Kovach v. Zurich American Insurance , 587 F.3d 323 ( 2009 )

McKEAGUE, Circuit Judge,

dissenting.

I would affirm the district court’s decision. The majority’s lengthy opinion raises many arguments that I feel compelled to address but, ultimately, I view this as an unfortunate but fairly simple case. When plaintiff-appellant Thomas Kovach decided to mount his motorcycle and drive it on crowded roadways, with a blood alcohol content (BAC) nearly double the legal limit, he engaged in high-risk behavior that made it reasonably foreseeable and highly likely that he would be injured as a result of his choices. It was, therefore, not arbitrary and capricious for defendantappellee Zurich to determine that the ensuing traffic collision was not accidental and to deny his claim.

Initially, I emphasize that our review of this case is governed by the arbitrary and capricious standard. The arbitrary and capricious standard requires this panel to uphold the plan administrator’s decision, “if it is the result of a deliberate, principled reasoning process and if it is supported by substantial evidence,” Baker v. United Mine Workers of Am. Health & Ret. Funds, 929 F.2d 1140, 1144 (6th Cir.1991), and if the decision is “‘rational in light of the plan’s provisions.’ ” Jones v. Metro. Life Ins. Co., 385 F.3d 654, 661 (6th Cir.2004) (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir.1996)). Furthermore, plan administrators have “great leeway in interpreting ambiguous terms.” Moos v. Square D Co., 72 F.3d 39, 42 (6th Cir.1995) (citing Cook v. Pension Plan for Salaried Employees of Cyclops Corp., 801 F.2d 865 (6th Cir.1986)). Despite paying lip service to the correct standard of review, the majority’s analysis smacks of a much more rigid standard of review, and concludes with an impermissible substitution of its judgment for that of the plan administrator.

Furthermore, I find that the majority’s analysis overlooks two crucial factors: (1) Kovach was driving a motorcycle at the time of the accident, an especially dangerous form of transportation, and (2) it was not arbitrary and capricious for Zurich to conclude that, in addition to having a BAC nearly twice the legal limit, Kovach was also intoxicated on opiates at the time of the accident.

A. Zurich’s finding of opiate use

Zurich’s decision to partially base its denial of Kovach’s claim on the conclusion that Kovach was under the influence of opiates at the time of the traffic collision was the result of a deliberate, principled reasoning process and was supported by substantial evidence. (Administrative Record “A.R.” 58) (finding Kovach’s death not accidental because it “was a reasonably foreseeable consequence of driving while highly intoxicated and under the influence of drugs”). A number of considerations support Zurich’s determination that Kovach was on opiates at the time of the traffic collision: (1) the toxicology report showing a positive test for opiates, (2) evidence indicating Kovach regularly used Vicodin prior to the traffic collision, (3) Kovach’s failure during Zurich’s review of his claim to dispute Zurich’s findings or provide clarifying evidence. Kovach cannot fail to dispute Zurich’s findings and then expect factual ambiguities in the record to be resolved in his favor on appeal. See Perry v. Simplicity Eng’g, 900 F.2d 963, 966-67 (6th Cir.1990) (noting that the primary goal of ERISA is to provide “a method for workers and beneficiaries to resolve disputes over benefits inexpensively and expeditiously” and concluding that the claimant had not presented sufficient evidence on a key issue to the plan administrator until he was before the district court and, therefore, that denial was proper); Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 457 (6th Cir.2003) (“The scope of the district court’s and this court’s review of the denial of benefits is limited to the administrative record available to the plan administrators when the final decision was made.”).

The administrative record shows that MetroHealth Medical Center tested Kovach’s blood at the time of his admission, and the results were positive for opiates. (A.R.129). During the processing of his claim, Kovach did not deny or contest with contrary evidence, Zurich’s finding that his use of opiates contributed to the collision, and that he was on drugs at the time of the traffic collision. (See A.R. 45-50).¹ Instead, it is only in his arguments before this court and the district court that Kovach now claims that the opiates in his system were the result of drugs administered to him by medical personnel after the traffic collision. (Appellant’s Br. at 6). The only evidence he cites for this, and the only evidence in the administrative record, is the notation by MetroHealth Life Flight personnel who took him from Robinson Memorial Hospital, where he was initially admitted after the traffic collision, to MetroHealth. (A.R.75, 129) (the notation indicated that “morphine,” an opiate, was administered to Kovach during the flight).

However, there is documented evidence in the administrative record in the form of Kovach’s admission report at MetroHealth, which Zurich had to consider and which supports its determination that Kovach was on opiates at the time of the accident. Kovach’s admission report from Metro-Health lists all of the medications that he was on at the time he was admitted. This information was provided to medical personnel at MetroHealth by Kovach, his family, or other medical personnel to enable them to accurately treat him. The admission report clearly shows that, for months before the collision, Kovach had been prescribed Vicodin — an opiate — with instructions to take it every six hours. (A.R.297, 85). The report also shows Kovach’s frequent refills of his Vicodin prescription, including his most recent refill, just eighteen days before the collision, and it certainly provided another reasonable explanation for the positive opiate tests in his bloodstream and provided substantial evidence for Zurich to conclude that Kovach was under the influence of opiates at the time of the collision. Id.

The evidence in the record, when coupled with Kovach’s conduct before the plan administrator substantiates the reasonableness of Zurich’s finding that Kovach was on opiates at the time of the collision, and its decision to base the denial of his claim in part on this factor. The use of even a legally prescribed opiate like Vicodin, in conjunction with alcohol, made it even more reasonably foreseeable or highly likely that Kovach’s ability to safely drive his motorcycle would be significantly impaired. See Physicians’ Desk Reference, 529-30 (63d ed. 2009) (“[Vicodin], like all narcotics, may impair the mental and/or physical abilities required for the performance of potentially hazardous tasks such as driving a car or operating machinery; patients should be cautioned accordingly. Alcohol and other CNS [Central Nervous System] depressants may produce an additive CNS depression, when taken with this combination product, and should be avoided.”). Hence, Zurich’s findings that Kovach voluntarily and intentionally ingested opiates before driving his motorcycle reasonably supported its conclusion that his claimed injuries were caused not by an “accident” but by deliberate or reckless misconduct.

B. Lennon

Despite the fact that it was decided after Zurich denied Kovach’s claim, the reasoning employed in Lennon, a closely analogous case, extends to this ease. See Lennon v. Metropolitan Life Ins. Co., 504 F.3d 617, 618-26 (6th Cir.2007) (upholding a plan administrator’s finding that a motorist’s high risk behavior while driving drunk was not accidental and provided a valid ground to deny his beneficiary’s claim). The majority endeavors to distinguish Lennon but, despite these efforts, the fact remains that Kovach engaged in the same type of voluntary high risk behavior exhibited in Lennon; behavior that meant it was not arbitrary and capricious for the plan administrator to find that his traffic collision was not an accident. The majority finds particular significance in the fact that Lennon’s BAC level was more than double Kovach’s BAC in this case. However, Kovach’s BAC was still nearly double the legal limit at the time of his admission to Robinson Memorial Hospital. Thus, like Lennon, Kovach was illegally driving with a BAC well above the state presumption for intoxication.² The BAC levels have been set by the state legislature. It is the legislature, and not this court on a case to case comparison method, that determines when someone is too drunk to drive. By legislative judgment Kovach, like Lennon, was too drunk to drive. See Phelps v. Positive Action Tool Co., 26 Ohio St.3d 142, 145, 497 N.E.2d 969 (1986) (“The legislature, on the basis of extensive research into the problem of drunken drivers, has determined and statutorily established that a blood alcohol level of .10 percent has an adverse effect on an individual’s coordination and control and that an individual with that blood alcohol level is incapable of safely operating a motor vehicle.”).³ Furthermore, Zurich reasonably found that Kovach was on opiates when his collision occurred. The combination of alcohol and Vieodin made it even more likely that a traffic collision would occur, rendering Kovach’s behavior all the more reckless.⁴

The majority also distinguishes Lennon by noting that, in addition to drunk driving, the only other thing Kovach did out of the ordinary was drive through a stop sign. In contrast, Lennon drove the wrong way up a one way street at a high rate of speed. However, running a stop sign at a crowded intersection, like driving at a high rate of speed up a one way street, is a voluntary illegal act. Thus, even though Kovach’s activities were different from the activities of the claimant in Lennon, they were also similar in that they were voluntary, high-risk illegal activities. Under Ohio law, driving drunk (no matter how drunk) and driving through a stop sign (no matter how common it is) are both illegal activities.

In attempting to show that Kovach’s behavior was less risky then Lennon’s, the majority ignores another voluntary decision that Kovach made, the decision to ride a motorcycle while intoxicated. Both statistically and logically, a motorcycle is a more dangerous form of transportation than a car. The National Center for Statistics and Analysis released data on traffic safety showing that, “per vehicle mile traveled in 2006, motorcyclists were 35 times more likely than passenger car occupants to die in a motor vehicle traffic crash and 8 times more likely to be injured.” Nat’l Hwy. Traffic Safety Admin., Nat’l Center for Statistics and Analysis, Traffic Safety Facts: 2007 Data (2008), DOT HS 810 993, at http://www-nrd.nhtsa.dot.gov/Pubs/ 810993.PDF. Driving a motorcycle is a voluntary decision that substantially enhances the risk of a death or injury.

When the decision to drive a motorcycle is coupled with the decision to drive while intoxicated, the risk of an injury further increases. The National Highway Safety Administration has published a report describing the increased risks of driving a motorcycle, as compared to other motor vehicles, while intoxicated: “[f]or example, 1 in 4 automobile driver fatalities in the United States were alcohol related during 2005. In comparison, a higher proportion of motorcycle rider fatalities (1 in 3) were related to alcohol in the same year.” U.S. Dep’t of Trans., Nat’l Hwy. Traffic Safety Admin., Effects of Alcohol on Motorcycle Riding Skills: Final Report, DOT HS 810 877, Feb. 2008, http://www.nhtsa.dot.gov/ staticfiles/DOT/NHTSA/Traffic% 20Inju-ry% 20Control/Articles/Assoeiated% 20 Files/HS810877.pdf (finding also that impairing effects on riding performance were evidenced at a BAC level of .08, the legal limit in Ohio). Thus, Kovach’s decision to drive a motorcycle while intoxicated greatly enhanced the risk of harm in a manner analogous to the facts presented in Lennon, and justified as reasonable Zurich’s decision to deny his claim.

C. Zurich’s definition of accidental

Even apart from Lennon, Zurich’s decision cannot reasonably be deemed arbitrary and capricious. Under the arbitrary and capricious standard, the plan administrator’s decision does not have to follow a particular test, rather the plan administrator need only use a test that follows a deliberate, principled reasoning process. See Lennon, 504 F.3d at 625 (“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) might have been appropriate. But when it reviews under an arbitrary and capricious standard, the district court cannot simply substitute its judgment for that of the administrator” (Boggs, J. concurring)) (citing Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).).

1. The Wickman standard

Zurich based its decision to deny coverage on an interpretation of “accidental,” the key term in the policy, that was not arbitrary and capricious. Although not obligated to, Zurich already used a test that incorporated the Wickman standard the majority now adopts and applies:

Under applicable case law, an injury is accidental if it is neither subjectively expected nor objectively foreseeable. Jones v. Metro. Life Ins. Co., 385 F.3d 654 (6th Cir.2004). A death or injury is objectively foreseeable if a reasonable person with a background and characteristics similar to the insured, would have viewed the resulting injury or death as substantially certain or highly likely to result from the conduct.

(Zurich’s denial letter; A.R. 58-59).⁵ This is, essentially, the same Wickman standard that the majority adopts. Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1088 (1st Cir.1990) (the court looked first to the subjective “reasonable expectations of the insured when the policy was purchased” and, if there is insufficient evidence on this point, then the court looked to “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”). In fact, it is difficult to see how “objectively foreseeable” (the term Zurich used to define the Wickman standard) and the “reasonably foreseeable” language used throughout the denial letter are conflicting standards. Instead, it appears that Zurich used objectively foreseeable as shorthand for the objective prong of the Wickman standard and reasonable foreseeable as shorthand for the combined objective and subjective prongs required by Wickman. Thus, the phrase “reasonably foreseeable,” as used by Zurich, is practically equivalent to the Wickman standard, combining both its subjective and objective prongs.

Moreover, even if “reasonable foreseeable” is not a fair proxy for the Wickman standard, the majority in Wickman concluded that, “Illegally, ‘should have known’ is synonymous with, if not even a higher standard than, the reasonable expectation standard we promulgated above. Similarly, ‘substantially likely to occur’ is an equivalent, if not tougher, standard to ‘highly likely to occur.’ ” 908 F.2d at 1089 (emphasis added). Thus, Wickman itself recognized that its standard could be expressed in different words that represented an equivalent or higher standard. Again, it is difficult to see how the reasonably foreseeable language Zurich used in its denial letter is a different or lesser standard when compared to “should have known” or “substantially likely to occur,” if it is different from the actual language of the Wickman standard (substantially certain or highly likely to result from) to begin with. Furthermore, as emphasized above, the Wickman court labeled its test as “the reasonable expectation standard.” Logically, reasonable expectation is nearly identical to reasonably foreseeable. Because Zurich applied an analysis that is similar to Wickman and used terms either nearly identical to the Wickman standard or meant to be a shorthand for the Wick-man standard, its decision was not arbitrary and capricious.

The cases that Zurich discussed in its denial letter also analyzed, cited to, or relied on the Wickman standard in reviewing the decisions of plan administrators. See Jones v. Metro. Life Ins. Co., 385 F.3d 654, (6th Cir.2004) (analyzing Wickman and describing it in terms similar to those used by Zurich); Nelson v. Sun Life Assurance Co. of Canada, 962 F.Supp. 1010, 1012-13 (W.D.Mich.1997) (analyzing and using Wickman in deciding to uphold plan administrator’s denial of benefits); Walker v. Metro. Life Ins. Co., 24 F.Supp.2d 775, 780-82 (E.D.Mich.1997) (upholding plan administrator’s denial of claim after analyzing the facts under the controlling Wickman standard); Miller v. Auto-Alliance Int’l, Inc., 953 F.Supp. at 175-77 (E.D.Mich.1997) (citing to Wickman); Cates v. Metro. Life Ins. Co., 14 F.Supp.2d 1024, 1026-27 (E.D.Tenn.1996) (relying on Wickman in upholding plan administrator’s denial of benefits); and Fowler v. Metro. Life Ins. Co., 938 F.Supp. 476, 480 (W.D.Tenn.1996) (relying on Wickman in upholding plan administrator’s denial of benefits).

Finally, applying the language from the Wickman standard to the facts of this case, as the majority proposes to do, it is clear to me that Zurich’s decision was not arbitrary and capricious. Kovach’s intentional choices, to drive a motorcycle, an inherently dangerous type of transportation, while intoxicated on a mixture of opiates and alcohol, and to drive through a stop sign, represented conduct that a reasonable person would have viewed as highly likely or substantially certain to result in an injury. Furthermore the Kovaches⁶ should not be deemed to have reasonably subjectively expected that their disability insurance would cover such reckless behavior.

2. Zurich’s reliance on case law

Zurich also reasonably relied on federal case law in determining the meaning of “accidental.”⁷ This case law provided a reasonable basis for Zurich’s denial of Kovach’s claim and shows that Zurich’s decision was not arbitrary and capricious. All but one of the many cases Zurich based its decision on dealt with injures to intoxicated motorists. Moreover, of those cases that dealt with an intoxicated motorist, all of them upheld a plan administrator’s decision to define accidental as excluding occurrences involving driving with a BAC significantly over the legal limit. See Nelson v. Sun Life Assurance Co. of Canada, 962 F.Supp. 1010, 1012-13 (W.D.Mich.1997) (BAC of .18); Walker v. Metro. Life Ins. Co., 24 F.Supp.2d 775, 780-81 (E.D.Mich.1997) (BAC of .22); Miller v. Auto-Alliance International, Inc., 953 F.Supp. 172, 175-77 (E.D.Mich.1997) (BAC of .29); Cates v. Metro. Life Ins. Co., 14 F.Supp.2d 1024, 1027 (E.D.Tenn.1996) (BAC of .18); and Fowler v. Metro. Life Ins. Co., 938 F.Supp. 476, 480 (W.D.Tenn.1996) (BAC of .26). The majority focuses on the fact that the injured parties in these cases had a BAC that was higher, to varying degrees, than Kovach’s in this ease. However, this distinction ignores the fact that Kovach, like each of the comparable claimants, was driving illegally with a BAC well over the legislatively determined limit. It was this key similarity, when coupled with the reasoning from these cases, that Zurich relied on in deciding to deny coverage to Kovach. Furthermore, it was not arbitrary and capricious for Zurich to conclude that, in addition to his high BAC level, Kovach was also on opiates at the time of the collision. This factor enhanced Kovach’s level of intoxication. As a result, the reasoning in each of these cases supports Zurich’s decision to deny coverage.

3. Foreseeability of injury

The majority criticizes Zurich for failing to provide information on the foreseeability of harm to Kovach based on his specific BAC, which was nearly double the legal limit. However, in criticizing Zurich, the majority overlooks the more important point that Kovach did not contest that his high BAC and opiate use contributed to the traffic collision, or even the degree of his intoxication. When Zurich based its decision on Kovach’s level of intoxication, it was incumbent on Kovach to challenge their determination. By failing to do so, Kovach essentially conceded that point. Furthermore, since Kovach did not contest this point, Zurich had no reason to provide additional evidence or argument establishing how intoxicated Kovach was and the degree to which that contributed to his injury.

4. Ordinary meaniny

In an effort to discredit Zurich’s interpretation of the term accidental, the majority provides an ordinary meaning of “accidental,” but a closer examination of the ordinary or dictionary meaning of “accidental” does not reveal a single accepted understanding. Instead, the ordinary meaning seems to establish that there is more than one meaning of the word “accidental,” and that Zurich’s interpretation, even if not the best, was certainly not an arbitrary and capricious interpretation. The majority accepts the ordinary meaning of accidental to be “occurring unexpectedly or by chance” or “happening without intent or through carelessness and often with unfortunate results.” Kovach’s traffic collision was obviously unexpected in the sense that he clearly did not actually expect it would happen; if he did, then hopefully he never would have driven his motorcycle while intoxicated in the first place. But, to a third party observer — an ordinary person — the fact that an intoxicated motorcyclist ran a stop sign, and that a collision occurred after an intoxicated motorcyclist ran a stop sign would both probably be expected, or at least sufficiently careless that unfortunate results would certainly not be unexpected. Certainly an ordinary person would expect that, if one drives with a BAC well above the legal limit, he or she should expect that a traffic collision would be much more likely to occur, which is why there are laws against driving while intoxicated. See Michigan v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (describing the well known dangers and costs of drunk driving).

Furthermore, to say that Kovach’s traffic collision happened by chance, without intent, or through mere carelessness is to absolve Kovach of the responsibility the ordinary person would certainly feel he had for the traffic collision. By driving a motorcycle while intoxicated, Kovach engaged in more than merely careless behavior, he intentionally chose to engage in grossly negligent or reckless behavior. Indeed, the first definition of accidental listed in Webster’s dictionary, which the majority omits, articulates the importance of assigning responsibility to Kovach’s decisions:

1: arising from extrinsic causes. http://www.merriam-webster.com/ dictionary/accidental. This primary definition captures the underlying sense of responsibility or, rather, the lack thereof that is ordinarily associated with the term accidental. Something accidental is something caused by external forces, or extrinsic causes, not something caused by personal decisions. But Kovach’s injury was a result of his irresponsible choices, it was due to his misconduct, and it was his fault. The police report established that he ran a stop sign and the blood tests at the hospital showed that he was intoxicated. An ordinary person, asked who was to blame for Kovach’s “accident,” would certainly assign the fault and the responsibility to him and to his choices, not to extrinsic causes. In this case, his personal choices to drive while intoxicated and to drive his motorcycle through the stop sign caused the traffic collision, not the extrinsic or accidental causes (the other car, the pavement, the weather conditions, etc.). In any event, it was certainly not arbitrary and capricious for Zurich to follow this ordinary meaning, and to determine that Kovach’s injuries were not caused by accidental means under the ordinary meaning or dictionary definition of the word.

5. Other risky activities

The majority hypothesizes that this court would not permit a plan administrator to find that injuries resulting from text messaging while driving, drowsiness while driving, or driving after taking certain over-the-counter medications were not the result of an accident. While I would wait for an actual case to determine what this court would find, I note that these examples are not analogous to Zurich’s denial here because Kovach was engaged in illegal activity: he drove his motorcycle through a stop sign with a BAC nearly double the legal limit and while on opiates. In contrast, while unwise, it would not have been illegal for Kovach to drive while text messaging, drowsy, or even on most over-the-counter medications.

6. Lack of a Speciñc Exclusion

I agree that Zurich could have added a specific exclusion stating that injuries resulting from driving while intoxicated would not be considered accidental, and this would have obviated the need for this case. However, plan language will never cover every conceivable situation, nor should it be expected to. That is why plan administrators, like Zurich, are given discretion to determine the meaning of plan language in the first place. Furthermore, while Zurich did include specific exceptions for “skydiving, parasailing, hangglinding [sic], bungee-jumping, or any similar activity,” all of these activities are legal, unlike driving through a stop sign while intoxicated.

D. Conclusion

The majority adopts the Wickman standard and concludes that Zurich failed to apply it in this case. If that were the case, then it seems that it would be appropriate to remand and allow Zurich to reconsider its decision in light of Wickman. However, it is clear that, although not required to, Zurich already applied the Wickman standard to the facts of this case and that its decision to deny benefits was not arbitrary and capricious. Consequently, I respectfully dissent from the majority’s opinion and would affirm the district court’s decision.

1 . In his response to the denial letter, Kovach's lawyer does not once dispute that Kovach was on opiates at the time of the accident. Furthermore, he attached an affidavit from Kovach to his response, which also does not dispute that Kovach was on opiates at the time of the accident.

2 . The majority cites the lead opinion in Lennon for the proposition that Lennon did not consider cases like Kovach's where the motorist is only "somewhat impaired.” 504 F.3d at 624. There is no basis in the record to suggest that Kovach was only somewhat impaired. His BAC was nearly double the legal limit. Furthermore, Zurich found that he was on opiates at the time. The issue reserved in Lennon seems to cover drivers with a BAC much closer to or under the legal limit, and not on opiates.

3 . Ohio has since lowered the BAC limit to .08%.

4 . The majority engages in statistical speculation that the "highly likely” standard it adopts "obviously means a good bit more probable than simply 'more likely than not,’ ” and concludes that "one might contemplate a 75% or higher probability before the average person would be persuaded that a collision was ‘highly likely’ to occur.” (Majority Op. 337). While I understand that the majority undertakes this analysis "without any pretense of being statistically accurate,” I don’t think that the "highly likely” standard is wedded to the "more likely than not” standard. The First Circuit, which created the Wickman test which the majority adopts, agrees:

Moreover, the focus of our objective analysis in Wickman was not on the statistical probability that death would occur from the decedent’s actions. Instead, we were concerned chiefly with what a reasonable person would perceive to be the likely outcome of the intentional conduct. Wickman, 908 F.2d at 1089. Russian roulette provides an archetypal example of this critical distinction. From a statistical standpoint, the likelihood of dying from a single round of Russian roulette is 16%-one in six. Such a death is not "highly likely” if that phrase is taken to mean "more likely than not” or "substantially certain.” In fact, those who play Russian roulette have a decent chance, statistically speaking, of not being injured. Lennon, 504 F.3d at 623. Nonetheless, such a death "would not be publicly regarded as an accident” because the mortal risk associated with playing Russian roulette is patently obvious to any reasonable person. Wickman, 908 F.2d at 1087. Similarly, even if Mrs. Stamp had adduced evidence that those who drive while extremely drunk have a better than even chance of arriving home safely, that evidence would not have been dispositive. Statistical analysis is simply not at the core of the Wickman analysis. Instead, as the Sixth Circuit has explained, Wickman s framework reflects 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.” Lennon, 504 F.3d at 623. It was not arbitrary for the plan administrator here to conclude that Mr. Stamp’s decision to drive while grossly intoxicated qualifies as overwhelmingly and disproportionately risky conduct.

Stamp v. Metro. Life Ins. Co., 531 F.3d 84, 89-90, 92-93 (1st Cir.2008) (applying Wickman's definition of accidental in the context of a death resulting from driving while intoxicated and noting that ''[ajpplying Wickman, federal courts have, 'with near universal accord,' upheld plan administrators' determinations that 'alcohol-related injuries and deaths are not "accidental” under insurance contracts governed by ERISA’ ” (numerous citations omitted)). The majority argues that “playing Russian roulette has zero social utility, whereas using motorized transportation to move about has a very high level of social utility.” (Majority Op. 338). I agree that using motorized transportation to move about has a high level of social utility. However, riding a motorcycle with a BAC nearly double the legal limit while on opiates does not. (A.R.454, 37) (noting that the accident occurred at approximately 7:30 p.m.). Furthermore, driving a motorcycle with a BAC nearly double the legal limit while on opiates, significantly increases the likelihood of an accident, when contrasted with driving while not intoxicated. In this case, I believe that Kovach’s decision to drive his motorcycle while intoxicated created a high likelihood of risk that, when weighed against the lack of social utility of driving while intoxicated, was so overwhelmingly disproportionate that the resulting injury was clearly outside a definition of accidental that is not unreasonably narrow.

5 . Indeed, in his appeal to Zurich from their denial, Kovach even criticizes Zurich for "incorrectly” using the Wickman standard, which "the Sixth Circuit has not adopted” for the definition of accident. (A.R.46.)

6 . Kovach’s spouse purchased the insurance.

7 . Because I would find that Zurich was not arbitrary and capricious in deciding that Kovach's injuries were not the result of an accident, I do not consider whether his injuries resulted from a self-inflicted wound.