.      The insurer refused to pay the policy's

benefits after concluding that the death was not accidental.            The

district   court   granted   summary    judgment   in   appellee's   favor,

finding that the loss resulted from an accident within the terms of

the policy, holding that liability extended beyond the insurer to

     *
      The Honorable Byron R. White, Associate Justice of the
United States Supreme Court, (Ret.), sitting by designation,
pursuant to 28 U.S.C. § 294(a).

                                    1
the employee welfare benefit plan and its administrator, and

awarding attorneys' fees.       The defendants appealed.     We affirm the

district court's judgment regarding policy coverage but reverse on

the extended liability issue and remand for a proper determination

of attorneys' fees.

                                      I.

      Richard A. Todd was found dead at his home in Rockwall, Texas,

on April 25, 1991.         The cause of death was determined to be

autoerotic asphyxiation, the practice of limiting the flow of

oxygen to the brain during masturbation in an attempt to heighten

sexual pleasure.       When found, Todd was lying on his bed with a

studded dog collar around his neck;            the collar, in turn, was

attached to two leather leashes of differing lengths, one of which

passed over Todd's back and attached to an ankle. Apparently, Todd

gradually tightened the collar around his neck by pulling on the

leashes, thereby reducing the supply of oxygen reaching his brain.

Instead of simply restricting the flow of oxygen enough to increase

his sexual gratification, however, Todd tightened the collar to the

point at which he passed out.       Todd apparently designed the system

of   leashes   to    loosen   the   ligature   in   the   event   he   became

unconscious;        unfortunately, the collar failed to release and

ultimately terminated the flow of oxygen permanently.             The autopsy

report listed the cause of death as "asphyxia due to ligature

strangulation," ruling the manner of death "accidental."

      At the time of his death, Todd was covered by an "Accidental

Death and Dismemberment Insurance" policy provided by his employer,


                                      2
E-Systems, Inc., as part of an employee welfare benefit plan

falling within the ambit of ERISA.            AIG Life Insurance Company

issued the E-Systems policy, which was administered by the Group

Accident Insurance Plan ("GAI"), with David V. Roberts serving as

the plan administrator.

     Appellee, Nancy J. Todd, was the decedent's wife and his

beneficiary under the policy.         Shortly after her husband's death,

appellee presented her claim for benefits to the E-Systems employee

welfare     benefit     plan   and   AIG   through    a   claims   processing

organization,     the     American    International       Adjustment   Company

("AIAC").    In an October 1991 letter written on behalf of AIG, an

AIAC claims examiner denied appellee's claim, finding that "[t]he

circumstances of [Todd's] death point to the fact that he was

risking his life by his actions" and explaining that "[a] death

[cannot] be considered accidental ... [i]f from the viewpoint of

the Insured, his conduct was such that he should have anticipated

that in all reasonable probability he would be killed."

     After the ERISA Appeals Review Committee upheld the claims

examiner's decision, appellee filed suit against AIG and AIAC in

Texas state court, alleging various state common law and statutory

claims.    The case was removed to the United States District Court

for the Northern District of Texas based upon the applicability of

ERISA.    Faced with the contention that all of her state law claims

were preempted by that statute, 29 U.S.C. § 1144(a);               Pilot Life

Ins. Co. v. Dedeaux, 

, 

, 

(1987), appellee amended her complaint to allege a claim for


                                       3
failure to pay benefits under the insurance policy pursuant to

ERISA, 29 U.S.C. § 1132(a)(1)(B).         She also joined as parties the

GAI Plan and its administrator, alleging that these defendants

breached their fiduciary duties under ERISA, 29 U.S.C. §§ 1104(a)

and 1109(a).    Cross-motions for summary judgment were filed.         The

district court observed that "the parties are in agreement on the

underlying facts," and that the case posed strictly the legal

question whether the policy covered Todd's death.           Memo. Op. 1.

The court filed an opinion and entered final judgment in favor of

appellee on all issues.

     Appellants present three issues on appeal:           whether Todd's

death was covered by the AIG accidental death insurance policy,

whether   the   ERISA    employee   welfare     benefit   plan   and   its

administrator can be held liable for the benefits owed by the

insurer, and whether the district court's calculation of attorneys'

fees was proper.    We consider each in turn.

                                    II.

     Summary judgment is appropriate if the record discloses "that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed.R.Civ.P. 56(c).     We review a district court's grant of summary

judgment de novo and must evaluate the facts in the light most

favorable to the non-moving party.        Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 

, 587, 

, 1356, 

(1986).     In the ERISA context, in turn, "a denial of

benefits challenged under § 1132(a)(1)(B) is to be reviewed under


                                     4
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, 

, 115, 

, 956, 

(1989). See also Schultz v. Metropolitan Life Ins. Co.,

, 678 (5th Cir.1989).           No such grant of authority was

included in the E-Systems policy, so we accord no deference to the

administrator's ultimate determination.           Cf. Pierre v. Connecticut

General Life Ins. Co., 

, 1553 (5th Cir.) (concluding

that a plan administrator's findings concerning facts underlying

the claim for benefits should be reviewed for abuse of discretion),

cert. denied, 

, 

, 

(1991).

                                       A.

      The first issue in this case is whether, on the facts before

it, the district court erred in ruling the death to be accidental

within the meaning of the policy insuring the plan. Preliminarily,

we note that it is undisputed that federal law governs this issue,

including the construction of the policy provisions.               Congress, in

adopting ERISA, expected that "a federal common law of rights and

obligations under ERISA-regulated plans would develop."                  Pilot

, 107 S.Ct. at 1558;               see also 

, 109 S.Ct. at 954.              In ascertaining the applicable

federal common law, this court has explained, we may " "draw

guidance from analogous state law.' "            Brandon v. Travelers Ins.

Co., 

,   1325   (5th       Cir.1994)    (quoting   McMillan   v.

Parrott, 

, 311 (6th Cir.1990)).              We must nevertheless


                                       5
bear in mind that, "[i]n so doing, [we] may use state common law as

a basis for new federal common law ... only to the extent that

state law is not inconsistent with congressional policy concerns."

Thomason v. Aetna Life Ins. Co., 

, 647 (7th Cir.1993);

see also Heasley v. Belden & Blake Corp., 

, 1257 n. 8

(3rd Cir.1993);       Jamail, Inc. v. Carpenters District Council of

Houston Pension & Welfare Trusts, 

, 304 (5th Cir.1992).

         We also note that the district court held that, in construing

the language of ERISA plans, federal law must follow the rule of

contra proferentem, which directs that when plan terms remain

ambiguous     after    applying   ordinary    principles    of   contract

interpretation, courts are to construe them strictly in favor of

the insured.1     This ruling comports with this court's holdings in

ERISA cases.     Ramsey v. Colonial Life Ins. Co. of America, 

, 479 (5th Cir.1994);     Hansen v. Continental Ins. Co., 

, 982 (5th Cir.1991).      Other circuits also apply the rule in

ERISA cases where construction of insurance documents is involved,

e.g. 

;        McNeilly v. Bankers United Life

Assurance Co., 

, 1201 (7th Cir.1993);         Delk v. Durham

Life Ins. Co., 

, 106 (8th Cir.1992);2      Kunin v. Benefit

     1
      Of course, the language of insurance contracts should be
given their ordinary and generally accepted meaning if there is
one, see, e.g., Hardester v. Lincoln Nat'l Life Ins. Co., 

, 334 (4th Cir.1994). "We interpret ERISA plans in an
ordinary and popular sense as would a person of average
intelligence and experience." Meredith v. Allsteel Inc., 

, 1358 (7th Cir.1993).
     2
      The company relies on Brewer v. Lincoln Nat'l Life Ins.
Co., 

, 153-54 (8th Cir.1990), cert. denied, 

, 

, 

(1991), to oppose the

                                    6
Trust Life Ins. Co., 

, 539-40 (9th Cir.), cert. denied,

, 

, 

(1990);        see also

Glocker v. W.R. Grace & Co., 

, 544 (4th Cir.1992).3

     At long last, we turn to the relevant provisions of the

insurance policy involved here. First, the policy defines "injury"

as "bodily injury caused by an accident occurring while this policy

is in force as to the Insured Person and resulting directly and

independently of all other causes in loss covered by this policy."

Second is a schedule of benefits payable:

     Accidental Death and Dismemberment Indemnity:     When injury
     results in any of the following losses to an Insured Person
     within 365 days of the date of the accident, the Company will
     pay in one sum the indicated percentage of the Principal
     Sum....

This provision is followed by a list of possible losses and

corresponding   benefits;   death   of   the   insured   entitles   the

beneficiary to payment of the entire value of the policy.           The

policy contains various exclusions from coverage, including loss

due to "suicide or any attempt thereat," but there is no general



application of contra proferentem in ERISA cases. Besides
ignoring the controlling precedents in this Circuit, it also
fails to mention the Eighth Circuit decision in Delk, cited above
in the text, as well as the Ramsey court's reliance on Delk in
applying contra proferentem in the ERISA context.
     3
      The district court also observed, Memo. Op. 11, that it is
the company's burden clearly to exclude those acts it does not
intend to cover, and that acts that are not expressly omitted or
excluded are covered. Applied literally, there being no
exclusion for autoerotic acts or for intentionally inflicted
injuries, no more would have been required to decide this case.
As will be seen, however, the district court did not take this
course, although it did make much of the fact that insurance
companies are aware, because of claims made against them, that
autoerotic practices exist and pose some risk of death.

                                7
exclusion for self-inflicted injury.

                                    1.

     We deal first with AIG's submission, presented to the district

court and renewed here, that as a matter of federal law governing

ERISA employee benefit plans the court should announce a per se

rule that   death   or   other   bodily    injury   caused   by   autoerotic

activity is never the result of an accident within the meaning of

an accidental death or injury policy insuring such a plan.              The

essence of the argument is that common to all such activities is

the intentional strangulation for the purpose of inducing asphyxia,

which in this case led to death.     "The "injury,' " it is said, "was

the strangulation and the resulting asphyxia," and it could not

have been "caused by an accident" because the injury was plainly

intentionally inflicted. Brief of Appellants 12. So viewed, there

is no ambiguity in the policy language and hence no room for the

contra proferentem rule in cases such as this.

     The district court, having noted the variety and ambiguity of

dictionary and case-law definitions of the words "accident" and

"accidental," and having reviewed the sparse history and current

knowledge of autoeroticism, did not believe that the cases dealing

with such activities warranted such a per se rule.           We also are not

impressed with AIG's submission.         It is true that Todd intended to

strangle himself to reduce the flow of blood and oxygen to the

brain thereby creating the condition of asphyxia, a word denoting

a shortage of oxygen reaching the brain or other bodily tissue.

That condition need not result in the loss of consciousness, which


                                    8
it will, of course, if prolonged for more than a few moments.          The

longer the asphyxia lasts, the greater the injury, and it need last

only a few minutes for death to ensue.        In this case, even if we

assume that Todd intended the degree of injury from asphyxia that

would cause him to lose consciousness, it is plain enough that this

condition is not an injury that necessarily leads to death.        It is

commonplace for those who suffer from such a condition to regain

consciousness and survive without any permanent damage.                What

killed Todd was not the mere loss of consciousness from the

temporary lack of oxygen in his brain;       it was the further injury

to the brain and other bodily functions caused by the prolonged

lack of oxygen-laden blood.     To claim that such additional injury

was intended is to aver that Todd intended to die, which AIG

expressly agrees he did not.        See Brief of Appellants 15.

     Perhaps   bodily    injuries   "intentionally"   inflicted   by   the

insured are not caused by accident, even without a policy exclusion

of intentional injuries;     but in our view the injuries that caused

death in this case, and very likely in other similar cases, were

not intentionally inflicted.        The claimed basis for announcing a

per se rule of federal law—that death by autoerotism of the kind

involved in this case cannot be accidental—is thus untenable.

     It is true that the federal courts of appeals to have dealt

with cases of this kind have denied recovery under the applicable

insurance policy.       But none of those cases, which AIG cites in

support of its per se rule proposition, purports to lay down any

federal law governing ERISA insurance cases. None of them involved


                                     9
an ERISA plan;   each of them was a diversity action controlled by

state law which dictated either that the death was not accidental

or that a self-inflicted injury exclusion barred recovery under the

policy.4

                                 2.

     Of course, the central question in this case remains to be

decided:   whether, even though Todd did not intend or expect to

die, the injury that killed him was or was not an "accident" within

the meaning of the policy.5   That word, without more, the district

     4
      See Sims v. Monumental General Ins. Co., 

, 480
(5th Cir.1992) (insurance policy expressly excluded any loss
(including death) "resulting directly or indirectly, wholly or
partly from ... an intentionally self-inflicted injury"); Sigler
v. Mutual Benefit Life Ins. Co., 

, 545 (S.D.Iowa
1981) (explaining that the elements of an intentionally
self-inflicted injury were met where the decedent's "voluntary
acts were intended to temporarily restrict his air supply to
heighten the sensations of masturbation"), aff'd, 

(8th Cir.1981); International Underwriters, Inc. v. Home Ins.
Co., 

, 1087 (4th Cir.1981) (applying Virginia law
and concluding that, "[b]ecause the decedent voluntarily placed
his neck in the [hangman's-type] noose and tightened the same to
the point where he lost consciousness, we think his death was the
natural result of a voluntary act unaccompanied by anything
unforeseen except death or injury"); Runge v. Metropolitan Life
Ins. Co., 

, 1159 (4th Cir.1976) (same).
     5
      Cases in this area have often debated whether there exists
a valid distinction between various formulations of accidental
death policies, particularly those that refer to injuries by
"accidental means." The Texas Supreme Court has concluded that
such phrases as " "accidental death' and "death by accidental
means,' as those terms are used in insurance policies, must be
regarded as legally synonymous unless there is a definition in
the insurance contract itself which requires a different
construction." Republic Nat'l Life Ins. Co. v. Heyward, 

, 557 (Tex.1976). The court in Wickman v. Northwestern
Nat'l Ins. Co. came to the same conclusion. 

, 1085-
86 (1st Cir.), cert. denied, 

, 

, 

(1990). Because most recent cases seem to reject the
accidental means distinction, and because the parties have not
pressed the issue in this case, we do not believe any debate on

                                 10
court observed, has no single, generally accepted meaning either in

the dictionaries, the cases construing it, or in common parlance.

Hence, after considering the published writings about autoerotic

practices,      the   court   turned      to   the   cases   dealing    with    such

activities for help.

     One of the few cases dealing specifically with deaths from

autoeroticism, Sims v. Monumental General Insurance Company, 

(1992), came from this Circuit.               It was not an ERISA case

and was governed by Louisiana law.              Recovery was denied under an

accidental death policy, not because the death was not accidental,

an issue the court carefully avoided, but because the policy

expressly    did      not   cover   losses,     including      death,   "resulting

directly     or    indirectly,      wholly      or    partly     from   ...     [an]

intentionally self inflicted injury."6               We noted that recovery had

also been denied by the Fourth Circuit in two similar cases,

International Underwriters, Inc. v. Home Ins. Co., 

(1981), and Runge v. Metropolitan Life Ins. Co., 

(1976), on the ground that, under Virginia law, the deaths were not

accidental;        we also explained that, in another similar case,

Kennedy v. Washington Nat'l Ins. Co, 

, 

, 846 (1987), the Wisconsin Court of Appeals had ruled that a

death    from     autoeroticism     was    accidental     and    covered   by    the



this point affects our decision.
     6
      The district court in the case before us stated that had
the policy before it contained an adequate self-inflicted injury
exclusion, which the insurer could have included in its policy
but did not, recovery would have been denied.

                                          11
insurance policy at issue.       The Sims court neither agreed nor

disagreed with these three cases.

     The essence of the two Fourth Circuit cases rejecting coverage

was explained as follows:

     [D]eath was the natural result of a voluntary act
     unaccompanied by anything unforeseen except death or
     injury....   [The decedent] is bound to have foreseen that
     death or serious bodily injury could have resulted when he
     voluntarily induced unconsciousness with a noose around his
     neck.   We are thus of opinion that his death was not an
     accident under Virginia law....

International 

(emphasis added).

Sims also noted Sigler v. Mutual Benefit Life Ins. Co., 

(8th Cir.1981).   That decision rejected coverage for an autoerotic

death based both on a self-inflicted injury exclusion in the policy

and on its view, relying on 

, that the death was not

accidental "since a reasonable person would have recognized that

his action could result in his death."   

(emphasis added).

     In Kennedy, the Wisconsin case, the sole issue was whether the

term "accidental death" in the insurance policy included death by

autoerotic asphyxiation.    The intermediate appellate court held

that the death was accidental.    In doing so, based on decisions of

the Wisconsin Supreme Court, it rejected the notion that death

could not be accidental if it was a foreseeable or the natural

result of a force or event voluntarily set in motion by the

insured.   In the court's view, it was not enough that the act might

or could have caused the injury or death;     only "when an insured

participates in some act where serious injury or death is highly

probable or an inevitable result"—only when it can be concluded


                                  12
that the insured, in effect, intended that result—can the result of

his conduct be held not to be accidental.   

at 846.

As the court saw it, autoerotic activity may be risky but death is

not a normal, expected result of this behavior;   it was not of such

a nature that Kennedy knew or should have known that it probably

would have resulted in death.   

in the instant case also discussed the

decision by the Texas Court of Civil Appeals in Connecticut General

Life Insurance Company v. Tommie, 

(1981), another

case that involved a claim that a death from autoerotic activity

was accidental and covered by the applicable insurance policy. The

plaintiff relied on two experts, both of whom testified that death

is not the normal or expected result of the kind of autoerotic

activity in the case and that death would not be reasonably

expected.7   The court affirmed the jury verdict that the death was

accidental, ruling that it could be otherwise only " "when the

consequences of the act are so natural and probable as to be


     7
      "Dr. Norton testified that she encountered from time to
time in her medical practice the same type of auto-erotic
activity as Mr. Tommie was engaged in, and that while some forty
deaths per year were reported in the United States as a result of
such activity, death is not the normal expected result of that
behavior, but would be considered unusual or unexpected. Dr.
Montgomery also agreed that death in those circumstances would
not be reasonably expected. Dr. Norton further testified that it
was likely that Mr. Tommie had engaged in the practice for
several years, considering his age and the fact that such
behavior generally begins in young men during pubescence or
shortly thereafter." 

. We note here
that while a ruling on the cross motions for summary judgment was
awaited, appellee filed a designation of expert witnesses,
indicating that her witnesses would testify as the experts had in
Tommie.

                                 13
expected by any reasonable person' " and were, in effect, intended

by the insured.    

(quoting Freeman v. Crown Life Ins.

Co., 

(Tex.Civ.App.1979)).   This ruling was based on

the Texas Supreme Court decision in Republic Nat'l Life Ins. Co. v.

Heyward, 

, 557 (Tex.1976), which held:   "[I]njuries

are "accidental' and within the coverage of an insurance policy ...

if, from the viewpoint of the insured, the injuries are not the

natural and probable consequence of the action or occurrence which

produced the injury;    or in other words, if the injury could not

reasonably be anticipated by [the] insured, or would not ordinarily

flow from the action or occurrence which caused the injury."

       After the review of these autoerotic death cases, which were

governed by state law and which produced inconsistent results, the

district court sought help from two ERISA cases that did not

involve autoerotic activity.    In Brown v. American International

Life Assurance Co., 

(S.D.Miss.1991), an arsonist,

a participant in an ERISA plan, died in the fire she had lit.   The

court ruled her death accidental because she plainly had the

subjective expectation that she would survive and because, on the

facts presented, this expectation was not unreasonable.     

       The second ERISA case that impressed the district court was

Wickman v. Northwestern Nat'l Ins. Co., 

(1st Cir.),

cert. denied, 

, 

, 

(1990).

There the deceased had climbed over a bridge guardrail and was

holding on with one hand when he fell and later died from his


                                 14
injuries.      The court of appeals affirmed the judgment below that

the death was not caused by an accident.         The magistrate had found

that serious bodily injury was substantially certain to happen and

that "Wickman knew or should have known that serious bodily injury

was a probable consequence substantially likely to occur as the

result" of his conduct.       

    This finding, the court of

appeals said, "equates with a determination either that Wickman

expected the result, or that a reasonable person in his shoes would

have expected the result, and that any other expectation would be

unreasonable."       

  The district court in the case before

us quoted the above passages from Wickman and ruled that as a

matter   of    law   Todd's   death   from   autoerotic   conduct   was   not

substantially certain to happen and that he reasonably expected to

survive.      Memo.Op. 19-20.8

     8
      We note here that a definition of the word "accident" more
favorable to the insured appealed to the United States District
Court for the Western District of Arkansas in Parker v. Danaher
Corp., 

(1994), a decision rendered a short time
after the judgment of the district court in the present case and
not cited by any of the briefs before us here. (An appeal in the
case was dismissed on motion of the appellants on May 31, 1994.)
Other than the instant case, Parker is the only case we found in
which a federal court has interpreted and applied an accidental
injury clause in an insurance policy issued in connection with an
ERISA employee benefit plan where the claimed loss was a death
connected with autoerotic activity.

          The Parker court examined in some detail the cases
     involving claims under accidental death policies in which
     the fatalities resulted from autoerotic activities. It
     noted that these cases were not ERISA cases and apparently
     found nothing in them persuasive enough to decide the case
     before it. It also examined the First Circuit's decision in
     

, and found that opinion wanting. It
     preferred to follow what it deemed to be the teaching of the
     Eighth Circuit that ERISA plans and insurance policies
     connected therewith be interpreted as an ordinary plan

                                      15
     Having surveyed the authorities upon which the decision was

based, we affirm the judgment of the district court that Todd's

death was accidental and within the coverage of the policy insuring

the employee benefit plan. That Todd neither intended nor expected

to die as the result of his autoerotic conduct AIG does not

dispute.   Indeed,   it   did   not    invoke   the   policy's   provision

excluding coverage for suicide. Nor does it question the averments

in Mrs. Todd's affidavit filed with her motion for summary judgment


     participant would—meaning that the language should be given
     its ordinary rather than a specialized meaning. As the
     court saw it, under this approach "the common man in the
     street regards an accident as being something unintended,
     not according to the usual course of things, or not as
     expected." 

Because "it is undisputed that the
     insured did not expect to die ... in the common
     understanding of man Timothy Parker's death would be
     regarded as accidental." 

As we
     understand the opinion, under this view it is enough for the
     plaintiff to prove that the insured expected to survive
     without proving the reasonableness of that expectation. The
     court thought this approach wholly consistent with, if not
     dictated by, Brewer v. Lincoln Nat'l Life Ins. Co., 

(8th Cir.1990). Interestingly enough, this was without
     the help of the contra proferentem doctrine, which the court
     ruled inapplicable in ERISA cases by reason of the Eighth
     Circuit's decision in Brewer. But see 

.

          We observe also that the Parker definition of accident
     is not inconsistent with some dictionary definitions. See,
     e.g., Webster's Ninth New Collegiate Dictionary 49 (9th ed.
     1985) (defining "accident" as "an unforeseen and unplanned
     event or circumstance") Moreover, the First Circuit, in
     Wickman, seemed to indicate that the narrower definition had
     some support in the common law and took pains to explain it
     away. 

, 1087-88. Although Mrs. Todd was
     familiar with Wickman, we fail to find an argument for this
     more favorable definition in her written papers in the
     record before the district court, and the argument is not
     presented here. Indeed, in both courts, Mrs. Todd was and
     is content to submit that her husband's death was not only
     unintended and unexpected, but also that his expectation was
     quite reasonable.

                                  16
that Todd was gainfully employed at the time of his death and that

the Todds had been married for many years, had two children, were

planning a family vacation soon, and were building a new house.

The district court's finding that Todd did not expect to die is

well founded.

      The district court held, however, and the parties agree, that

the deceased's expectation of survival, without more, is not

enough.    In this respect, the court adopted the essentials of the

Wickman approach. That expectation must be reasonable; and, as we

see it and as we think the district court saw it, the expectation

would be unreasonable if the conduct from which the insured died

posed such a high risk of death that his expectation of survival

was objectively unrealistic. The district court concluded that the

risk of death involved in the conduct at issue must reach the level

of "substantial certainty" before the resulting death could be

deemed    nonaccidental.    That      language   was   borrowed   from   the

magistrate judge's opinion in Wickman; but the district court also

quoted the magistrate's words, which surely have the same import,

describing the triggering risk to be that death was substantially

likely to occur from the insured's volitional act, which the court

of appeals in turn observed was the equivalent of "highly likely to

occur."

      We think the district court description of what is and is not

an   accident   fell   within   the   rules   for   construing    insurance

contracts, including the principle of contra proferentem. That is,

what the district court did is consistent with, if not necessarily


                                      17
compelled by, the rule that we interpret such policies in favor of

the insured.    The district court here followed the essence of

Wickman:   for death under an accidental death policy to be deemed

an accident, it must be determined (1) that the deceased had a

subjective expectation of survival, and (2) that such expectation

was   objectively   reasonable,    which   it   is   if   death   is   not

substantially certain to result from the insured's conduct.            This

holding was appropriate.

      AIG, as it did in the district court, relies on the Fourth

Circuit cases and Sigler from the Eighth Circuit to furnish the

applicable standard, and asserts here that such a standard is

really no different from the Wickman rendition. Under those cases,

however, it need be only foreseeable that death "could" result, not

that death was "highly likely." Of course, AIG's position that the

versions are indistinguishable means that it is content with the

Wickman approach.

      This leaves us with the question whether the district court

erred in holding that, as a matter of law, the autoerotic conduct

in this case did not risk death to a "substantial certainty" (or

its equivalents).   In our opinion, there was no error.       The record

is silent on whether and how often Todd had previously practiced

this conduct without dying.       But the materials before the court

clearly indicated that the likelihood of death from autoerotic

activity falls far short of what would be required to negate

coverage under the policy we have before us.

      In a treatise on autoerotic deaths, the authors observe that


                                   18
"[a]utoerotic or sexual asphyxia refers to the use of asphyxia to

heighten sexual arousal, more often than not with a nonfatal

outcome."    Hazelwood, Dietz & Burgess, Autoerotic Fatalities 49

(1983).9    Similarly, the experts in the Tommie case testified that

death from the practice would be considered unusual, 

, and the court in the Kennedy case ruled that the risk of

death from autoerotic practice is "not of such a nature that [the

decedent] knew or should have known that it probably would result

in death.    Death was not a normal expected result of the 

.     In addition, an article by Jane Brody in the

New York Times of March 27, 1984, observes that, according to

researchers, "[i]n a small but significant number of cases" of

autoeroticism, "the person dies before he can restore his oxygen

supply."

     We cannot say the trial judge erred in his final ruling on

this phase of the case.    AIG complains that it was error to grant

summary judgment to Mrs. Todd but does not allege that there was a

factual dispute that required a trial;        it asks only that we

reverse and order judgment for AIG on its claim that no death from

autoeroticism can be deemed an accident.    This left to the judge to

decide as a matter of law whether the risk of death from autoerotic

     9
      "The empirical study of autoerotic fatalities based on
submitted cases was initiated by Roy Hazelwood in the Behavioral
Science Unit of the FBI Academy at about the same time as Park
Dietz was tracing the history of the subject while at Johns
Hopkins and the University of Pennsylvania. Ann Burgess, who had
been conducting studies of victims of sexual assault, proposed
that we collaborate. This book is the product of that
collaboration." Hazelwood, Dietz & Burgess, Autoerotic
Fatalities, ix.

                                  19
activity    in    general        is   sufficient    to    deny    coverage      as

nonaccidental.     As we see it, the trial court ruled correctly.

       We add this postscript to this part of the case.                 It may be

that all this writing is necessary to affirm this part of the

judgment for appellee, but it is doubtful that it should have any

longlasting significance for deciding cases like this.                  The life

insurance companies have ample ways to avoid judgments like this

one.

                                        B.

        After concluding that appellee was entitled to payment of

benefits for Todd's death under the E-Systems accidental death

insurance policy, the district court went on to hold that liability

for those payments also extends, by virtue of a breach of fiduciary

duty, to the GAI Plan itself and to Roberts, the E-Systems plan

administrator.       The    court     determined    that,    "[b]ased     on   the

overwhelming     amount     of    evidence   that   Mr.     Todd's   death     was

"accidental' within the parameters of the policy as drafted this

Court finds that the Plan Administrator did abuse his discretion in

denying    Plaintiff's     request     for   benefits     under   the    policy."

Memo.Op. 21.     The court noted that the policy included no specific

grant of discretionary authority to the administrator to construe

plan terms, and it focused upon the claims examiner's apparent

reliance, in part, upon a conclusion that Todd engaged in "risky

behavior" when no such caveat is stated or explained in the policy.

Because appellee did not seek damages greater than the amount of

benefits denied, see Massachusetts Mutual Life Ins. Co. v. Russell,


                                        20


, 

, 

(1985), the district

court concluded that both GAI and Roberts were proper parties. The

appellants argue that the district court erred in entering judgment

against Roberts and the GAI Plan because there was no evidence of

a breach of fiduciary duty on their part.          We agree.

      ERISA requires that a fiduciary, such as a plan administrator:

      [S]hall discharge his duties with respect to a plan solely in
      the interest of the participants and beneficiaries and (A) for
      the exclusive purpose of:        (i) providing benefits to
      participants and their beneficiaries;     and (ii) defraying
      reasonable expenses of administering the plan; [and] (B) with
      the care, skill, prudence, and diligence under the
      circumstances that a prudent man acting in a like capacity and
      familiar with such matters would use in the conduct of an
      enterprise of a like character and with like aims....

29 U.S.C. § 1104(a)(1).        The statute then provides that "[a]ny

person who is a fiduciary with respect to a plan who breaches any

of   the   responsibilities,   obligations,   or    duties     imposed   upon

fiduciaries ... shall be personally liable to make good to such

plan any losses to the plan resulting from such breach...."                 29

U.S.C. § 1109(a).    However, ERISA also provides that "[a]ny money

judgment ... against an employee benefit plan shall be enforceable

only against the plan as an entity and shall not be enforceable

against any other person unless liability against such person is

established    in   his   individual    capacity...."        29    U.S.C.    §

1132(d)(2).

       We have already concluded that the administrator made an

erroneous decision in denying benefits in this case.              We disagree

with the district court, however, that the administrator's reading

of the policy in this case (through the claims examiner) "is


                                   21
tantamount       to   rewriting    the     policy"    and   that   his   behavior

"constitutes a blatant abuse of discretion" that rises to the level

of a breach of fiduciary duty.              Memo. Op. 21.     Initially, it is

important to note that our review of the record reveals no evidence

that Roberts, as plan administrator, was personally involved in

this case in any way.        Moreover, as we discuss above, the claims

examiner was required to make some determination of the risk

involved in the autoerotic activity in evaluating whether Todd's

death resulted from an "accident" within the meaning of the policy.

Indeed,    the    examiner's      letter    recited    language    substantially

similar to that employed by courts deciding similar cases.                    We

disagree with the conclusion reached, but not with the examiner's

basic analytical approach.         Every erroneous benefits determination

does not rise to the level of a breach of fiduciary duty, and

appellee has failed to demonstrate that Roberts breached the

statutory standard prescribed by ERISA.

         Appellants also contend that the GAI Plan, as the employee

welfare benefit plan maintained by E-Systems, is not a fiduciary

under ERISA because it is only the source of benefits—i.e., a

conduit for payment by AIG—and performs no fiduciary functions.

Again, although the record is rather sparse on this point, we

agree.    ERISA defines the term "fiduciary" as follows:

     [A] person is a fiduciary with respect to a plan to the extent
     (i) he exercises any discretionary authority or discretionary
     control respecting management of such plan or exercises any
     authority or control respecting management or disposition of
     its assets, (ii) he renders investment advice for a fee or
     other compensation, direct or indirect, with respect to any
     moneys or other property of such plan, or has any authority or
     responsibility to do so, or (iii) he has any discretionary

                                           22
     authority   or    discretionary    responsibility     in   the
     administration of such plan.

29 U.S.C. § 1002(21)(A).     Given that an ERISA plan as an entity

cannot have discretionary authority over itself, we conclude that

the GAI Plan does not fall within the statutory definition of a

fiduciary and therefore cannot be liable for breach of duty.

                                 C.

      Under ERISA, "the court in its discretion may allow a

reasonable attorneys' fee and costs of action to either party." 29

U.S.C. § 1132(g)(1).    Such an award, as the statute states, is

purely discretionary;      the Fifth Circuit reviews the district

court's decision only for an abuse of discretion.     Salley v. E.I.

DuPont de Nemours & Co., 

, 1016 (5th Cir.1992).    The

court has generally required, however, that the following five

factors be considered in deciding whether to award attorneys' fees

to a party under § 1132(g)(1):

     [A] court should consider such factors as the following: (1)
     the degree of the opposing parties' culpability or bad faith;
     (2) the ability of the opposing parties to satisfy an award of
     attorneys' fees;    (3) whether an award of attorneys' fees
     against the opposing party would deter other persons acting
     under similar circumstances;       (4) whether the parties
     requesting attorneys' fees sought to benefit all participants
     and beneficiaries of an ERISA plan or to resolve a significant
     legal question regarding ERISA itself; and (5) the relative
     merits of the parties' position.

Iron Workers Local No. 272 v. Bowen, 

, 1266 (5th

Cir.1980).   While other circuits have asserted that a presumption

exists under ERISA in favor of awarding costs and attorneys' fees,

that is not the law in the this Circuit.   Harms v. Cavenham Forest

Industries, Inc., 

, 694 (5th Cir.1993).    In this case,


                                 23
the district court does not appear to have considered the Bowen

factors in making its award.       Indeed, the court simply awarded the

amounts requested in counsel's affidavit (one third of the amount

of judgment, or $40,000, plus an additional $15,000 for this

appeal).

     The appellants object to the award of attorneys' fees in this

case on a narrower ground, arguing that the district court abused

its discretion in making the award without considering the amount

of time expended and the hourly rate.                The Supreme Court has

endorsed the "lodestar" method for calculating attorneys' fees

under federal "fee shifting" statutes.           See Hensley v. Eckerhart,

, 433, 

, 1939, 

(1983).             The

standards   set   forth    in   that   case,   the   Court   explained,   "are

generally applicable in all cases in which Congress has authorized

an award of fees to a "prevailing party.' "            

n. 

n. 7.       Of course, ERISA does not use the "prevailing

party" language in its attorneys' fees provision.            In later cases,

however, the Supreme Court has consistently emphasized that the

lodestar calculation provides an appropriate, objective basis on

which to make an initial estimate of the value of a lawyer's

services.   See, e.g., Pennsylvania v. Delaware Valley Citizens'

Council for Clean Air, 

, 564, 

, 3097, 

(1986).        And this court has approved the use of the

lodestar calculation in ERISA cases, even if it has not been

explicitly required.       See, e.g., 

.

      In an ERISA case, the determination of attorneys' fees


                                       24
requires the district court to apply a two-step analysis.                           The

court must     first       determine    whether      the    party   is   entitled    to

attorneys' fees by applying the five factors enumerated in Bowen.

If the court concludes that the party is entitled to attorneys

fees, it must then apply the loadstar calculation to determine the

amount   to    be       awarded.      This    calculation     is    accomplished    by

multiplying the number of hours expended on the matters at issue in

the   case    by    a    reasonable    hourly      rate.     See    Delaware   Valley

Citizens' 

, 106 S.Ct. at 3097;                      see also

.             This two-step analysis in ERISA cases

does not permit the award of a percentage of the recovery, such as

is customary in contingent fee cases.                Therefore, we find that the

district court abused its discretion by failing to apply both the

Bowen factors and the loadstar calculation. Accordingly, we vacate

the district court's order concerning attorneys' fees and remand

for a proper determination of the amount, if any, to which appellee

is entitled through the application of the two-step analysis

articulated above.

                                         III.

      In summary, we hold that Todd's death resulted from a "bodily

injury caused by an accident" within the meaning of the accidental

death insurance policy at issue;                  we AFFIRM the district court's

judgment on this point.            We REVERSE the district court's decision,

however, insofar as it holds the GAI Plan and Roberts liable for

the payment of benefits to appellee.                       Finally, we VACATE the

court's judgment on attorneys' fees and REMAND for recalculation.


                                             25
It is so ordered.




                    26