Lennon v. Metropolitan Life Insurance ( 2007 )

BOGGS, Chief Judge,

concurring in the judgment.

Although I agree that MetLife did not act arbitrarily and capriciously in determining that David Lennon’s fatal collision was not an “accident” as contemplated by the terms of GM’s Personal Accident Insurance, I reach this conclusion on somewhat different grounds than the lead opinion does. A major portion of that opinion appears to address the question whether it was correct, as a matter of substantive law, for MetLife to deny benefits here, rather than the question whether or not it was merely arbitrary and capricious to do so. The court’s discussion of concepts from negligence law, which leads it to answer the former question in the affirmative, is not required to answer the latter.

The heart of the district court’s error lies in its evaluation of the seminal case of Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077 (1st Cir.1990), and its progeny. In Wickman, the First Circuit-aware that it might well be “miring in a Serboni-an bog” — attempted to develop a standard by which to determine what constitutes an accident for ERISA purposes. Id. at 1087. The Wickman court concluded that, outside the comparatively rare case where evidence indicates that the victim actually expected the injury suffered, “one must ask whether a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured’s intentional conduct.” Id. at 1088 (emphasis added).

Wickman’& standard, as stated, is a high bar, and arguably many collisions involving a drunk driver would not meet it: as a number of courts have noted, the number of drunk driving arrests swamps the number of drunk driving injuries or deaths, making it difficult to conclude that an injurious collision is “highly likely to occur as a result” of driving while intoxicated. See, e.g., Eckelberry v. ReliaStar Life Ins. Co., 402 F.Supp.2d 704, 712 (S.D.W.Va.2005); West v. Aetna Life Ins. Co., 171 F.Supp.2d 856, 904 (N.D.Iowa 2001). A number of courts, including at least one district court in this circuit, applying this standard as formulated above, have found a specific drunk-driving collision to be accidental. See, e.g., Harrell v. Metro. Life Ins. Co., 401 F.Supp.2d 802 (E.D.Mich.2005).

However, a number of courts-in particular, several district courts in this circuit-finding Wickman persuasive and purporting to apply it, have (intentionally or not) modified its objective standard from one of “high likelihood” to “reasonable foreseeability,” and have concluded that a collision by a highly intoxicated driver (including a driver with a blood alcohol level comparable to, and even considerably lower than, Lennon’s), being reasonably foreseeable, is not an accident. See, e.g., Miller v. Auto-Alliance Int’l Inc., 958 F.Supp.172 (E.D.Mich.1997); Walker v. Metro. Life Ins. Co., 24 F.Supp.2d 775 (E.D.Mich.1997) (.29 g/100 ml); Nelson v. Sun Life Assurance Co. Of Canada, 962 F.Supp. 1010 (W.D.Mich.1997) (.18 g/100 ml; reviewing de novo); Cates v. Metro. Life Ins. Co., 14 F.Supp.2d 1024 (E.D.Tenn.1996) (.18 %), aff'd, 149 F.3d 1182 (6th Cir.1998) (unpublished); Fowler v. Metro. Life Ins. Co., 938 F.Supp. 476 (W.D.Tenn.1996) (.26%).

The district court examined these cases (all of which had been cited by MetLife in its second, expanded denial letter), and found them “unpersuasive,” for failing to adhere to the “highly likely” standard articulated in Wickman, and failing to identify “any evidence to support the conclusion that an intoxicated driver clearly should foresee death.” 466 F.Supp.2d at 750 (emphasis added). If the administrator’s decision here were subject to the district court’s de novo review, its rejection of these cases in favor of the stricter standard advanced in Wickman (or some other standard entirely) might have been appropriate.¹ But when it reviews under an arbitrary and capricious standard, the district court cannot simply substitute its judgment for that of the administrator. See, e.g., Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Given that a number of courts, including several within this circuit, have approved characterizing drunk-driving collisions involving drivers of comparable or lower intoxication levels as non-accidents for ERISA purposes, there was no basis for the district court to conclude that Met-Life’s decision to do the same-under the set of facts presented here, articulated by MetLife and well-analyzed in detail in the lead opinion-was arbitrary and capricious.

Accordingly, I would reverse the judgment of the district court on the grounds that, in following a standard adhered to by a number of courts, within and without this circuit, MetLife did not act arbitrarily and capriciously, without reaching the question whether to approve or disapprove that standard.

1 . Though of course simply departing from the requirements of Wickman, which is not binding authority in this circuit, would not itself be sufficient to reject these cases or the standard they articulate.