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CRITCHLOW v. FIRST UNUM LIFE INSURANCE COMPANY OF AMERICA

March 29, 2002

SHIRLEY M. CRITCHLOW, PLAINTIFF,
V.
FIRST UNUM LIFE INSURANCE COMPANY OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: David G. Larimer, Chief United States District Court Judge.

  DECISION AND ORDER

Plaintiff, Shirley M. Critchlow, commenced this action on April 14, 2000, under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B). Plaintiff alleges that defendant, First UNUM Life Insurance Company of America ("UNUM"), wrongfully denied plaintiff's claim for benefits under her a group accidental death and dismemberment insurance policy ("the policy") issued by UNUM to Redcom Laboratories, Inc. ("Redcom"), the employer of plaintiff's late son, Daniel Critchlow. Plaintiff, the named beneficiary under the policy, seeks an award of $50,000, the amount of the death benefit provided by the policy. Both sides have moved for summary judgment.

FACTUAL BACKGROUND

The relevant facts are undisputed. Prior to his death on February 26, 1999 at the age of thirty-two, the decedent was unmarried and living with plaintiff and decedent's younger sister in Palmyra, New York. He was employed by Redcom and was covered by the policy, which, with certain exceptions, provided for payment of benefits for death or dismemberment resulting from an "injury." Plaintiff's Ex. A.

Decedent was alone at his residence during the early evening hours of February 26, 1999. Around 8:45 p.m., his sister Deborah came home. She knocked on decedent's bedroom door, but there was no answer. The door was locked, but Deborah assumed that decedent was asleep.

Plaintiff returned home from a babysitting job around midnight. She also knocked on decedent's door and got no response. Worried that something might be wrong, she slipped the lock open using a knife and opened the door. Inside the room, plaintiff found her son lying face down on the floor, his nude body partially bound with rope. He was dead.

It is undisputed that decedent died while practicing "autoerotic asphyxiation," which is described in the coroner's report as a "dangerous form of sexual mannerism in which arousal is induced by depriving the brain of oxygen in one of several ways: hanging, strangulation, chest compression, covering the mouth and nose with a plastic bag or mask." Plaintiff's Ex. E. Although decedent had constructed a system of ropes and counterweights that was apparently intended to incorporate escape mechanisms, or otherwise to ensure that he did not die of asphyxiation, for whatever reason that system failed him on this occasion. It does not appear, however, and UNUM makes no contention, that decedent intended or expected to die that evening, and there was evidence that decedent had engaged in this practice in the past.

Plaintiff applied for accidental death benefits on April 23, 1999. Plaintiff's Ex. F. On July 7, 1999, UNUM denied coverage. UNUM based that decision on two provisions in the policy, the first of which states that UNUM agrees to cover the insured for any loss described in Part I of the policy (including death), and that "[t]he loss must result directly and independently of all other causes from accidental bodily injury which occurs while this policy is in force as to the Insured, herein called `injury.'" Plaintiff's Ex. A. UNUM stated that based on its investigation into decedent's death, it had concluded "that the death of the insured did not result directly and independently of all other causes from accidental bodily injury." Plaintiff's Ex. G. UNUM also cited an exclusion stating that it would not pay if the loss were caused by "[i]ntentionally self-inflicted injuries." Plaintiff's Exs. A, G. UNUM stated that its "investigation further reveal[ed] that the death of the Insured falls within the above Exclusion for intentionally self-inflicted injuries." Id.

Plaintiff appealed that decision to UNUM's ERISA Appeals Committee. The Committee upheld the denial of plaintiff's claim on December 15, 1999.

DISCUSSION

I. Standard of Review

In Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989), the Supreme Court held that "a denial of benefits challenged under [ 29 U.S.C. § 1132(a)(1)(B)] is to be reviewed under a de novo standard unless the benefit plan gives the administrator . . . discretionary authority to determine eligibility for benefits or to construe the terms of the plan." The Second Circuit has stated that "[w]here the plan reserves such discretionary authority, denials are subject to the more deferential arbitrary and capricious standard, and may be overturned only if the decision is `without reason, unsupported by substantial evidence or erroneous as a matter of law.'" Kinstler v. First Reliance Std. Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999) (quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995)). The burden of establishing that the arbitrary-and-capricious standard applies is upon the plan administrator, since "the party claiming deferential review should prove the predicate that justifies it." Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 230 (2d Cir. 1995).

In the case at bar, plaintiff contends that the court should conduct a de novo review of defendant's denial of plaintiff's claim for benefits, since the policy contains no language giving UNUM discretion to interpret the policy's terms or to determine eligibility for benefits. I agree. The policy provides simply that UNUM "will" pay for certain losses, and not for others. Such categorical language is indicative of a lack of discretion on the part of the administrator. See MacMillan v. Provident Mut. Life Ins. Co. of Philadelphia, 32 F. Supp.2d 600, 605-06 (W.D.N Y 1999) ("One indication of the presence or absence of discretionary authority is whether the plan uses categorical or conditional language") (citing Smith v. Rochester Tel. Bus. Mktg Corp., 786 F. Supp. 293, 298 (W.D.N.Y. 1992), aff'd, 40 F.3d 1236 (2d Cir. 1994); see also Heidgerd v. Olin Corp., 906 F.2d 903, 908 (2d Cir. 1990) (holding that statement in benefit plan that began, "Benefits are payable if . . ." did not give administrators discretion, but that another statement that "In some unusual cases, benefits may be payable . . ." did grant discretion to interpret plan).

In any event, defendant appears to concede that de novo review is appropriate here. It has not argued for application of any other standard, and in its interrogatory responses has stated that it "does not intend under the law of this Circuit as it presently exists to claim ...


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