RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0414p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                                Plaintiff-Appellee, -
 NANCY M. LENNON,
                                                      -
                                                      -
                                                      -
                                                          No. 06-2234
         v.
                                                      ,
                                                       >
 METROPOLITAN LIFE INSURANCE CO.,                     -
                             Defendant-Appellant. N
                      Appeal from the United States District Court
                     for the Eastern District of Michigan at Detroit.
                    No. 05-73450—Patrick J. Duggan, District Judge.
                                      Argued: July 18, 2007
                              Decided and Filed: October 10, 2007
              Before: BOGGS, Chief Judge; CLAY and ROGERS, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Amy K. Posner, METLIFE GROUP, INC. LAW DEPARTMENT, Long Island City,
New York, for Appellant. Edward G. Lennon, HYMAN & LIPPITT, Birmingham, Michigan, for
Appellee. ON BRIEF: David M. Davis, HARDY, LEWIS & PAGE, Birmingham, Michigan, for
Appellant. Edward G. Lennon, HYMAN & LIPPITT, Birmingham, Michigan, Brian D. Figot,
WEISMAN, YOUNG, SCHLOSS & RUEMENAPP, Bingham Farms, Michigan, for Appellee.
       ROGERS, J., delivered the opinion of the court. BOGGS, C. J. (pp. 8-9), delivered a
separate opinion concurring in the judgment. CLAY, J. (pp. 10-16 ), delivered a separate dissenting
opinion.
                                       _________________
                                           OPINION
                                       _________________
        ROGERS, Circuit Judge. The question in this case is whether it is arbitrary and capricious
for an ERISA plan administrator to deny Personal Accident Insurance benefits to the beneficiary of
an insured who died as result of his own drunk driving. The insurance policy at issue covered
“accidents” but did not specifically define the term to exclude deaths that resulted from an insured
driver’s drunk driving. The district court held that, although the beneficiary, David Lennon, drove
with a blood-alcohol level three times the legal limit, he did not reasonably expect to lose his life
and that his death was thus accidental. The district court therefore ruled against MetLife and in
favor of Lennon’s beneficiary, his mother Nancy, on her ERISA claim. Because MetLife could
reasonably conclude that death caused by grossly negligent drunk driving is not accidental, it was
not arbitrary and capricious for MetLife to do so. We therefore reverse.

                                                 1
No. 06-2234                     Lennon v. Metropolitan Life Insurance Co.                                          Page 2


         The result of drunk driving in this case was sad indeed. On June 2, 2003, Lennon, a young
General Motors Acceptance Corporation accountant, drove his 2003 Chevrolet Trailblazer for the
last time. At approximately 2:30 in the morning, Lennon’s car flew     down a dry and well-lit divided
boulevard in Pontiac, Michigan into a wall twenty feet away,1 and police found Lennon with no
pulse. He died two days later. The evidence shows that Lennon was under the influence of alcohol
at the time of the accident. According to a test that the hospital conducted, Lennon’s alcohol plasma
level was 0.372 mg/dl, which is the equivalent of a blood-alcohol level of 0.321.2 The results show
that Lennon’s blood-alcohol level was more than three times the legal      blood-alcohol limit of 0.10
that Michigan had in effect at the time. See MCL § 257.625(1)(b).3
       Within a month of Lennon’s death, Lennon’s mother, the plaintiff in this lawsuit, sought to
recover Personal Accident Insurance benefits from MetLife. MetLife denied payments for Lennon’s
Personal Accident Insurance, although it paid to Lennon’s beneficiary proceeds from Lennon’s basic
and option life insurance. The relevant portion of MetLife’s Personal Accident Insurance policy
provided:
         If, while insured for Personal Accident Insurance, an [insured] sustains accidental
         bodily injuries, and within one year thereafter shall have suffered loss of life . . . as
         a direct result of such bodily injuries independently of all other causes, [MetLife]
         shall pay the benefit specified for such Losses.
(emphasis added). The policy also provided an exclusion:
         In no case shall payment be made for any loss which is contributed to or caused,
         wholly or partly, directly, or indirectly, by . . . suicide, attempted suicide or self-
         inflicted injury while sane or insane.
The policy provided for other exclusions, not relevant here.
       MetLife’s letter denying benefits explained that Lennon’s drinking “impair[ed his] judgment
and physical and mental reactions” and that Lennon’s blood-alcohol level was three times the legal

         1
           The parties both rely on a police diagram of the accident scene, but dispute its meaning. MetLife argues that
the diagram shows that Lennon drove the wrong way down a one-way portion of Woodward Avenue, while the plaintiff
argues that the diagram undermines MetLife’s interpretation. Because the diagram clearly shows an arrow indicating
the direction of Lennon’s vehicle going down the street in the opposite direction of an arrow indicating “One Way,”
MetLife’s interpretation is more consistent with the drawing.
         2
          The plaintiff argues that the administrative record did not establish a conversion factor between alcohol-plasma
levels and blood-alcohol levels. The plaintiff, however, does not argue that the conversion is incorrect. Because she
merely argues that the record lacks evidence that shows that the conversion is correct but does not dispute the correctness
of the conversion, we will assume that MetLife’s calculations are correct.
         3
            The plaintiff points to three pieces of evidence to suggest that alcohol was not responsible for Lennon’s death.
First, the police report from the accident did not indicate whether alcohol was responsible for the accident, and an officer
wrote in the police report that he “did not smell an odor of intoxication on Lennon or in his vehicle at the scene.”
Second, a June 3, 2003, report indicated that the tests did not detect ethyl alcohol or methyl alcohol. Third, the death
certificate indicated that Lennon died as a result of an “accident” that caused blunt force head and neck trauma, and
complications; the death certificate did not list the cause of death as drunk driving or alcohol.
          None of this evidence directly undermines MetLife’s conclusion that Lennon’s blood-alcohol level was three
times the legal limit. The responding officer’s report, for example, does not directly contradict the laboratory results
because an officer’s failure to detect or record the presence of alcohol does not mean that alcohol was not present. In
addition, the plaintiff does not explain how the lack of ethyl alcohol or methyl alcohol contradicts the other blood-alcohol
test. Finally, the medical examiner’s preliminary conclusions as to the cause of death do not preclude a subsequent
finding that Lennon suffered the “blunt force” as a result of his drunk driving.
No. 06-2234                      Lennon v. Metropolitan Life Insurance Co.                                             Page 3


limit. “The act of driving impaired,” the letter read, “rendered the infliction of serious injury or
death reasonably foreseeable and, hence, not accidental as contemplated by the GM Plan.” MetLife
therefore concluded that Lennon’s death was not “directly the result of accidental injuries,
independent[] of all other causes.” MetLife also concluded that “the mental and physical
impairments caused by the voluntary consumption    of alcohol . . . constitute intentional self-inflicted
injuries under the GM Plan [exclusion].”4
         In December 2003, the plaintiff challenged MetLife’s denial of Personal Accident Insurance
coverage, and on May 26, 2004, Met Life upheld its earlier decision. The record, however, contains
only one document for the period from December 2003 to May 2004. That document noted, “New
revisions to [Michigan’s blood-alcohol] law,” and it instructed a MetLife employee to “attach
another copy of the [December] 30 . . . letter to the att[orne]y.” At the time that MetLife denied the
plaintiff’s challenge to MetLife’s initial decision, it had the police report, medical examiner’s
records, and the Alcohol Plasma results.
         In its May 26, 2004, letter (which MetLife did not release until June 8, 2004) MetLife noted:
         The Death Certificate lists the cause of death as “Blunt Force Head and Neck
         Trauma and Complications.” The State of Michigan Traffic Crash Report . . . states
         that [Lennon] lost control of his vehicle while crossing Woodward. [Lennon’s]
         vehicle was seen coming from the center median and then hitting the eastbound curb
         causing the vehicle to become airborne and strike a brick wall. . . . The Medical
         Examiner’s report states that [Lennon] was under the influence of alcohol and
         recorded a blood alcohol level of .37% [which was more than] the legal limit under
         Michigan law.
The letter also reiterated the two grounds for denying Lennon coverage: (1) “the act of driving while
so impaired rendered the infliction of serious injury or death reasonably foreseeable, and, hence, not
accidental as contemplated by the plan,” and (2) “the mental and physical impairments caused by
the voluntary consumption of excessive amounts of alcohol constitute intentional self-inflicted
injuries under the plan.” Finally, the letter cited a series of cases in which courts found that drunk
driving does not constitute an “accident” for ERISA purposes.
        The plaintiff challenged MetLife’s decision in federal district court, and the district court
ruled against MetLife. The district court, quoting West v. Aetna Life Insurance Co., 

856, 904 (N.D. Iowa 2001), noted that a person “is far more likely to be arrested for driving while
intoxicated than to die or be injured in an alcohol related automobile crash, and far more likely to
arrive home than to be either arrested, injured, or killed,” and concluded that MetLife acted in an
arbitrary and capricious manner by relying solely on Lennon’s blood-alcohol level to determine that
his death was not an accident. Finally, the district court rejected MetLife’s argument that Lennon’s
death was a result of a self-inflicted injury.
        MetLife did not act arbitrarily and capriciously when it found that Lennon did not die as a
result of an “accident” under the plan where  Lennon’s death resulted from his driving with a blood-
alcohol level three times the legal limit.5 Because General Motors’ policy with MetLife conferred


         4
           There is some record evidence that MetLife adopted a form letter when it initially denied benefits in this case.
The record contains a hand-written note instructing a MetLife employee to “Pl[ea]s[e] see sample DWI denial letter.
Use it for a guide.”
         5
             The plaintiff initially argues that the plain language of the plan requires MetLife to provide benefits in this
case. MetLife’s plan provided that it would pay an insured who sustained “accidental bodily injuries and within one
year . . . suffer[s] loss of life . . . as a direct result of such bodily injuries independently of all other causes.” (emphasis
No. 06-2234                    Lennon v. Metropolitan Life Insurance Co.                                          Page 4


discretionary authority to MetLife as an ERISA fiduciary to interpret terms of the plan, this court
reviews MetLife’s decisions under an arbitrary-and-capricious standard. Whitaker v. Hartford Life
& Accident Ins. Co., 

, 949 (6th Cir. 2005). The record in this case establishes that
Lennon’s behavior was, to borrow a term sometimes used in tort law, grossly negligent. Lennon
broke the law by driving with a blood-alcohol level three times the legal limit, knowing that his
drunk and severely impaired driving created a significant risk of bodily harm or death to others and
to himself, and the precautions that would eliminate or reduce this risk (e.g., taking a taxi, or staying
at a nearby hotel or with a friend) involved burdens that are so slight relative to the magnitude of
the risk as to demonstrate Lennon’s indifference to the risk. See generally RESTATEMENT (THIRD)
OF TORTS § 2 (Proposed Final Draft No. 1, 2005). As a prominent tort law treatise explains:

         Gross negligence can be used to mean what it says—a high, though unspecified
         degree of negligence. Presumably this means conduct that is appreciably more risky,
         or less beneficial, than conduct qualifying as ordinary negligence. . . . The idea of
         reckless, willful or wanton misconduct is similar in that the risk-utility balance
         strongly disfavors the defendant’s conduct—the risk was high, or very serious harm
         was threatened, or the cost of avoiding the danger was very low. . . . The defendant
         is guilty of reckless, willful or wanton misconduct only if he was conscious of the
         risk or had specific reason to know about it and proceeded without concern for the
         safety of others. . . . Although reckless, willful, or wanton misconduct is not the
         same as intentional harm, in extreme cases courts may treat wanton misconduct more
         like an intentional tort than like negligence.
DAN R. DOBBS, THE LAW OF TORTS §147, at 350–51 (2000). If tort law can treat such conduct the
same way it treats intentional conduct, it is not arbitrary and capricious for an ERISA plan
administrator to treat such conduct as not accidental under a policy that only covers accidents.
        Driving while very drunk can certainly be placed in this category of activity. As the Seventh
Circuit explained, albeit in a different context:
         Drunk driving is a reckless act, perhaps an act of gross negligence. Any drunk driver
         who takes to the road should know he runs a risk of injuring another person [or
         himself]. The extent of the risk will of course 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.
United States v. Rutherford, 

, 376 (7th Cir. 1995); cf. United States v. Veach, 

, 636–37 (6th Cir. 2006) (prior conviction for drunk driving is a “crime of violence” for federal
sentencing purposes). This case involved facts—Lennon’s extremely high blood-alcohol content,
the manner in which Lennon’s car flew off the road, the lack of an alternative explanation for the
death, and Lennon’s driving the wrong way down the street—that rendered at least reasonable
MetLife’s conclusions that Lennon did not die as a result of an “accident” under the Plan.
        Our conclusion that MetLife did not decide arbitrarily and capriciously is consistent with this
court’s opinion in Cates v. Metropolitan Life Insurance Co., No. 96-6600, 

(6th
Cir. June 30, 1998). In Cates, this court, albeit in an unpublished opinion, found that MetLife did
not act arbitrarily and capriciously when MetLife denied benefits to an insured’s beneficiary on the
grounds that the insured’s “act of driving while so impaired rendered the infliction of [serious] injury


added). Plaintiff argues that the term “accidental” only modifies “bodily injuries” and that the term does not modify
“loss of life.” To succeed with this argument, however, the plaintiff (as she implicitly recognizes) must prove that the
bodily injuries in this case were not “accidental,” an issue resolved below, and the beneficiary’s first argument collapses
into her main argument.
No. 06-2234                Lennon v. Metropolitan Life Insurance Co.                             Page 5


or death reasonably foreseeable and, hence, not accidental as contemplated by the plan.” 

Cates’ blood-alcohol level was 0.18%, almost twice the Tennessee limit of 0.10%, 

and the
terms of Cates’ insurance plan were similar to those at issue in this case. Cates v. Metro. Life Ins.
Co., 

, 1025 (E.D. Tenn. 1996). The district court (and this court when it
incorporated the district court opinion, Cates, 

, at *3) held that MetLife’s decision
was not arbitrary and capricious because several federal courts “reviewing ERISA cases have
recognized that foreseeable harm resulting from an insured’s intentional actions is not accidental.”

.
        Although this court in Cates did not provide an extensive analysis of its reasoning, other
courts of appeals have reached the same result after more extensive discussions. In Eckelberry v.
ReliaStar Life Insurance Co., 

(4th Cir. 2006), for example, the Fourth Circuit held that
an ERISA fiduciary did not act unreasonably when it denied benefits to an insured beneficiary after
the insured died from driving with a blood-alcohol level of 0.15, which was 50% higher than the
legal limit. 

The court reasoned that, regardless of whether the standard for non-accident
was “high likelihood” of injury or “reasonable foreseeability” of injury, “federal courts have found
with near universal accord that alcohol-related injuries and deaths are not ‘accidental’ under
insurance contracts governed by ERISA.” 

(citing cases). They do so because “the
hazards of drinking and driving are widely known and widely publicized [and] the insured should
have known that driving while intoxicated was highly likely to result in death or bodily harm.” 

(citation and quotation marks omitted).
        In Cozzie v. Metropolitan Life Insurance Co., 

(7th Cir. 1998), the Seventh
Circuit held that MetLife did not act arbitrarily and capriciously when it denied benefits after an
insured died with a blood-alcohol level of 0.252. 

The MetLife plan at issue did not
define “accident” and the court held that MetLife reasonably defined “accident” as “not reasonably
foreseeable.” 

Of note, the court stated that “MetLife’s interpretation is rational
because it is consistent with the goals of the plan [namely] . . . to provide . . . insurance against the
tragedy of unexpected death by providing additional benefits for those who experience such a loss
and all its consequent tremors.” 

Denying benefits to some, the court reasoned,
“ensure[s] that payments are reserved for those who truly fall within the terms of the policy.” 

very number of cases holding similarly to Eckelberry and Cozzie independently
supports the conclusion that MetLife’s determination was not arbitrary and capricious. See Poeppel
v. Hartford Ins. Co., 87 F. App’x 885, 886 (4th Cir. 2004); Gilbert v. Estate of Cox, No. 05-283-
JBC, 

, at *3 (E.D. Ky. July 10, 2007); Richardson v. Mutual of Omaha Ins. Co.,
No. 3:06CV-197-H, 

, at *3 (W.D. Ky. May 31, 2007); Weatherall v. ReliaStar
Life Ins. Co., 

, 924 (W.D. Wis. 2005); Nelson v. Sun Life Assurance Co. of
Canada, 

, 1012 (W.D. Mich. 1997).
        We nevertheless recognize the logical force of the district court’s analysis in this case.
Driving drunk is stupidly risky, but perhaps not statistically more risky than actions we might be
loath to condemn, such as test piloting or grabbing a child from in front of an oncoming train. We
do not doubt the accuracy of the observation that a person “is far more likely to be arrested for
driving while intoxicated than to die or be injured in an alcohol-related automobile crash, and far
more likely to arrive home than to be either arrested, injured, or killed.” See West, 

at 904. Lennon also notes,“one out of every 9,128 alcohol-impaired trips results in a crash that
causes a fatality.” See Eckelberry v. ReliaStar Life Ins. Co., 

, 712 (S.D. W.Va.
2005). One is more likely to be struck by lightning, according to the plaintiff, than to die as a result
of one’s own drunk driving. 

well question the relevance of such ratios to a case like the present one where
there is evidence that Lennon’s blood-alcohol level was 0.321, over three times the legal limit, so
No. 06-2234                    Lennon v. Metropolitan Life Insurance Co.                                          Page 6


that Lennon’s trip was not merely “alcohol-impaired.” We can take judicial notice of the fairly
obvious scientific fact that as blood-alcohol levels rise, “so does the risk of being involved in a fatal
crash.” Nat’l Hwy. Traffic Safety Admin., U.S. Dep’t of Transp., Setting Limits, Saving Lives: The
Case for 0.08 BAC Laws, DOT HS 809 241, Apr. 2001, at Sec. IV; see also
http://en.wikipedia.org/wiki/Blood_alcohol. Thus, drivers with blood-alcohol levels above the legal
limit as a group are far more likely to arrive home safely than drivers who are extremely drunk. See
Stamp v. Metro. Life Ins. Co., 

, 432 (D.R.I. 2006) (“The statistics . . . are
meaningless in this context. . . . They do not consider . . . the degree of his intoxication.”).
        We assume for the purposes of argument, however, that persons who drive while very drunk
may have a better than even, or even a pretty good, chance of not being injured. This does not keep
the activity from being reckless. The same could be said, after all, of a person playing Russian
roulette, who may have a 5 out of 6 chance of not being injured. What is dispositive, however, is
that at some point the high likelihood of risk and the extensive degree of harm risked, weighed
against the lack of social utility of the activity, become not marginally but so overwhelmingly
disproportionate that the resultant injury may be outside a definition of “accidental” that is not
unreasonably narrow.
        Of course, “accidental” could perhaps be more broadly defined to include dangerous activity
as long as injury is not intended or substantially certain. Drunk driving injuries might fit within6such
a definition. If our review were de novo, this possibility would require serious consideration. But
under arbitrary-and-capricious review we need not decide what is the best reading of words in the
insurance policy, but whether the plan administrator’s interpretation is arbitrary. Interpreting the
result of reckless drunk driving as not “accidental” for the driver is not arbitrary.
         We do not need to go further in this case. In particular, we do not reach the question of
whether a fiduciary can reasonably deny “accidental” benefits for injury that results from any
negligent or any illegal behavior, or from driving while only somewhat impaired. See 

(distinguishing drunk driving from driving while fiddling with the radio dial);

(“We do not mean to suggest that MetLife could sustain a determination
that all deaths that are causally related to the ingestion of alcohol, even in violation of law, could
reasonably be construed as not accidental.”); cf. RESTATEMENT (SECOND) OF TORTS §500 cmt. e
(1965) (“The mere fact that certain precautions are required by a statute . . . does not of itself make
the intentional omission of the statutory precaution reckless indifference [unless] the precautions
required [are] such that their omission will be recognized as involving a high degree of probability
that serious harm will result.”). Nor does today’s holding extend to risky activities that may have
social value greater than driving drunk, such as skiing, or driving over the speed limit to get a
woman in labor to the hospital. Instead, the conclusion is only that because Lennon’s conduct
constituted reckless and entirely unwarranted risk to himself, it was not arbitrary and capricious for
MetLife to treat the injury as nonaccidental under the terms of its policy.


         6
           The concurrence unfortunately misreads this opinion as “address[ing] the question whether it was correct, as
a matter of substantive law, for MetLife to deny benefits here, rather than the question whether or not it was merely
arbitrary and capricious to do so.” As a fair reading of this opinion—and particularly of the statement here in the
text—shows, I would base affirmance entirely on the arbitrary-and-capricious scope of review, and reserve judgment
on the correctness (without regard to deference) of treating the incident as an accident under the policy.
          Moreover, while the concurrence would rely only on other federal court cases, which in turn rely simply on
likelihood of harm, to uphold the insurance company’s determination under the arbitrary-and-capricious standard, such
reliance without more implies that high likelihood of injury is sufficient to uphold denial of accident insurance whenever
the arbitrary-and-capricious standard applies. The instant opinion is intended to avoid making that implication in favor
of the insurance companies. There may be cases—different from the instant case—in which high likelihood of injury
is not sufficient to say that activity was not accidental. We need not go beyond reckless conduct to conduct that is simply
“highly likely” to cause injury, and I would not do so.
No. 06-2234              Lennon v. Metropolitan Life Insurance Co.                          Page 7


        Because it was not arbitrary and capricious for MetLife to find that Lennon’s death was not
“accidental,” we need not reach MetLife’s argument that Lennon’s death was a result of self-
inflicted injury.
       For the foregoing reasons, the judgment of the district court is reversed.
No. 06-2234               Lennon v. Metropolitan Life Insurance Co.                            Page 8


                            ___________________________________
                             CONCURRING IN THE JUDGMENT
                            ___________________________________
        BOGGS, Chief Judge, concurring in the judgment. Although I agree that MetLife did not
act arbitrarily and capriciously in determining that David Lennon’s fatal collision was not an
“accident” as contemplated by the terms of GM’s Personal Accident Insurance, I reach this
conclusion on somewhat different grounds than the lead opinion does. A major portion of that
opinion appears to address the question whether it was correct, as a matter of substantive law, for
MetLife to deny benefits here, rather than the question whether or not it was merely arbitrary and
capricious to do so. The court’s discussion of concepts from negligence law, which leads it to
answer the former question in the affirmative, is not required to answer the latter.
        The heart of the district court’s error lies in its evaluation of the seminal case of Wickman
v. Northwestern Nat’l Ins. Co., 

(1st Cir. 1990), and its progeny. In Wickman, the
First Circuit–aware that it might well be “miring in a Serbonian bog”–attempted to develop a
standard by which to determine what constitutes an accident for ERISA purposes. 

The
Wickman court concluded that, outside the comparatively rare case where evidence indicates that
the victim actually expected the injury suffered, “one must ask whether a reasonable person, with
background and characteristics similar to the insured, would have viewed the injury as highly likely
to occur as a result of the insured's intentional conduct.” 

(emphasis added).
        Wickman’s standard, as stated, is a high bar, and arguably many collisions involving a drunk
driver would not meet it: as a number of courts have noted, the number of drunk driving arrests
swamps the number of drunk driving injuries or deaths, making it difficult to conclude that an
injurious collision is “highly likely to occur as a result” of driving while intoxicated. See, e.g.,
Eckleberry v. ReliaStar Life Ins. Co., 

, 712 (S.D. W.Va. 2005); West v. Aetna
Life & Accident Ins. Co., 

856, 904 (N.D. Iowa 1985). A number of courts,
including at least one district court in this circuit, applying this standard as formulated above, have
found a specific drunk-driving collision to be accidental. See, e.g., Harrell v. Metro. Life Ins. Co.,

(E.D. Mich. 2005).
        However, a number of courts–in particular, several district courts in this circuit–finding
Wickman persuasive and purporting to apply it, have (intentionally or not) modified its objective
standard from one of “high likelihood” to “reasonable foreseeability,” and have concluded that a
collision by a highly intoxicated driver (including a driver with a blood alcohol level comparable
to, and even considerably lower than, Lennon’s), being reasonably foreseeable, is not an accident.
See, e.g., Miller v. Auto-Alliance Int’l Inc., 

(E.D. Mich. 1997); Walker v. Metro.
Life Ins. Co., 

(E.D. Mich. 1997) (.29 g/100 ml); Nelson v. Sun Life Assurance
Co. Of Canada, 

(W.D. Mich. 1997) (.18 g/100 ml; reviewing de novo); Cates v.
Metro. Life Ins. Co., 

(E.D. Tenn. 1996) (.18 %), aff’d, 

(6th Cir.
1998) (unpublished); Fowler v. Metro. Life Ins. Co., 

(W.D. Tenn. 1996) (.26%).
        The district court examined these cases (all of which had been cited by MetLife in its second,
expanded denial letter), and found them “unpersuasive,” for failing to adhere to the “highly likely”
standard articulated in Wickman, and failing to identify “any evidence to support the conclusion that
an intoxicated driver clearly should foresee 

(emphasis added). If
the administrator’s decision here were subject to the district court’s de novo review, its rejection of
these cases in favor of the stricter standard advanced in Wickman (or some other standard entirely)
No. 06-2234                   Lennon v. Metropolitan Life Insurance Co.                                     Page 9


might have been appropriate.1 But when it reviews under an arbitrary and capricious standard, the
district court cannot simply substitute its judgment for that of the administrator. See, e.g., Motor
Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 

, 43 (1983). Given
that a number of courts, including several within this circuit, have approved characterizing drunk-
driving collisions involving drivers of comparable or lower intoxication levels as non-accidents for
ERISA purposes, there was no basis for the district court to conclude that MetLife’s decision to do
the same–under the set of facts presented here, articulated by MetLife and well-analyzed in detail
in the lead opinion–was arbitrary and capricious.
        Accordingly, I would reverse the judgment of the district court on the grounds that, in
following a standard adhered to by a number of courts, within and without this circuit, MetLife did
not act arbitrarily and capriciously, without reaching the question whether to approve or disapprove
that standard.




        1
           Though of course simply departing from the requirements of Wickman, which is not binding authority in this
circuit, would not itself be sufficient to reject these cases or the standard they articulate.
No. 06-2234                Lennon v. Metropolitan Life Insurance Co.                             Page 10


                                          _______________
                                             DISSENT
                                          _______________
        CLAY, Circuit Judge, dissenting. The majority opinion today marks a clear departure from
federal common law, an affront to common sense, and even more troublesome, an elevation of
moralistic judgments above the interpretation fairly attributable to the Personal Accident Insurance
(“PAI”) Policy before us today. In my view, the district court properly concluded that Defendant’s
interpretation of the PAI Policy was arbitrary and capricious. Accordingly, I dissent.
        At the heart of this dispute lies a question that should admit of a simple and straightforward
answer, and that would if the question were posed to any man on the street. The seemingly simple
question is whether a motorist intoxicated beyond the legal limit who crashes his vehicle has been
in an “accident,” or has been “accidentally” injured. A man on the street would answer “yes.” But
the question (or some form of it) was put to an ERISA plan administrator and then to a court. The
matter quickly became over complicated by exclusions read into express contractual language, by
standards of review, and by something akin to Cardozo’s great “Serbonian bog” – an unwieldy body
of legal precedent laced with not-so-subtle moralistic judgments. See Landress v. Phoenix Mut. Life
Ins. Co., 

, 499 (1934) (Cardozo, J., dissenting). At any rate, the question before this
Court is whether Defendant was arbitrary and capricious in denying Plaintiff benefits under the
insured’s PAI Policy. To answer this question, we must specifically decide whether Defendant was
arbitrary and capricious to find (1) that the insured was not “accidentally” injured, and (2) that the
insured sustained a “self-inflicted injury,” within the meaning of the PAI Policy.
        Arbitrary-and-capricious review properly applies here because the ERISA plan vests
Defendant, the plan administrator, with discretion to construe the terms of the PAI Policy. See
Firestone Tire & Rubber Co. v. Bruch, 

, 115 (1989); Jones v. Metropolitan Life Ins.
Co., 

, 660 (6th Cir. 2004). Although arbitrary-and-capricious review is
characteristically deferential, it “does not require us merely to rubber stamp the administrator’s
decision.” 

. Our obligation to exercise some review extends to “the quality
and quantity of the . . . evidence and the opinions on both sides of the issues.” McDonald v.
Western-Southern Life Ins. Co., 

, 172 (6th Cir. 2003). Our “deference need not be
abject.” 

extent that we do defer, however, it is only to the plan administrator’s
construction of terms in the policy, and we should not hesitate to conclude that a plan administrator
arbitrarily and capriciously interpreted a policy by adding exclusions or terms thereto under the
guise of interpretation. See 

.
I.      WHETHER THE INJURIES WERE “ACCIDENTAL”
         The PAI Policy at issue makes benefits payable when the insured “sustains accidental bodily
injuries, and within one year thereafter shall have suffered loss of life . . . as a direct result of such
bodily injuries independently of all other causes.” (J.A. at 153) Additionally, it expressly excludes
some losses from coverage on the basis of causation or mode. For example, no benefit will be paid
“for any loss which is contributed to or caused, wholly or partly, directly or indirectly, by . . .
suicide, attempted suicide or self-inflicted injury while sane or insane.” (Id. at 152) Notably, the
PAI Policy contains no exclusion for injuries sustained while driving under the influence of alcohol.
(See 

Nor does it define the terms “accident” or “accidental.” Nevertheless, Defendant
denied PAI benefits to Plaintiff in part on the ground that “[t]he act of driving while so impaired
No. 06-2234                    Lennon v. Metropolitan Life Insurance Co.                                      Page 11


rendered the infliction of serious injury or death reasonably foreseeable and, hence, not accidental
as contemplated by the plan.”1 (Id. at 201)
         We interpret ERISA plans “according to their plain meaning, in an ordinary and popular
sense.” Perez v. Aetna Life Ins. Co., 

, 556 (6th Cir. 1998). In my view, the most
natural reading of the word “accidental,” as it is used in its “ordinary and popular sense,” extends
to injuries sustained in motor vehicle crashes while the driver is under the influence of alcohol, even
at levels above the legal limit. The public would call the crash an “accident,” and the resultant
injuries or death “accidental.” See Wickman v. Northwestern Nat’l Ins. Co., 

, 1086
(1st Cir. 1990) (“Probably the best definition [of “accident”] is Cardozo’s tautology that an accident
is what the public calls an accident.”). This “plain” and “ordinary” meaning is borne out in the
insured’s death certificate, the police report, and the medical examiner’s report, all of which classify
the manner of death as an “accident.” It also comports with at least one dictionary definition of the
word. Webster’s dictionary defines “accidental” as “happening or ensuing without design, intent,
or obvious motivation or through inattention or carelessness.” Webster’s 3d New Int’l Dictionary
11 (1993). Certainly, an intoxicated motorist does not intend to crash, much less to die behind the
wheel while driving home. If the intoxicated motorist does crash his vehicle, the crash and any
concomitant injuries are “accidental” in the sense that they result from “inattention or carelessness.”
Lamentably though, given the extensive amount of ink spilled in federal and regional reporters over
the “ordinary” meaning of “accidental,” such popular conceptions of its meaning cannot be relied
upon in interpreting an ERISA plan. In fact, the2 barrage of case law on the subject suggests that the
meaning of “accidental” is anything but plain.
        Where no plain meaning can be discerned from the plan language, courts typically look to
the federal common law to assess the reasonableness of a plan administrator’s interpretation. See
Pilot Life Ins. Co. v. Dedeaux, 

, 56 (1987); 

; Buce v. Allianz Life
Ins. Co., 

, 1146 (11th Cir. 2001) (“[W]here the crucial terms of an accident policy are
defined with surpassing vagueness, . . . to deploy the federal common law of ERISA to give some
unity to the concept of ‘accident’ is sound judicial policy.”). The First Circuit in Wickman v.
Northwestern National Insurance Co. first forged a path for the federal common law on this
question. The insured in Wickman died after free-falling from a bridge onto railroad tracks 90 feet
below. 

. Just before the fall, a witness observed the insured standing
outside the bridge’s guardrail, holding onto it with one hand, at a point reachable only by walking
“head on into high speed traffic.” 

The insured’s accidental death policy defined an
“accident” vaguely, as “an unexpected, external, violent and sudden event.” 

The
ERISA plan administrator denied benefits, and the beneficiary filed suit. The Wickman court
surveyed state judicial interpretations of “accidental,” but after doing so, ultimately “elect[ed] to
pursue a path for the federal common law.” 

        The Wickman court set forth the following approach: First, the court said, consider “the
reasonable expectations of the insured when the policy was purchased.” 

. That is, did
the insured subjectively expect an injury similar in type to the kind suffered to follow from his
conduct? If the fact-finder determines that the insured did not expect such an injury, or if the fact-
finder cannot ascertain the insured’s subjective expectations, an objective analysis applies. 

          On the basis of the administrative record, I assume for purposes of this dissent that the insured was legally
intoxicated at the time of the crash.
         2
           Were this Court tasked with interpreting the language de novo, in view of the word’s apparent ambiguity, the
rule of contra proferentum would apply. See Marquette Gen. Hosp. v. Goodman Forest Indus., 

, 632 n.1
(6th Cir. 2003) (citing 

n.7). Ambiguity in the word “accident” would then be construed against
the plan administrator, thus extending coverage to the insured here. Because we review the plan administrator’s decision
under an arbitrary-and-capricious standard, the rule is not determinative.
No. 06-2234                Lennon v. Metropolitan Life Insurance Co.                             Page 12


objective analysis consists of a determination “whether a reasonable person, with background and
characteristics similar to the insured, would have viewed the injury as highly likely to occur as a
result of the insured’s intentional conduct.” 

If the insured “actually expected
the result, even if he did not specifically intend it,” then his subsequent death is not accidental. 

Applying its framework, the Wickman court concluded that the insured “knew or should
have known that serious injury or death was a probable consequence substantially likely to occur
as a result of his volitional act.” 

“either subjectively expected serious injury, or . . .
[o]bjectively, he reasonably should have expected serious injury when he climbed over the guardrail
and suspended himself high above the railroad tracks below.” 

reviewing courts have largely distorted the inquiry, seizing upon the
Wickman court’s conclusory words and eschewing the very test that it established. See, e.g., 

; Baker v. Provident Life & Accident Ins. Co., 

, 942-43 (4th Cir. 1999);
Cozzie v. Metropolitan Life Ins. Co., 

, 1109-10 (7th Cir. 1998). In essence, they have
given effect to the court’s summary statement that “objectively, [the insured] reasonably should have
expected serious injury” – a statement which, more likely than not, follows from the vaguely worded
definition of “accident” contained in the plan at issue there. See 

(noting
the plan vaguely defined “accident” as “an unexpected, external, violent and sudden event”)
(emphasis added). However, the conclusory language in Wickman should not be taken to replace
the test established earlier in the opinion, which speaks in stronger terms of injury “highly likely to
occur”and “probable consequence[s] substantially likely to occur,” and more closely achieves the
purpose of the objective inquiry – to determine whether a reasonable person actually expected the
result. Thus, 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.” As
a result, the federal common law has strayed from the path initially forged by the Wickman court.
 I would frame the objective inquiry as Wickman did, and would ask “whether a reasonable person,
with background and characteristics similar to the insured, would have viewed the injury as highly
likely to occur as a result of the insured’s intentional conduct.” 

. This
formulation clearly requires something greater than mere foreseeability.
        Here, the administrative record gives no indication of the insured’s subjective expectations
and, accordingly, the objective inquiry should guide this court in deciding whether Defendant
rendered an unreasonable interpretation of the PAI Policy. On the basis of Defendant’s denial letter,
Defendant evidently defines “accidental” to exclude acts which “render[] the infliction of serious
injury or death reasonably foreseeable.” (See J.A. at 201) Defendant’s interpretation of “accidental”
therefore does not comport with the Wickman court’s objective inquiry, which asks whether injury
was “highly likely to occur as a result of the insured’s” act. See 

. A
“highly likely” consequence is something probable, not merely possible. A reasonable person, with
a background and characteristics similar to the insured, undoubtedly knows that driving while
legally intoxicated entails risks of injury, death, arrest, and prosecution. However, knowledge of
the risk of injury or death – both potential consequences of driving while intoxicated – does not
equal knowledge of probable injury or death. Statistically speaking, legally intoxicated motorists
arrive safely at their destination without incident more often than not. Of those that do not, police
apprehend and arrest a great many legally intoxicated motorists. Comparatively, the number of
legally intoxicated motorists either injured or killed in crashes linked to alcohol is rather small.
         Illustratively, according to the National Highway Traffic Safety Administration, 17,105
people died in alcohol-related motor vehicle crashes in 2003, a figure that accounts for 40 percent
of all traffic-related deaths that year. The Federal Bureau of Investigation’s 2003 Uniform Crime
Report indicates that an estimated 1,448,148 motorists were arrested for driving under the influence
that year. Finally, the Substance Abuse and Mental Health Services Administration, in a report
issued September 2005, found an estimated 30.7 million persons nationwide took alcohol-impaired
No. 06-2234                   Lennon v. Metropolitan Life Insurance Co.                                    Page 13


trips during 2003.3 Even assuming only 10 million alcohol-impaired trips occurred that year, a mere
14.4 percent of impaired motorists were arrested, while 0.17 percent died in alcohol-related
incidents. Thus, injury or death most certainly cannot be deemed a “highly likely” consequence of
driving while intoxicated. See West v. Aetna Life Ins. Co., 

856, 904 (N.D. Iowa
2001) (“What ‘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 or be injured in
an alcohol related automobile crash, and far more likely to arrive home than to be either arrested,
injured, or killed.”).
         In effect, under the guise of interpretation, Defendant took it upon itself to rewrite the PAI
Policy by adding terms where none previously existed. See 

. Defendant
interpreted what should be an inclusive term to exclusionary effect, excluding coverage for
accidental injury following from acts which “render[] the infliction of serious injury or death
reasonably foreseeable.” As applied to Plaintiff’s claim, Defendant purports to interpret
“accidental” in this manner, but in reality add a new exclusion for accidental injury sustained by
legally intoxicated motorists. This sort of post-hoc requirement falls well outside the bounds of
Defendant’s discretion as a plan administrator interpreting an ERISA plan, which notably “does not
include the authority to add eligibility requirements to the plan.” See 

. What
is more, it renders meaningless several express exclusionary provisions, including exclusions for
flight in an aircraft while a student pilot, injuries caused in whole or part by war or war-like action,
or the use of drugs other than as prescribed by a physician.
         In fact, if injury or death were a “highly likely” or even “reasonably foreseeable”
consequence of driving while legally intoxicated, one would expect Defendant to expressly exclude
from coverage accidents which involved driving under the influence. As the plan drafter, Defendant
had every means at its disposal to do so. Yet, when Defendant drafted the PAI Policy, they elected
not to include express exclusionary language to that effect. Such language would undoubtedly have
foreclosed much litigation in this circuit alone over the coverage in Defendant’s PAI Policy.
Notably, according to Plaintiff’s brief on appeal, Defendant recently revised its PAI Policy to
explicitly exclude coverage for injuries sustained while “driving a vehicle while intoxicated as
defined by the laws of the jurisdiction in which the vehicle was being operated.” (See Pl.’s Br. at
32-33)
        At any rate, the scope of activities that “render[] the infliction of serious injury or death
reasonably foreseeable” is substantially expansive. To accept this formulation – the very words of
Defendant in denying PAI benefits here – would be to eviscerate accidental injury coverage in many
circumstances where the insured, on the basis of the policy language, would expect to be covered.
A few examples prove illustrative here. A motorist driving cross-country attempts to make it
another hour before stopping after an 18 hour day behind the wheel. The motorist is not speeding,
drives in accordance with the laws, and encounters no other vehicles but, ultimately, fatigue
overcomes him. He swerves off the road into a ditch and later dies from injuries sustained in the
crash. Another motorist drives 89 miles per hour on a road with a designated speed limit of 70.
Arriving at a turn in the road, that motorist spins out, unable to control his vehicle. He suffers injury
when his vehicle hits a cement wall in the road’s median and also dies. Finally, a man partakes in
bungee jumping for sport. He has successfully completed several jumps before, but on his last jump,
his safety harness fails and he plummets to his death. Under the PAI Policy language, an insured
would expect to be covered in each of these hypothetical situations. Yet, on Defendant’s reasoning,



        3
           The findings were annual averages calculated on the basis of combined data from 2002 and 2003. See Arrests
for Driving Under the Influence Among Adult Drivers, National Survey on Drug Use and Health,
http://oas.samhsa.gov/2k5/DUIarrests/DUIarrests.pdf.
No. 06-2234               Lennon v. Metropolitan Life Insurance Co.                            Page 14


which the majority affirms today, Defendant could deny coverage by calling the injury or death a
“reasonably foreseeable” result of the insured’s conduct.
        The reason why an insurance company would most likely not deny coverage in these
circumstances is simple: the absence of alcohol, drugs, or other circumstances rendering the action
morally questionable. In the final analysis, the “reasonably foreseeable” formulation is little more
than a tool enabling plan administrators and courts to transform moral judgments about the insured’s
conduct into arbitrary denials of coverage under vaguely worded ERISA plans. See, e.g., Eckelberry
v. Reliastar Life Ins. Co., 

, 346 (4th Cir. 2006) (“To characterize harm flowing from
[drunk driving] as merely ‘accidental’ diminishes the personal responsibility that state laws and the
rules of the road require.”); 

(“We cannot say . . . that MetLife’s
determination that the purposes of the plan are best served by acknowledging a qualitative difference
between the ingestion of a huge quantity of alcohol and other tragedies of human life . . . is
incompatible with the goals of the plan.”); Metropolitan Life Ins. Co. v. Potter, 

,
721 (D. N.J. 1998) (“‘[D]riving while intoxicated is too great a risk to be tolerated without penalty.
In today’s world, people who drink and drive must be charged with responsibility for their own
acts.’”) (quoting MetLife’s denial letter); see also Adam F. Scales, Man, God and the Serbonian
Bog: the Evolution of Accidental Death Insurance, 86 IOWA L. REV. 173, 299 (2000) (“Drunk
driving accidents are simply more senseless, more unforgivable, and altogether more deserving of
moral disapprobation than other accidents. But they are accidents nonetheless.”); 

(“To
label merely unforgivable conduct as intentional is to extend forever the moral liability of
voluntarily-undertaken acts. But equally voluntary conduct unaccompanied by evil or questionable
motives is typically treated differently.”). In some cases, the moral condemnation becomes even
more evident when one examines the plan administrator’s or the court’s selection between the two
divergent formulations of the Wickman objective analysis used by courts. See, e.g., Santaella v.
Metropolitan Life Ins. Co., 

, 462, 463-64 (7th Cir. 1997) (using the stronger “highly
likely” formulation where the record revealed no evidence of illegal drug abuse). I do not condone
the pernicious effects of drunk driving, nor those who perpetrate it. But neither would I permit
moralistic judgments to lull me to acquiesce in Defendant’s purported “interpretation” of the PAI
Policy.
        The majority’s social utility calculus only amplifies and enables the sort of moralistic
judgments we should be loathe to employ, much less to encourage. It directly links recovery under
an “accidental injury” provision to notions of desert. Under this calculus, the plan administrator
dare not deny coverage to either motorist in the above examples if they were en route to donate a
kidney to their dying mother and had only limited time to reach their destination. However, less
beneficial conduct, like delivering a brick of cocaine to a mass drug dealer, would militate in favor
of denial of PAI benefits. Applying the social utility calculus, beneficiaries of the motorist rushing
to his dying mother’s bedside may recover PAI benefits, while the plan administrator may deny the
PAI claim received from beneficiaries of the motorist/drug runner. The problem, of course, is that
the behavior leading to the injury – and ultimately, the loss of life – is identical for both motorists,
yet the coverage decision will vary with the value society ascribes to the purpose of the conduct.
Thus, under the social utility calculus, moral judgments drive the distinction between covered acts
and those excluded from coverage.
        The majority takes pains to avoid discussing the plain meaning of the PAI Policy, or the
inquiry under federal common law. Instead, the majority classifies injury following from “grossly
negligent” or “reckless” behavior as by definition not “accidental.” In doing so, the majority
imports long established concepts of tort law into the enterprise of interpreting ERISA plans. The
federal common law applies basic principles of contract interpretation, often times borrowed from
state contract law, when ambiguous terms in ERISA plans raise questions of coverage. See

. In at least one state case within this circuit, Fryman v. Pilot Life Ins.
Co., 

, 206 (Ky. 1986), the Kentucky Supreme Court declined to apply tort law
No. 06-2234                Lennon v. Metropolitan Life Insurance Co.                              Page 15


principles in interpreting an accidental injury policy. There, the court indicated “reluctan[ce] to
analyze contract terms under principles which have technical meaning in other areas of the law,” and
expressly stated that “principles of tort law . . . have no application to the contract issue in question.”

the well-established canon of contract interpretation that words be afforded their plain
and ordinary meaning requires plan administrators and courts alike to eschew constructs tethered
to technical legal concepts like gross negligence and recklessness.
         Drawing an analogy from tort law, the majority reasons that if tort law can treat grossly
negligent or reckless conduct like intentional conduct, then an ERISA plan administrator can
similarly treat grossly negligent or reckless conduct as not accidental. The force of this analogy, it
seems, is in pointing out that the insured intended to drive drunk. This may be so, but it says nothing
of the insured’s expectations or intentions with respect to the consequence of his voluntary act. The
majority thereby harkens back to the distinction between “accidental means” and “accidental ends”
long abandoned by the common law. Further, the analogy draws its force from equating intentional
with not accidental. If applied, as the terms of the policy require, to the words “bodily injury,” such
that “accidental bodily injury” by definition excludes “intentional bodily injury,” this construct
renders superfluous the PAI Policy’s express exclusion for intentional “self-inflicted injury.” In
effect, the majority joins the plan administrator here in rewriting the PAI Policy.
        Under the pretense of interpreting the term “accidental,” Defendant read a new exclusion into
its PAI Policy. Defendant’s interpretation, and subsequent denial of PAI benefits, is therefore
arbitrary and capricious.
II.     SELF-INFLICTED INJURY EXCEPTION
         Defendant’s alternative rationale – that the insured died from a “self-inflicted injury” – must
also fail as an arbitrary and capricious interpretation of the PAI Policy’s listed exclusion. Expressly,
the PAI Policy excludes coverage “for any loss which is contributed to or caused, wholly or partly,
directly or indirectly, by . . . suicide, attempted suicide or self-inflicted injury, while sane or insane.”
(J.A. at 152) Defendant invoked this exclusion, reasoning that “the mental and physical impairments
caused by the voluntary consumption of excessive amounts of alcohol constitute intentional self-
inflicted injuries under the plan.” (Id. at 202)
        A decision of the Eighth Circuit sitting en banc dealt with this precise issue in a very
persuasive manner. In King v. Hartford Life & Accident Insurance Co., 

(8th Cir.
2005) (en banc), the insured died in a motorcycle accident. At the time, he had a blood alcohol
content (“BAC”) of 0.19. 

His accidental death insurance policy contained an exclusion
for “intentionally self-inflicted injury, suicide, or attempted suicide, whether sane or insane,” much
like the policy exclusion in the instant case. See 

The ERISA plan administrator relied
on the intentionally self-inflicted injury exclusion to deny benefits, claiming the insured’s “alcohol
intoxication was itself an ‘intentionally self-inflicted injury’ that ‘contributed to’ his injuries and
death.” 

the plan administrator’s interpretation, the King court observed
that “[o]ne rarely thinks of a drunk driver who arrives home safely as an ‘injured’ party, and to
define drinking to the point of intoxication as an ‘intentionally self-inflicted injury . . .’ is at least
‘a startling construction.’” 

Additionally, in light of other enumerated
exclusions in the policy, the King court found the ERISA plan administrator’s interpretation would
render meaningless exclusions for losses caused by “taking drugs . . . unless prescribed . . . by a
licensed physician.” 

        On appeal, Defendant contends that the “intentional self-inflicted injury” was the insured’s
voluntary intoxication “to the extent that [his] BAC was 0.321, a BAC evidencing extreme injuries
to mind and body, probably including loss of consciousness.” (Def.’s Br. at 50) That intentional
self-inflicted injury, the argument goes, then partially contributed to the loss, the insured’s death.
No. 06-2234                Lennon v. Metropolitan Life Insurance Co.                            Page 16


However, this argument is not supported by substantial evidence in the administrative record, which
says nothing of “extreme injuries to mind and body” or “loss of consciousness” occurring before the
accident. Additionally, like the policy in King, the PAI Policy enumerated an exclusion for “use of
any drug or medicine unless taken on the advice of and in accordance with the direction of a licensed
physician.” (J.A. at 152) As in King, Defendant’s interpretation would render the “drug” exclusion
meaningless. See 

. Consequently, I agree with the district court’s conclusion
that Defendant arbitrarily and capriciously interpreted the “self-inflicted injury” exclusion in order
to deny PAI benefits to Plaintiff.
III.    LACK OF DELIBERATE REASONING PROCESS
         Finally, nothing on the record indicates that Defendant’s interpretation and ultimate denial
of PAI benefits here followed from a deliberate and principled reasoning process. First, Defendant
denied the PAI benefits by way of a “DWI denial” form letter which, among other things, rattled off
a list of cases in an apparent attempt to insulate the denial from even the most minimally searching
review. (See J.A. at 227) Defendant’s denial is more akin to an automatic rejection triggered by the
fact of the insured’s intoxication than to the result of any truly deliberative interpretive enterprise.
Second, Defendant issued conflicting denial letters. The initial denial letter stated that “[b]ecause
of his voluntary alcohol consumption and attempt to drive while so impaired, [the insured’s] death
was directly the result of accidental injuries, independently of all other causes.” (Id. at 225-26
(emphasis added)) Plaintiff seized upon this statement in appealing the denial. Defendant’s
subsequent letter upholding its initial denial of the PAI claim called it a “typographical error,” noting
the sentence should have read, “[the insured’s] death was not directly the result of accidental
injuries.” (Id. at 201-02) Third, at oral argument before this court, Defendant’s counsel could not
articulate the criteria Defendant applies in resolving claims like Plaintiff’s. Although not
dispositive, the apparent lack of process does little to indicate that Defendant’s denial was not
arbitrary and capricious.
         For all of the foregoing reasons, I believe Defendant acted arbitrarily and capriciously when
it interpreted the PAI Policy – specifically, the term “accidental” and the express exclusion for
“intentional self-inflicted injury.” I would affirm the district court’s well-reasoned opinion.