BLOGS: Southeastern ERISA Watch

Monday, March 26, 2012, 11:24 AM

Courts in the Fourth Circuit Continue Trend: Death from Driving While Intoxicated Is Not an “Accident.”

Magistrate Judge Patrick Auld, sitting in the Middle District of North Carolina, found in favor of a plan fiduciary who determined that a death resulting from driving while intoxicated was not an “Accident” for purposes of an Accidental Death & Disability benefit under an ERISA-qualified employee benefit plan. Johnson v. American United Life Ins. Co., 2012 U.S. Dist. Lexis 32718 (M.D. N.C. 2012).

In Johnson, the plan participant died after his pickup truck left the road at an excessive speed, hit a road sign, and overturned several times. The post-mortem toxicology report showed a blood-alcohol concentration of .2898, more than three times the legal limit.

Traditionally, Courts have found a concrete definition of “accident” elusive, particularly in a situation like the scenario in Johnson, when a driver intentionally became intoxicated and intentionally decided to drive, knowing the inherent dangers, yet probably did not intend to crash, sustain injury or die.

Judge Auld rejected Defendant’s argument that this case was exactly like Eckleberry v. ReliaStar Life Ins. Co. 469 F. 3d 340 (4th Circ. 2006), a case with a similar fact pattern. In Eckleberry, the Court reviewed the fiduciary’s decision under the “abuse of discretion” standard of review. Here, because the plan did not give discretionary authority to the defendant, the Court was called upon to review the plan fiduciary’s determination de novo, and therefore was required to determine whether the benefit denial was the correct determination, not just a reasonable one.

In taking on the task, Judge Auld took a different approach from others in the Fourth Circuit, including Eckleberry, which applied federal common law and relied primarily upon the framework laid out in the seminal decision of Wickman v. Northwestern Nat’l Ins. Co., 908 F. 2d 1077 (1st Cir. 1990). Under the Wickman test, when there was no evidence of the deceased’s actual expectations (as is often the case), the Court asked the question of whether a reasonable person would have viewed the injury as “highly likely to occur” as a result of the deceased’s intentional conduct.

Judge Auld declined to apply Wickman and instead adopted the definition of “accident” under N.C.G.S. Sec. 58-3-30(b). Under this statute, which uses an “accidental result” test, a loss resulting from an intentional, voluntary act is still accidental if the injury (or result) is unanticipated and unexpected. Even under this test, however, Judge Auld, while careful not to adopt a per se rule, found: “[A] crash by a speeding driver in Mr. Johnson’s [intoxicated] condition [is] as much an anticipated and expected result as a bullet hitting the head of someone who chooses to play Russian Roulette.” This reference was a nod to Wickman, (illustrating an unreasonable expectation of survival, even if death were not actually intended). Judge Auld seemed to be sending a clear message that, regardless of the test applied, driving while intoxicated creates a considerable hurdle to establishing the resulting injury/death as accidental.

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