The opinion of the court was delivered by: David G. Larimer, Chief United States District Court Judge.
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.
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
Plaintiff appealed that decision to UNUM's ERISA Appeals Committee. The
Committee upheld the denial of plaintiff's claim on December 15, 1999.
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
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 ...