Scott Wolf v. Ins. Co. of N. America ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT C. WOLF, No. 21-35485
Plaintiff-Appellee,
D.C. No.
v. 3:20-cv-05684-
BHS
LIFE INSURANCE COMPANY OF
NORTH AMERICA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted June 8, 2022
Seattle, Washington
Filed August 25, 2022
Before: Ronald Lee Gilman, * Sandra S. Ikuta, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Gilman;
Concurrence by Judge Ikuta
*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 WOLF V. LIFE INS. CO. OF NORTH AMERICA
SUMMARY **
ERISA
The panel affirmed the district court’s summary
judgment in favor of the plaintiff in an action under the
Employee Retirement Income Security Act concerning the
denial of an insurance claim based on the plaintiff’s son’s
accidental death.
The son died in a one-car collision. He was intoxicated
and had been driving at a high speed in the wrong direction
down a one-way road when he hit a speed bump and lost
control of the car, which ultimately flipped over and landed
upside down in a body of water adjoining the road. The
accidental death and dismemberment insurance policy
obtained from defendant Life Insurance Company of North
America (LINA) by the plaintiff via his employer paid
benefits for a “Covered Accident,” defined as “[a] sudden,
unforeseeable, external event that results, directly and
independently of all other causes.”
Reviewing de novo, the panel held that to determine
whether the son’s death was the result of an “accident” under
the policy, it must apply the Padfield test, an “overlapping
subjective and objective inquiry.” The panel concluded that,
under this test, there was insufficient evidence in the
administrative record to determine the son’s subjective
expectation at the time he died. Proceeding to the objective
inquiry, the panel declined to consider for the first time on
appeal LINA’s argument that because the policy defined the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
WOLF V. LIFE INS. CO. OF NORTH AMERICA 3
term “accident” as “a sudden, unforeseeable, external
event,” the district court should have asked whether the son’s
death was “reasonably foreseeable” rather than applying the
Padfield test by asking whether his death was “substantially
certain.” Declining to apply an exception for purely legal
issues, the panel concluded that the plaintiff would be unduly
prejudiced by the belated application of a “reasonably
foreseeable” test because not only did LINA fail to raise the
argument below, but it also did not use that test when
initially denying the plaintiff’s insurance claim. The panel
held that, under the Padfield test, the son’s death was an
“accident” because, while the facts demonstrated that the son
engaged in reckless conduct, the record did not show that his
death was “substantially certain” to result from that conduct.
Accordingly, the district court correctly determined that the
son’s death was covered under the insurance policy.
Concurring, Judge Ikuta stated that she wrote separately
to emphasize that the panel’s opinion applied the definition
of an “accident” set forth in Padfield v. AIG Life Ins. Co.,
290 F.3d 1121 (9th Cir. 2002), only because LINA relied on
Padfield and forfeited its argument the insurance policy’s
own definition of “accident” applied.
COUNSEL
Charles C. Huber (argued), D. Michael Reilly, and Ryan P.
McBride, Lane Powell PC, Seattle, Washington, for
Defendant-Appellant.
Glenn R. Kantor (argued), Sally Mermelstein, Sarah J.
Demers, and Stacy Monahan Tucker, Kantor & Kantor LLP,
Northridge, California, for Plaintiff-Appellee.
4 WOLF V. LIFE INS. CO. OF NORTH AMERICA
OPINION
GILMAN, Circuit Judge:
Scott Wolf, Jr. (Scott) died in a one-car collision. He
was intoxicated and had been driving at a high speed in the
wrong direction down a one-way road when he hit a speed
bump and lost control of the car, which ultimately flipped
over and landed upside down in a body of water adjoining
the road. Scott Wolf, Sr. (Wolf), Scott’s father, brought suit
against Life Insurance Company of North America (LINA),
alleging that LINA wrongfully denied his insurance claim
based on Scott’s accidental death. The district court granted
Wolf’s motion for summary judgment.
On appeal, LINA argues that, under the language of the
insurance policy, an event is not an “accident” if it is
“reasonably foreseeable.” But LINA did not present that
argument to the district court, nor to Wolf when it denied his
claim, so it has forfeited that argument here. The appropriate
test for whether the death in this case was an “accident” is
therefore the one that the district court applied, which asks
whether the resulting death was “substantially certain” to
occur from the insured’s conduct. Although the insured’s
conduct here was extremely reckless, the district court
correctly concluded that his death was not “substantially
certain” to occur. Accordingly, we AFFIRM the judgment
of the district court.
I. BACKGROUND
A. The AD&D policy
Wolf maintains an accidental death and dismemberment
(AD&D) insurance policy from LINA through his employer.
The policy pays benefits for, among other things, a “Covered
WOLF V. LIFE INS. CO. OF NORTH AMERICA 5
Accident,” which is defined as “[a] sudden, unforeseeable,
external event that results, directly and independently of all
other causes.” Scott, Wolf’s 26-year-old son, was insured
under this policy for $50,000 as his parents’ dependent.
The policy includes a list of exclusions to coverage, such
as for injuries resulting from skydiving, hang-gliding,
parachuting, or acrobatic flying. Notably, however, the
policy does not have any exclusion for incidents occurring
while the insured was under the influence of alcohol,
speeding, or engaged in reckless conduct.
B. Scott’s fatal drive
The incident in question occurred around 4:00 a.m. on
August 19, 2018 in Clearwater, Florida. Witnesses reported
that Scott was driving in the wrong direction on a one-way
service road next to the Courtney Campbell Causeway,
which is surrounded on both sides by water. The police later
determined that Scott was traveling at approximately
65 miles per hour, despite the service road having a speed
limit of 10 miles per hour. He hit a speed bump, which
caused him to lose control of the car, overcorrect, and veer
off the road. His car then struck several tree stumps, went
airborne over the rocky coastline, and landed upside-down
in the adjacent bay.
A deputy from the Clearwater Police Department
quickly arrived on scene and pulled Scott from the
submerged, overturned car with the assistance of a nearby
onlooker. Scott was transported to a local hospital, where he
was pronounced dead. After performing an autopsy, the
county medical examiner determined that Scott had suffered
blunt-impact injures to the head and neck and had died as a
result of drowning. The examiner listed the “manner of
death” as “Accident (Drove automobile off roadway into bay
6 WOLF V. LIFE INS. CO. OF NORTH AMERICA
while intoxicated).” In addition, the medical examiner’s
toxicology report revealed that Scott had a blood alcohol
content (BAC) of .20 grams per deciliter (0.20%).
C. LINA’s denial of coverage
Wolf filed a timely claim for accidental-death benefits
with LINA in June 2019. Roughly one month later, LINA
issued a denial letter, concluding “that Scott’s death was a
foreseeable outcome of his voluntary actions, and thus, the
loss was not a result of a Covered Accident as the term is
defined” under the policy (emphases in original). In
explaining its decision, LINA wrote:
Foreseeability can be analyzed by examining
whether the Insured’s intentional conduct
was objectively reasonable, or reasonable
based on the judgment of a similar individual.
Because we cannot determine Scott’s
subjective expectation prior to the incident,
we must consider whether a reasonable
person with a similar background would have
viewed serious injury or death as highly
likely to occur. He was a 26 year old with a
valid Driver’s License and a Bachelor’s
Degree, employed as a Technical Manager
for a company contracted by the U.S.
Department of Energy. The impairments
associated with a BAC of 0.20% also support
that he was operating his vehicle under highly
unsafe conditions. For these reasons, it is
reasonable to assume that a person of similar
education and age-based experience would
have understood that serious injury or even
death would be highly likely to occur while
operating a vehicle . . . with a BAC of 0.20%
WOLF V. LIFE INS. CO. OF NORTH AMERICA 7
and speeding at 6.5 times over the legal speed
limit, the wrong way down a road.
(emphasis in original).
Wolf appealed, contending that if LINA “wanted to
exclude coverage for accidental deaths arising from
negligent or even reckless conduct on behalf of the deceased,
they should have stated so in plain English.” He further
pointed out that the death certificate stated that Scott’s death
was both an accident and was due to drowning.
In reviewing Wolf’s internal appeal, LINA engaged a
toxicologist, Dr. Theodore Siek, to opine on what impact
Scott’s intoxication level might have had on his driving.
Dr. Siek observed that the “physical and mental
impairments” of someone with a BAC above 0.18%
“include: 1) loss of the sense of care and caution, 2) a slower
perception and reaction time, 3) loss of coordination, and
4) less ability to multi-task.” He further opined that Scott’s
“immunity to pain, loss of coordination, and inability to
perceive his dangerous situation were all impacted by
[Scott’s] gross ethanol intoxication. Both his driving ability,
his attitude about safety, and ability to rescue himself from
drowning were all significant factors in his accident and
drowning death.”
Citing Dr. Siek’s statements, LINA upheld its denial of
benefits following Wolf’s internal appeal. LINA again
explained its analytical framework for assessing whether an
event was an “accident” under the policy:
The analytical framework to determine if the
event was unforeseeable is for [LINA] to
determine if the insured subjectively lacked
an expectation of death or injury. If so, LINA
8 WOLF V. LIFE INS. CO. OF NORTH AMERICA
asks whether the suppositions that underlay
the insured’s expectation were reasonable,
from the perspective of the insured, allowing
the insured a great deal of latitude and taking
into account the insured’s personal
characteristics and experiences. If the
subjective expectation of the insured cannot
be ascertained, LINA asks whether a
reasonable person, with background and
characteristics similar to the insured, would
have viewed the resulting injury or death as a
probable consequence highly likely to occur
as a result from the insured’s conduct. Given
the common meanings of the words, we
interpret highly likely to occur to entail a
level of inevitability that is of a significant or
large degree.
(emphasis added.) LINA concluded that a reasonable person
with a background and characteristics similar to Scott’s
“would have viewed the resulting death as a probable
consequence substantially likely to occur.”
D. The instant lawsuit
Wolf sued LINA for benefits under the Employee
Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. §§ 1132(a), (e), (f) and (g). The parties informed
the district court that they would file simultaneous cross-
motions and responsive briefs. They proposed that the
court’s judgment be based entirely on the briefs and the
administrative record.
LINA moved for judgment under Rule 52 of the Federal
Rules of Civil Procedure, and Wolf filed a motion for
summary judgment under Rule 56 of the Federal R ules of
WOLF V. LIFE INS. CO. OF NORTH AMERICA 9
Civil Procedure. In his motion, Wolf cited statistical
information on drunk driving that was not part of the
administrative record. After concluding that it would not
consider Wolf’s statistical information, the district court
analyzed the case under the framework adopted by this court
in Padfield v. AIG Life Insurance Co., 290 F.3d 1121 (9th
Cir. 2002).
The district court acknowledged that “Scott was
engaging in extremely reckless behavior,” but concluded
that “a reasonable person would not have viewed [Scott’s
fatal] injury as substantially certain to occur as a result of his
actions, rendering his death accidental under the policy.”
LINA has timely appealed that ruling.
II. ANALYSIS
A. Standard of review
In an appeal under ERISA, we review de novo a district
court’s grant of summary judgment, employing the same
standard that governed the district court’s review of the plan
administrator’s decision. Williams v. Nat’l Union Fire Ins.
Co. of Pittsburgh, Pa., 792 F.3d 1136, 1139 (9th Cir. 2015).
De novo review applies to the denial of benefits under an
ERISA-governed insurance policy where, as is undisputed
here, the policy does not assign the administrator
discretionary authority to determine eligibility of benefits or
to construe the plan’s terms. Padfield, 290 F.3d at 1124–25.
In such cases, we “simply proceed[] to evaluate whether the
plan administrator correctly or incorrectly denied benefits.”
Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th
Cir. 2006) (en banc).
10 WOLF V. LIFE INS. CO. OF NORTH AMERICA
B. The Padfield test controls
The key question before us is a narrow one: was Scott’s
death the result of an “accident” under his father’s insurance
policy? But in order to answer that question, we must first
decide how to define the word “accident.”
To determine whether an event is an “accident” under an
ERISA-governed AD&D policy, this court has endorsed the
widely accepted framework announced in the seminal case
of Wickman v. Northwestern National Insurance Co.,
908 F.2d 1077 (1st Cir. 1990). Padfield, 290 F.3d at 1126.
That analysis involves an “overlapping subjective and
objective inquiry” under which
[t]he court first asks whether the insured
subjectively lacked an expectation of death or
injury. If so, the court asks whether the
suppositions that underlay the insured’s
expectation were reasonable, from the
perspective of the insured, allowing the
insured a great deal of latitude and taking into
account the insured’s personal characteristics
and experiences. If the subjective
expectation of the insured cannot be
ascertained, the court asks whether a
reasonable person, with background and
characteristics similar to the insured, would
have viewed the resulting injury or death as
substantially certain to result from the
insured’s conduct.
Id. (citations omitted).
Padfield recognized that courts applying the Wickman
framework “have used a number of slightly different verbal
WOLF V. LIFE INS. CO. OF NORTH AMERICA 11
formulations to describe the objective portion of the
inquiry.” Id. Some courts ask whether a reasonable person
similarly situated to the insured would view the resulting
injury as “highly likely,” whereas others use “substantially
certain” or “substantially likely.” Id. at 1127 (citations
omitted). But this court held “that the ‘substantially certain’
test is the most appropriate one, for it best allows the
objective inquiry to ‘serve as a good proxy for actual
expectation.’” Id. (alterations omitted) (quoting Wickman,
908 F.2d at 1088).
We begin by looking to the subjective portion of the
Padfield test. The district court correctly concluded that
there is insufficient evidence in the administrative record to
determine Scott’s subjective expectation at the time he died.
In Wolf’s view, two facts reveal Scott’s subjective
expectations: (1) Scott was wearing his seatbelt when he
crashed, and (2) he had turned on his hazard lights.
According to Wolf, these facts suggest that Scott had no
expectation of impending death. But these two facts do not
shed sufficient light on Scott’s actual state of mind, nor does
anything else in the administrative record.
We thus proceed to the objective inquiry, which is where
the crux of the parties’ disagreement lies. LINA argues that
because the policy defines the term “accident” as “a sudden,
unforeseeable, external event,” the district court should have
asked whether Scott’s death was “reasonably foreseeable”
rather than applying the Padfield test by asking whether his
death was “substantially certain.”
But LINA never made this argument to the district court.
LINA averred generally that Scott’s death should not be
deemed an “accident” under the terms of the policy, but as
its counsel acknowledged at oral argument on appeal, it
never specifically argued that the district court should apply
12 WOLF V. LIFE INS. CO. OF NORTH AMERICA
a “reasonably foreseeable” test instead of Padfield’s
“substantially certain” test. To the contrary, LINA
represented to the district court that the Padfield test
governed, and it argued that under that test, Scott’s death was
not an accident.
We generally do not consider arguments raised for the
first time on appeal. Momox-Caselis v. Donohue, 987 F.3d
835, 841 (9th Cir. 2021). This rule, however, is subject to
several exceptions, one of which is where “the issue
presented is purely one of law and the opposing party will
suffer no prejudice as a result of the failure to raise the issue
in the trial court.” Kaass Law v. Wells Fargo Bank, N.A.,
799 F.3d 1290, 1293 (9th Cir. 2015) (citation omitted).
LINA asks us to invoke that exception here, insisting that
we may consider the argument, despite any failure to raise it
below, because it is a purely legal issue and we are
conducting a de novo review. But Wolf would be unduly
prejudiced by the belated application of a “reasonably
foreseeable” test because not only did LINA fail to raise the
argument below, it also did not use that test when initially
denying Wolf’s claim.
LINA relied on Padfield’s “substantially certain” test, or
something very close to it, to define “unforeseeable” in its
initial denial of Wolf’s claim and on his internal appeal.
“When making a claim determination under ERISA, an
administrator may not hold in reserve a known or reasonably
knowable reason for denying a claim, and give that reason
for the first time when the claimant challenges a benefits
denial in court.” Beverly Oaks Physicians Surgical Ctr.,
LLC v. Blue Cross & Blue Shield of Ill., 983 F.3d 435, 440
(9th Cir. 2020) (citations and internal quotation marks
omitted). This rule prevents a claimant from being
“‘sandbagged’ by a rationale the plan administrator adduces
WOLF V. LIFE INS. CO. OF NORTH AMERICA 13
only after the suit has commenced.” Harlick v. Blue Shield
of Cal., 686 F.3d 699, 720 (9th Cir. 2012) (citation omitted).
In its initial denial, LINA phrased the objective portion
of the two-part test as whether a reasonable person similarly
situated to the insured “would have viewed serious injury or
death as highly likely to occur.” Elaborating on this
definition in its denial of Wolf’s internal appeal, LINA stated
that it “interpret[ed] highly likely to occur to entail a level of
inevitability that is of a significant or large degree.”
We believe that the difference between “significantly or
largely inevitable” and “substantially certain” is purely
semantic. In any event, LINA did not rely on a “reasonable
foreseeability” test in denying coverage. It instead applied
the “highly likely” common-law test for what is considered
an “accident,” as developed in the Wickman line of cases. At
oral argument, LINA’s counsel insisted that LINA was
“writing to a standard it didn’t have to meet.” But whether
it needed to meet that standard is beside the point. Having
employed that standard in its denial of coverage, it may not
now argue that the claim was denied because Scott’s death
was “reasonably foreseeable,” which is “a far broader
standard than an event that is reasonably viewed as ‘highly
likely to occur.’” See McClelland v. Life Ins. Co. of N. Am.,
679 F.3d 755, 760 n.3 (8th Cir. 2012).
LINA responds by arguing that this is not a new reason
for denial, and that Wolf was not “sandbagged,” because it
consistently cited the “Covered Accident” provision as the
reason for its denial. It notes that the denial letter states that
“Scott’s death was a foreseeable outcome of his voluntary
actions.” (emphasis in original). But LINA consistently
defined “foreseeable” as “highly likely,” which is
“fundamentally inconsistent” with a definition of
“reasonably foreseeable.” See King, 414 F.3d at 1003
14 WOLF V. LIFE INS. CO. OF NORTH AMERICA
(concluding that the two standards represent different bases
on which to consider a claim for benefits).
“The two definitions are at opposite poles” because
“[t]he common law definition asks whether the victim could
reasonably have expected to escape the injury,” whereas the
“foreseeability” test “asks whether the victim could
reasonably have expected to suffer the injury.” King v.
Hartford Life & Accident Ins. Co., 414 F.3d 994, 1008 (8th
Cir. 2005) (en banc) (Bright, J., concurring) (emphases in
original); see also Johnson v. Am. United Life Ins. Co.,
716 F.3d 813, 826 (4th Cir. 2013) (explaining the
“significant difference between these standards”). Applying
the “reasonably foreseeable” test would therefore constitute
a new, post hoc rationale for the denial of Wolf’s claim that
would unduly prejudice Wolf.
“Requiring that plan administrators provide a participant
with specific reasons for denial ‘enable[s] the claimant to
prepare adequately for any further administrative review, as
well as appeal to the federal courts.’” Mitchell v. CB Richard
Ellis Long Term Disability Plan, 611 F.3d 1192, 1199 n.2
(9th Cir. 2010) (alteration in original) (quoting Halpin v.
W.W. Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992)).
After being told that the claim was denied because Scott’s
death was “highly likely” to occur under the circumstances,
Wolf was given an opportunity to appeal that decision both
internally and in federal court by showing that Scott’s death
was not “highly likely” or “substantially certain” to occur.
But by waiting until the case was before this court to
argue that a much lower standard of “accident” should apply
to the claim, LINA denied Wolf the opportunity to present
on the internal appeal different arguments and evidence that
would likely be relevant if he had known that LINA was
applying the lower standard. LINA’s “reasonably
WOLF V. LIFE INS. CO. OF NORTH AMERICA 15
foreseeable” test has therefore been forfeited, and Padfield’s
“substantially certain” test applies.
C. Scott’s death was an “accident” because his death
was not “substantially certain” to occur under the
circumstances
“The question of whether drunk-driving deaths or
injuries are ‘accidental’ for purposes of accidental death
insurance has perplexed the judiciary for some time.”
Johnson, 716 F.3d at 816. This court, however, has not
previously had the occasion to weigh in and apply the
Padfield test to a death or injury involving drunk driving.
Events that can cause death span a vast continuum that
range from intentionally driving off a cliff into the ocean
below (a clear suicide) to driving off a bridge that has
suddenly collapsed due to a structural failure (an undisputed
accident). All jurists would agree that an accidental-death
policy, such as the one involved here, would exclude
coverage for driving off the cliff but allow coverage for
driving off the bridge. The facts of this case, as in most cases
involving drunk driving, fall somewhere in between.
There is no categorical rule excluding insurance
coverage for all alcohol-related deaths. Stamp v. Metro. Life
Ins Co., 531 F.3d 84, 91 (1st Cir. 2008). Instead, courts
“have been careful to explain that the proper approach is
fact-specific and that the decedent’s degree of intoxication is
particularly probative.” Id. at 91 n.9. The key facts that we
must consider here are that Scott had a BAC of 0.20% and
was driving his car 65 miles per hour in the wrong direction
in a 10-miles-per-hour zone at 4:00 a.m. Although these
facts demonstrate that Scott undoubtedly engaged in reckless
conduct, the record does not show that his death was
“substantially certain” to result from that conduct.
16 WOLF V. LIFE INS. CO. OF NORTH AMERICA
Both Wolf and LINA cite various cases that support their
respective positions as to whether drunk-driving deaths are
“accidents.” In considering the cited cases, we note a clear
pattern between cases that applied de novo review versus
those that applied the abuse-of-discretion or arbitrary-and-
capricious standard.
To our knowledge, all of the relevant cases from our
sister circuits have held that a drunk-driving death was a
covered accident under an AD&D policy when applying de
novo review. In each of the circuit cases that LINA cites,
which vary in regard to the recklessness of the insured’s
actions, the courts were reviewing the administrator’s
decision under the abuse-of-discretion or arbitrary-and-
capricious standard. That was because the plans at issue
vested the administrator with discretionary authority to
determine eligibility for benefits or to construe the policy’s
terms. See Sanchez v. Life Ins. Co. of N. Am., 393 F. App’x
229, 230–32 (5th Cir. 2010) (BAC of 0.174%); Davis v. Life
Ins. Co. of N. Am., 379 F. App’x 393, 394–395 (5th Cir.
2010) (BAC between 0.28% and 0.36%); Stamp, 531 F.3d
at 86, 87 (BAC of 0.265%); Lennon v. Metro. Life Ins. Co.,
504 F.3d 617, 619–620 (6th Cir. 2007) (BAC of 0.321%);
Eckelberry v. Reliastar Life Ins. Co., 469 F.3d 340, 342–343
(4th Cir. 2006) (BAC of 0.15%); Cozzie v. Metro. Life Ins.
Co., 140 F.3d 1104, 1106–08 (7th Cir. 1998) (BAC
of 0.252%).
Under that far more deferential standard, courts “do not
search for the best interpretation of a plan or even for one
[they] might independently adopt”; instead, they ask only if
the administrator’s interpretation of the plan was
“reasonable.” Eckelberry, 469 F.3d at 343. Deferring to a
“reasonable” interpretation is particularly significant, if not
outcome-determinative, in an arena such as this where
WOLF V. LIFE INS. CO. OF NORTH AMERICA 17
judges and commentators alike have acknowledged the
difficulty of determining what is an “accident” when drunk
driving is involved. See Lennon, 504 F.3d at 627 & n. 2
(Clay, J., dissenting) (noting that “the barrage of case law”
on the question of what the word “accident” means “suggests
that the meaning of ‘accidental’ is anything but plain”);
Douglas R. Richmond, Drunk in the Serbonian Bog:
Intoxicated Drivers’ Deaths as Insurance Accidents,
32 SEATTLE U. L. REV. 83, 83 (2008) (describing this as “an
astonishingly difficult question to answer”).
Notably, the two circuits that have considered this
question de novo both held that the drunk-driving deaths at
issue were accidents. See Johnson, 716 F.3d at 819, 822–
23; LaAsmar v. Phelps Dodge Corp. Life, Accidental Death
& Dismemberment & Dependent Life Ins. Plan, 605 F.3d
789, 800, 813–14 (10th Cir. 2010). The Eighth Circuit also
reached the same result under the far more deferential abuse-
of-discretion standard of review, concluding that a drunk-
driving death was an “accident” under LINA’s identical
AD&D policy. McClelland v. Life Ins. Co. of N. Am.,
679 F.3d 755, 760–61 (8th Cir. 2012). Importantly, the
insureds in these cases were as reckless, if not more reckless,
than Scott was here.
In Johnson, the insured was driving at 1:30 a.m. with a
BAC of 0.289% when he lost control of his vehicle and
veered off the road, struck a highway sign, and flipped over
multiple times. The Fourth Circuit applied the “substantially
certain” test in the absence of any policy definition of the
word “accident.” 716 F.3d at 826. In the record was “only
general statistical data regarding the extent to which a
driver’s ability to operate a vehicle is impaired by alcohol.”
Id. Although that data “support[ed] the conclusion that
injury or death is a reasonably foreseeable consequence of
18 WOLF V. LIFE INS. CO. OF NORTH AMERICA
driving at significant levels of intoxication,” the court held
that the data did not “demonstrate[] that driving with a BAC
of .289[%] under these circumstances [was] substantially
certain to result in death or severe injury.” Id. (emphasis in
original).
In LaAsmar, the insured had a BAC of 0.227% when he
was driving in the early morning hours on a two-lane country
road at a speed of 60 miles per hour in a 40-miles-per-hour
zone. He was not wearing his seat belt when he was ejected
from the car as it left the road and rolled four and one-quarter
times. The policy at issue did not define the word
“accident,” and the Tenth Circuit refused to supply one.
605 F.3d at 809–13. Instead, the court asked only whether a
reasonable person would believe that the insured’s death in
these circumstances was the result of an “accident.” Id.at 806–08.
The LaAsmar court answered in the affirmative because
a reasonable person “would call the resulting rollover an
‘accident’ . . . whether [the insured] wrecked his truck
because he fell asleep or lost control because he was
speeding.” Id. at 808. “It should also be true,” the court
concluded, “if he ran off the road because he had a BAC of
.227[%].” Id. Although the court made clear that it was “not
suggesting that there are no circumstances where an insured
would be so drunk that a resulting wreck could no longer be
deemed an accident,” it held that the facts of the case did not
clear that bar. Id.Finally, in McClelland, the insured had a BAC of
0.203% when he was riding his motorcycle and “playing
‘follow the leader’ with another motorcycle and possibly
[another] vehicle by weaving in and out of traffic for
approximately six miles.” 679 F.3d at 758, 761. He was not
wearing a helmet and was estimated to be traveling at
WOLF V. LIFE INS. CO. OF NORTH AMERICA 19
90 miles per hour when he missed a curve, slipped onto a
gravel shoulder, and flipped several times. Id. at 758. His
LINA insurance policy defined the word “accident” exactly
as the policy does here.
The Eighth Circuit in McClelland applied the Wickman
test in determining whether an accident had occurred. Id.at 759–61. It reasoned that LINA had overlooked evidence
indicating the insured’s subjective belief that death was not
highly likely. Id. at 760–61. This belief was objectively
reasonable, the court held, because although he was driving
very fast with an elevated BAC, he “had been successfully
performing this feat for a distance of several miles.” Id.
at 761. The court therefore determined that LINA had
abused its discretion in concluding that this was not an
“accident” under the policy. Id. at 761–62.
When considered in light of Johnson, LaAsmar, and
McClelland, the record before us does not support the
conclusion that death was substantially certain to result from
Scott’s conduct. His actions were quite comparable to those
of the insureds in the cases just cited. Scott’s BAC was
slightly less than that of the insured in McClelland, and the
insured there drove much faster. Similarly, although Scott
was speeding more than the insureds in Johnson and
LaAsmar (in relation to the applicable speed limits), he was
significantly less intoxicated than the insureds in those cases.
The record also provides little to no information that
would allow us to assess the actual likelihood of Scott’s
death from his actions. Johnson is particularly persuasive on
this point. As here, the record in that case consisted chiefly
of information supporting the “widely-accepted common-
sense proposition that blood alcohol concentration is directly
correlated with the degree of impairment an individual
20 WOLF V. LIFE INS. CO. OF NORTH AMERICA
displays when driving after drinking.” Johnson, 716 F.3d at
826 (internal quotation marks omitted).
The only information in the record here touching on the
likelihood of Scott dying is found in the statements from
Dr. Siek. He stated that “[t]he probability of accidents
increases exponentially as the [BAC] goes above 0.08[%]”
and that “[b]oth the driving accident and the inability to save
himself from drowning were impacted by his state of
intoxication.” The doctor’s opinion, however, reflects
nothing more than the common knowledge that the
probability of accidents increases as one gets more
intoxicated. And, as the Tenth Circuit has pointed out, “[t]he
fact that driving drunk may increase the chances of being
killed in an accident does not necessarily make that accident
expected.” LaAsmar, 605 F.3d at 811–12 (citation omitted).
In addition, Dr. Siek opined as to the specific “physical
and mental impairments” that would result from a BAC at
Scott’s level. Once more, though, evidence that “makes
clear that impairment is highly likely” for someone with
Scott’s BAC does not help answer whether that impairment
is substantially certain to result in death. See Johnson,
716 F.3d at 826.
None of this information sheds light on how likely
Scott’s death was because the record is devoid of any “data
with respect to drunk driving fatalities [or serious injuries]
in relation to the incidents of drunk driving generally.” See
id.; see also West v. Aetna Life Ins. Co., 171 F. Supp. 2d 856,
903 (N.D. Iowa 2001) (holding, in a case where the insured
fatally crashed with a BAC of 0.20%, that an insurer
unreasonably withheld benefits because it “identifie[d] no
evidence establishing any link between some degree of
impairment, or even increasing degrees of impairment, and
WOLF V. LIFE INS. CO. OF NORTH AMERICA 21
increasing probability of death or injury.” (emphasis in
original) (internal quotation marks omitted)).
There is no doubt that “drunk driving is ill-advised,
dangerous, and easily avoidable.” Kovach v. Zurich Am. Ins.
Co., 587 F.3d 323, 330 (6th Cir. 2009). But many accidents,
if not most, involve an element of negligence or even
recklessness on the part of the insured. People all too
frequently fail to heed stop signs, drive while intoxicated, or
exceed the speed limit. Death caused by such conduct is,
however, a statistical rarity, and the record before us does
not show that Scott’s particular act of drunk driving was
substantially certain to result in his death. The district court
therefore correctly determined that Scott’s death was an
“accident” and thus covered under his father’s insurance
policy.
III. CONCLUSION
“The solution for insurance companies like [LINA] is
simple: add an express exclusion in policies covering
accidental injuries for driving while under the influence of
alcohol, or for any other risky activity that the company
wishes to exclude.” Kovach, 587 F.3d at 338. This would
allow policyholders “to form reasonable expectations about
what type of coverage they are purchasing without having to
make sense of conflicting bodies of caselaw that deal with
obscure issues of contractual interpretation.” Id.LINA did not do so here, which leaves us to decide how
to construe the word “accident,” an inherently difficult
concept to fully capture. And because LINA waited until
this appeal to first argue that Padfield’s definition of the
word “accident” should not apply, it forfeited that argument.
The district court therefore correctly applied Padfield when
it concluded that Scott’s death was not “substantially
22 WOLF V. LIFE INS. CO. OF NORTH AMERICA
certain” to occur from his conduct, and was thus accidental.
Accordingly, we AFFIRM the judgment of the district
court.
IKUTA, Circuit Judge, concurring:
I write separately to emphasize that today’s opinion
applies the definition of “accident” set forth in Padfield v.
AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2002), only
because the Life Insurance Company of North America
(LINA) relied on Padfield and forfeited its argument that the
insurance policy’s own definition of “accident” applies.
It has long been established that courts “faced with
questions of insurance policy interpretation under ERISA”
must “apply federal common law.” Id. at 1125. And it is a
bedrock common law rule that “courts should first look to
explicit language of the agreement to determine, if possible,
the clear intent of the parties.” Gilliam v. Nevada Power
Co., 488 F.3d 1189, 1194 (9th Cir. 2007) (cleaned up). This
is because “ERISA’s primary purpose is to ensure the
integrity of written, bargained-for benefit plans,” Zurich Am.
Ins. Co. v. O’Hara, 604 F.3d 1232, 1236 (11th Cir. 2010),
and “applying federal common law doctrines to alter ERISA
plans is inappropriate where the terms of an ERISA plan are
clear and unambiguous,” id. at 1237 n.4.
Thus, if a policy defines the term “accident,” we must
apply that definition. See Gilliam, 488 F.3d at 1194. Indeed,
we have only applied the Padfield definition in cases where
the relevant policy did not define the term “accident.” See
Padfield, 290 F.3d at 1124; Williams v. Nat’l Union Fire Ins.
Co. of Pittsburgh, PA, 792 F.3d 1136, 1138 (9th Cir. 2015).
And, in cases where the relevant term is defined by the
WOLF V. LIFE INS. CO. OF NORTH AMERICA 23
policy, we apply only that definition. See Gilliam, 488 F.3d
at 1195 (“Our task therefore is to determine whether . . . the
plan’s definition of ‘earnings’ . . . includes [the plaintiff’s]
severance pay.”).
Here, as the court’s opinion notes, Wolf’s insurance
policy expressly defines the term “accident” as “[a] sudden,
unforeseeable, external event that results, directly and
independently of all other causes.” In the ordinary case,
then, our inquiry would be whether the death of Wolf’s son
was “sudden” and “unforeseeable.” See Gilliam, 488 F.3d
at 1194–95. However, LINA forfeited its argument that the
policy’s definition of “accident” applies by failing to present
that argument when it denied Wolf’s claim and at the district
court. Because LINA forfeited that argument, we forego the
general rule that the express language in the policy applies,
see Gilliam, 488 F.3d at 1194–95, and rely on the definition
in Padfield instead.
Indeed, applying the Padfield framework in this case for
any other reason would be contrary to our precedent. See id.Because the court’s opinion is consistent with that precedent,
I concur.