Tommy Dowdy v. Metropolitan Life Ins. Co. , 890 F.3d 802 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMMY DOWDY and SHARON No. 16-15824
MORRIS-DOWDY,
Plaintiffs-Appellants, D.C. No.
3:15-cv-03764-JST
v.
METROPOLITAN LIFE INSURANCE OPINION
COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted November 15, 2017
San Francisco, California
Filed May 16, 2018
Before: Marsha S. Berzon and Michelle T. Friedland,
Circuit Judges, and William K. Sessions,* District Judge.
Opinion by Judge Sessions
*
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
2 DOWDY V. METROPOLITAN LIFE INS. CO.
SUMMARY**
Employee Retirement Income Security Act
The panel reversed the district court’s judgment in favor
of the defendant in an ERISA action challenging the denial of
accidental dismemberment benefits under an employee
welfare benefit plan.
The plaintiff suffered a serious injury to his left leg as the
result of an automobile accident, and his leg was eventually
amputated below the knee. The defendant denied coverage
because the plaintiff’s injury was complicated by his diabetes.
The panel held that the district court did not abuse its
discretion in excluding evidence outside the administrative
record, and any error on this issue was harmless because the
external evidence did not support the plaintiff’s claim.
Under the ERISA plan, the plaintiff was entitled to
coverage if his car accident was the “direct and sole cause” of
the loss, and if amputation “was a direct result of the
accidental injury, independent of other causes.” The panel
held that, even under the more demanding “substantial
contribution” standard used when the applicable plan
language is conspicuous, the plaintiff was entitled to recovery
because the record did not support a finding that the pre-
existing condition of diabetes substantially contributed to his
loss.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOWDY V. METROPOLITAN LIFE INS. CO. 3
The panel remanded the case to the district court for
further proceedings.
COUNSEL
Mark L. Mosley (argued) and Douglas A. Applegate, Seiler
Epstein Ziegler & Applegate LLP, San Francisco, California;
Glenn R. Kantor, Kantor & Kantor LLP, Northridge,
California; for Plaintiffs-Appellants.
Rebecca Hull (argued) and Denise Trani-Morris, Gordon
Rees Scully MansukhaniLLP, San Francisco, California; Ian
S. Linker, Metropolitan Life Insurance Company, New York,
New York; for Defendant-Appellee.
OPINION
SESSIONS, District Judge:
OVERVIEW
In 2014, Appellant Tommy Dowdy suffered a serious
injury to his left leg as the result of an automobile accident.
His leg was eventually amputated below the knee. Mr.
Dowdy and his wife, Sharon Morris-Dowdy, sought
accidental dismemberment benefits under an employee
welfare benefit plan governed by the Employee Retirement
Income Security Act of 1974 (“ERISA”). Appellee
Metropolitan Life Insurance Company (“MetLife”) denied
coverage because Mr. Dowdy’s injury was complicated by
his diabetes, and the district court affirmed the denial. For
the reasons set forth below, we hold that the Dowdys are
4 DOWDY V. METROPOLITAN LIFE INS. CO.
entitled to coverage because Mr. Dowdy’s diabetes did not
substantially cause or contribute to his injury. The judgment
of the district court is therefore reversed and this case is
remanded for further proceedings.
FACTUAL BACKGROUND
On the morning of September 13, 2014, Mr. Dowdy, age
60, was driving eastbound on California State Route 4 when
he lost control of his car. The vehicle struck a metal sign
post, rolled onto its right side, traveled down a dirt
embankment and spun clockwise before coming to rest. The
California Highway Patrol (“CHP”) officer who arrived at the
scene noted that Mr. Dowdy had suffered serious injuries,
including a “semi-amputated left ankle” and chest abrasions.
After a “prolonged” extraction from his vehicle, Mr. Dowdy
was transported by helicopter to the John Muir Medical
Center and treated in the Intensive Care Unit.
Mr. Dowdy remained in the hospital until October 11,
2014, at which time he was discharged to a skilled nursing
facility. When discharged, he was “nonweightbearing” due
to his leg injury. The injury failed to improve, and
approximately three months later Mr. Dowdy was transferred
back to the hospital for treatment of persistent infection
issues. On February 13, 2015, Dr. Christopher Coufal
amputated Mr. Dowdy’s left leg below the knee.
Through Mr. Dowdy’s wife’s employment at Bank of the
West, the Dowdys had purchased accidental death and
dismemberment insurance from MetLife (“the AD&D Plan”
or “Plan”). The Plan is governed by ERISA. The relevant
coverage language states:
DOWDY V. METROPOLITAN LIFE INS. CO. 5
If You or a Dependent sustain an accidental
injury that is the Direct and Sole Cause of a
Covered Loss described in the SCHEDULE
OF BENEFITS, Proof of the accidental injury
and Covered Loss must be sent to Us. When
We receive such Proof We will review the
claim and, if We approve it, will pay the
insurance in effect on the date of the injury.
Direct and Sole Cause means that the Covered
Loss occurs within 12 months of the date of
the accidental injury and was a direct result of
the accidental injury, independent of other
causes
(the “Coverage Provision”).
The Plan has several exclusions, one of which provides
that MetLife will not issue benefits “for any loss caused or
contributed to by . . . physical . . . illness or infirmity, or the
diagnosis or treatment of such illness or infirmity” (the
“Illness or Infirmity Exclusion”). The Plan also excludes
coverage for infections (the “Infection Exclusion”), but
carves out of the exclusion any “infection occurring in an
external accidental wound.” The Plan requires claimants to
submit written evidence in support of their claim.
The Dowdys filed a request for benefits under the AD&D
Plan for Mr. Dowdy’s leg amputation, submitting information
both in writing and through several telephone calls. Prior to
the amputation, however, MetLife informed Ms. Morris-
Dowdy that it intended to deny the dismemberment claim
because an ankle fracture was not a severance. Ms. Morris-
6 DOWDY V. METROPOLITAN LIFE INS. CO.
Dowdy informed MetLife that amputation was possible
within the next week.
One week later, on February 16, 2015, MetLife mailed a
letter denying coverage. The letter stated that “[i]n general,
dismemberment benefits are paid for severing injuries, which
did not happen here.” On March 5, 2015, Dr. Coufal wrote
in a letter that Mr. Dowdy had
sustained significant injuries to his left lower
extremity with an open grade III B pilon
fracture. He had significant multiple other
comorbidities and traumatic injuries. . . . He
had wound issues, which were complicated by
his diabetes. The wound healing as well as
his fracture itself was slow to heal and never
had any significant healing in spite of being
stabilized with the external fixator. He ended
up developing deep infection . . . consistent
with osteomyelitis and sequestrum, which was
related to original injury. Eventually, due to
his comorbidities as well as type of injury he
ended up proceeding to an amputation. On
2/13/15, he underwent elective left below-the-
knee amputation for treatment of this infected
nonunion of the left pilon fracture.
Dr. Coufal’s surgical report similarly stated that “[o]ver the
past several months, [Mr. Dowdy] has had very poor signs of
healing . . . . Attempts at soft tissue coverage have been
unsuccessful. Due to his multiple comorbidities as well as
nonhealing wounds to his left leg and osteomyelitis, it was
elected to undergo a left below-the-knee amputation.”
DOWDY V. METROPOLITAN LIFE INS. CO. 7
On March 24, 2015, a senior claims examiner at MetLife
called for a “new initial denial as now there is now an
amputation, however the loss was contributed to by the
diabetes.” Correspondingly, MetLife sent a second denial
letter dated April 2, 2015. The letter cited the Illness or
Infirmity Exclusion, quoted above, which pertained to “any
loss caused or contributed to by . . . physical or mental illness
or infirmity, or the diagnosis or treatment of such illness or
infirmity.” The letter stated that Mr. Dowdy’s “amputation
was contributed [to] and complicated by diabetes per Dr.
Coufal,” and that “[u]nder the terms of the Plan a loss caused
or contributed [to] by an illness or treatment for that illness is
excluded by the Plan from payment.”
The Dowdys filed an administrative appeal of MetLife’s
initial determination. After a further review, MetLife upheld
its initial determination, concluding that the accident was not
the “direct and sole cause” of the amputation “independent of
other causes” as set forth in the Coverage Provision, and that
the Plan’s Illness or Infirmity Exclusion applied because Mr.
Dowdy’s diabetes contributed to the loss. As authorized by
ERISA, the Dowdys then sought judicial review in federal
court. See 29 U.S.C. § 1132(a)(1)(B).
In the proceedings before the district court, the parties
filed cross-motions for judgment under Federal Rule of Civil
Procedure 52. The district court declined to consider
extrinsic evidence, citing the principle that review of an
ERISA claim is generally limited to the administrative record.
The court also found that a review of extrinsic materials was
not warranted because the burden was on the Dowdys to
provide evidence supporting their claim, and MetLife had not
acted in bad faith in its communications with Ms. Morris-
Dowdy. With respect to the merits of Mr. Dowdy’s claim,
8 DOWDY V. METROPOLITAN LIFE INS. CO.
the district court found that diabetes caused or contributed to
the need for amputation, and affirmed the denial of benefits.
This appeal followed.
STANDARDS OF REVIEW
We review findings of fact by the district court for clear
error. Silver v. Exec. Car Leasing Long-Term Disability
Plan, 466 F.3d 727, 733 (9th Cir. 2006). When reviewing a
mixed question of law and fact, we review for clear error “[i]f
application of the rule of law to the facts requires an inquiry
that is ‘essentially factual.’” United States v. McConney,
728 F.2d 1195, 1202 (9th Cir. 1984) (en banc) (quoting
Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982)). The
district court’s decision to exclude evidence outside the
administrative record is reviewed for an abuse of discretion.
Opeta v. Nw. Airlines Pension Plan for Contract Emps.,
484 F.3d 1211, 1216 (9th Cir. 2007).
DISCUSSION
I. Extrinsic Evidence
The Court must first consider whether it is limited to
reviewing the administrative record. Review of a benefits
denial is generally limited to the factual record presented to
the plan administrator. Id. at 1217. This Circuit has held that
a court may consider evidence beyond the administrative
record “only when circumstances clearly establish that
additional evidence is necessary to conduct an adequate de
novo review of the benefit decision.” Mongeluzo v. Baxter
Travenol Long Term Disability Benefits Plan, 46 F.3d 938,
944 (9th Cir. 1995) (quoting Quesinberry v. Life. Ins. Co. of
N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993)) (describing
DOWDY V. METROPOLITAN LIFE INS. CO. 9
circumstances that support considering evidence outside of
the administrative record).
Of the four pieces of evidence excluded by the district
court, only one—Mr. Dowdy’s medical chart—is relevant.
The remaining evidence, which includes MetLife marketing
materials, a declaration from Ms. Morris-Dowdy stating when
Mr. Dowdy returned home, and evidence showing that Ms.
Morris-Dowdy was forced to leave her job to manage Mr.
Dowdy’s medical care, is irrelevant to the issues on appeal.
And with respect to the medical chart, the district court
correctly concluded that it did not in fact support the
Dowdys’ claim. Accordingly, even assuming the district
court erred in refusing to look beyond the administrative
record, any such error was harmless. See Burgess v. Premier
Corp., 727 F.2d 826, 833 (9th Cir. 1984) (“On appeal, a
ruling which admits or excludes evidence, even if an abuse of
discretion, will not be overturned if the error is harmless.”).
II. Entitlement to Coverage
We next turn to the question whether the Dowdys are
entitled to coverage. When making such a determination
under ERISA, the Court has generally applied federal
common law to questions of insurance policy interpretation.
Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir.
2002); see also Evans v. Safeco Life Ins. Co., 916 F.2d 1437,
1439 (9th Cir. 1990). Courts may “borrow ‘from state law
where appropriate, and be guided by the policies expressed in
ERISA and other federal labor laws.’” Babikian v. Paul
Revere Life Ins. Co., 63 F.3d 837, 840 (9th Cir. 1995)
(alteration omitted) (quoting Scott v. Gulf Oil Corp., 754 F.2d
1499, 1502 (9th Cir. 1985)). However, the general rule is that
state common-law rules related to employee benefit plans are
10 DOWDY V. METROPOLITAN LIFE INS. CO.
preempted. 29 U.S.C. § 1144(a); Evans, 916 F.2d at 1439;
see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98 (1983)
(holding that federal common law of ERISA preempts state
law in the interpretation of ERISA benefit plans).1
In developing federal common law, courts must adopt a
rule that “best comports with the interests served by ERISA’s
regulatory scheme.” PM Grp. Life Ins. Co. v. W. Growers
Assurance Tr., 953 F.2d 543, 546 (9th Cir. 1992). Congress
specifically stated that it is “the policy of [ERISA] to protect
. . . the interests of participants in employee benefit plans and
their beneficiaries” and to “increase the likelihood that
participants and beneficiaries . . . receive their full benefits.”
29 U.S.C. §§ 1001(b), 1001b(c)(3).
1
ERISA contains a savings clause that exempts from preemption “any
law of any State which regulates insurance.” 29 U.S.C. § 1144(b)(2)(A).
We have previously held that “state laws of insurance policy interpretation
do not qualify for the savings clause exception and are preempted.”
McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129, 1133 (9th Cir. 1996)
(quoting Evans, 916 F.2d at 1440 (1990)); see also Williams v. Nat’l
Union Fire Ins. Co., 792 F.3d 1136, 1140 (9th Cir. 2015). Whether, in
light of Kentucky Association of Health Plans, Inc. v. Miller, 538 U.S. 329
(2003), the McClure rule still applies to the state insurance law here at
issue, see Cal. Ins. Code §§ 530, 532; Garvey v. State Farm Fire & Cas.
Co., 770 P.2d 704, 706–07 (Cal. 1989), is a question we need not address.
Cf. Anderson v. Continental Cas. Co., 258 F. Supp. 2d 1127, 1130–32
(E.D. Cal. 2003) (concluding that, following Miller, California’s process-
of-nature rule is saved from preemption even though it can be described
as a rule of policy interpretation). No savings clause argument was raised
in the district court, and, in any event, the result in this case would be the
same under California’s less restrictive approach to causation. See Cal.
Ins. Code. §§ 530, 532; Garvey, 770 P.2d at 706–07.
DOWDY V. METROPOLITAN LIFE INS. CO. 11
A. The “Direct and Sole Cause” of the Injury
In this case, the Dowdys are entitled to coverage if Mr.
Dowdy’s car accident was the “direct and sole cause” of the
loss, and if amputation “was a direct result of the accidental
injury, independent of other causes.” These are common
terms in ERISA policies. We have previously addressed
similar language in the context of pre-existing conditions in
disability insurance.
In McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129 (9th
Cir. 1996), we determined that where the applicable plan
language is less than obvious (“inconspicuous”), the “policy
holder reasonably would expect coverage if the accident were
the predominant or proximate cause of the disability.” Id. at
1135–36. If, however, the applicable language is
conspicuous, recovery could be barred if a preexisting
condition substantially contributed to the loss, “even though
the claimed injury was the predominant or proximate cause
of the disability.” Id. at 1136.
Here, we need not determine whether the applicable
policy language is conspicuous or inconspicuous, because
even under the more demanding substantial contribution
standard, the Dowdys are entitled to recovery. In affirming
the plan administrator’s denial of coverage, the district court
concluded that diabetes “caused or contributed to the need for
amputation.” We agree that the record establishes that
diabetes was a factor in the injury. Nonetheless, the factual
record does not support a finding that diabetes substantially
contributed to Mr. Dowdy’s loss.
In order to be considered a substantial contributing factor
for the purpose of a provision restricting coverage to “direct
12 DOWDY V. METROPOLITAN LIFE INS. CO.
and sole causes” of injury, a pre-existing condition must be
more than merely a contributing factor. For example, in
Adkins v. Reliance Standard Life Ins. Co., 917 F.2d 794 (4th
Cir. 1990), the Fourth Circuit cited with approval the
reasoning that “a ‘pre-disposition’ or ‘susceptibility’ to
injury, whether it results from congenital weakness or from
previous illness or injury, does not necessarily amount to a
substantial contributing cause. A mere ‘relationship’ of
undetermined degree is not enough.” 917 F.2d at 797
(quoting Colonial Life & Accident Ins. Co. v. Weartz,
636 S.W.2d 891, 894 (Ky. Ct. App. 1982), overruled on other
grounds by Mifflin v. Mifflin, 170 S.W.3d 387 (Ky. 2005));
see also Quesinberry, 987 F.2d at 1028 (holding that “a mere
relationship of undetermined degree” was not sufficient to
defeat coverage).
This conclusion is echoed in the Restatement, to which
this Court has previously turned for assistance in formulating
federal common law in the ERISA context. See, e.g., Salyers
v. Metro. Life Ins. Co., 871 F.3d 934, 939–40 (9th Cir. 2017)
(adopting a definition from the Restatement of Agency as
federal common law in an ERISA action); Native Vill. of
Kivalina v. ExxonMobil Corp., 696 F.3d 849, 855 (9th Cir.
2012) (defining a public nuisance under federal common law
in accordance with the Restatement (Second) of Torts). In
defining “substantial” in the context of “substantial cause,”
the Restatement (Second) of Torts notes:
The word “substantial” is used to denote the
fact that the defendant’s conduct has such an
effect in producing the harm as to lead
reasonable men to regard it as a cause, using
that word in the popular sense, in which there
always lurks the idea of responsibility, rather
DOWDY V. METROPOLITAN LIFE INS. CO. 13
than in the so-called “philosophic sense,”
which includes every one of the great number
of events without which any happening would
not have occurred. Each of these events is a
cause in the so-called “philosophic sense,” yet
the effect of many of them is so insignificant
that no ordinary mind would think of them as
causes.
Restatement (Second) of Torts § 431 cmt. a (Am. Law Inst.
1965).
For a court to distinguish between a responsible cause and
a “philosophic,” insignificant cause, there must be some
evidence of a significant magnitude of causation. Such
evidence need not be presented with mathematical precision,
but must nonetheless demonstrate that a causal or
contributing factor was more than merely related to the
injury, and was instead a substantial catalyst. See, e.g.,
Coleman v. Metro. Life Ins. Co., 262 F. Supp. 3d 295, 312
(E.D.N.C. 2017) (finding against a defendant in an ERISA
case where “the record contains no indication that [the
plaintiff’s] cancer contributed to his death in any quantifiable
or substantial way”); Towers ex rel. Verderosa v. Life Ins. Co.
of N. Am., No. 6:09-CV-1318-ORL-28, 2011 WL 3752734,
at *6 (M.D. Fla. Aug. 25, 2011) (ruling against defendant
under ERISA plan where “the level of contribution of
[plaintiff’s] preexisting conditions to his death has not been
quantified . . . [Thus,] the Court cannot discern from the
record evidence any means of determining the degree of the
causal relationship.”).
The record here falls short of showing that diabetes was
a substantial contributing factor. Dr. Coufal opined that Mr.
14 DOWDY V. METROPOLITAN LIFE INS. CO.
Dowdy’s “wound issues” post-surgery were “complicated by
his diabetes.” He did not elaborate, even generally, on how
much of a role that complicating factor played in Mr.
Dowdy’s failure to recover. Dr. Coufal identified a host of
contributors, including the original, “significant . . . pilon
facture,” “potential bony sequestrum indicating
osteomyelitis” related to the initial injury, and a resulting
“deep infection.” In summarizing the grounds for surgery,
Dr. Coufal faulted both “comorbidities” and the “type of
injury.”
The district court concluded that coverage is barred
because, as the Plan “dictates,” no physical or mental illness
can “‘cause or contribute’” to the loss, and “Mr. Dowdy’s
diabetes clearly contributed to his loss.” The court also found
“that the complications of Mr. Dowdy’s diabetes substantially
contributed to the need for amputation.” Although the district
court cited the substantial contribution standard, its
application of that standard was clear error, as it was overly
strict and not consistent with the requirement that the
contributing factor be, in fact, substantial.
In sum, Congress intended for ERISA to protect the
interests of plan participants and their beneficiaries. See
29 U.S.C. §§ 1001(b), 1001b(c)(3). Consistent with that
policy choice, federal courts have developed a body of
common law that construes coverage provisions in a manner
that does not “unreasonably limit[] coverage.” Dixon, 389
F.3d at 1184. Here, even assuming the policy language was
conspicuous, we construe the Plan as providing coverage
unless Mr. Dowdy’s pre-existing disease “substantially
contributed” to his injury. McClure, 84 F.3d at 1136. Based
upon the evidence presented in the administrative record, Mr.
Dowdy’s diabetes was a complicating factor, but it was not
DOWDY V. METROPOLITAN LIFE INS. CO. 15
identified as a substantial contributor to the ultimate loss. We
therefore hold that coverage should not have been denied on
the basis of the Coverage Provision.
B. The Illness or Infirmity Exclusion
Because Mr. Dowdy’s injury is a covered loss, we must
go on to determine whether the Illness or Infirmity Exclusion
bars coverage. That Exclusion states that MetLife will not
pay benefits for “any loss caused or contributed to by . . .
illness or infirmity.” The plan administrator and the district
court both found that this Exclusion applies because Mr.
Dowdy’s diabetes “caused or contributed to” the loss. We
disagree.
Under general principles of insurance law, exclusions are
construed narrowly. See Critchlow v. First Unum Life Ins.
Co. of Am., 378 F.3d 246, 256 (2d Cir. 2004) (explaining that,
under ERISA, exclusionary clauses “are given strict
construction” and “should be read narrowly rather than
expansively”). And MetLife has conceded, as it must, that it
has the burden of showing an exclusion applies. See Mario
v. P & C Food Mkts., Inc., 313 F.3d 758, 765 (2d Cir. 2002)
(“[A]s a matter of general insurance law, the insured has the
burden of proving that a benefit is covered, while the insurer
has the burden of proving that an exclusion applies.”).
We hold, for the same reasons discussed above, that the
substantial contribution standard applies in interpreting the
concepts of cause and contribution in this exclusion. The
Illness or Infirmity Exclusion serves the same purpose as the
threshold limitation on coverage to accidental injury that is
16 DOWDY V. METROPOLITAN LIFE INS. CO.
the “direct and sole cause” of a covered loss.2 Accordingly,
to satisfy the Exclusion, any cause or contribution by an
illness or infirmity must be substantial. See, e.g., Coleman,
262 F. Supp. 3d at 308 (“The Adkins standard governs even
where, as here, the causation-based exclusion simply says
‘caused or contributed to,’ and it requires that any
contribution be substantial.”).
Again, the record with respect to the role of diabetes in
Mr. Dowdy’s recovery is notably thin. The car accident
resulted in a severe injury that came close to amputating his
lower leg. Dr. Coufal opined that when attempts were made
properly to correct the lower leg, subsequent wound issues
were complicated by diabetes, and the fracture itself was slow
to heal. Ultimately, however, Mr. Dowdy suffered a deep
infection that Dr. Coufal considered “related to the original
injury.” In light of this evidence, and giving the Exclusion
the required strict reading, MetLife cannot meet its burden of
showing that diabetes substantially caused or contributed to
the loss.
As the evidence is insufficient for MetLife to show that
the Illness or Infirmity Exclusion applies, the Dowdys are
entitled to benefits. This case is hereby remanded to the
district court for further proceedings consistent with this
2
See J.A. Bock, Pre-existing physical condition as affecting liability
under accident policy or accident feature of life policy, 84 A.L.R. 2d 176,
§ 4(a) (“[M]ost accident policies contain clauses which may be classified
as being either ‘sole cause’ or ‘exclusionary’ clauses. By way of general
observation, it may be stated that most cases have not recognized any
distinction between these two main types of provisions, but rather,
depending upon the facts of the particular case, have given the same
construction and effect to each type of clause.”).
DOWDY V. METROPOLITAN LIFE INS. CO. 17
decision, which will include determining the amount of
benefits owed.
REVERSED and REMANDED.