Petition for Writ of Certiorari — Rick V. Caldwell, et ux., Petitioners v. Unum Life Insurance Company of America

Supreme Court briefJan 14, 2020

Ask Donna

What actually matters in this document.

Text

No. _________

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------RICK V. CALDWELL and SONYA S. CALDWELL,

Petitioners,

vs.

UNUM LIFE INSURANCE COMPANY,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------RICHARD A. MINCER, #312073

HIRST APPLEGATE, LLP

1720 Carey Avenue, Suite 400

P. O. Box 1083

Cheyenne, WY 82003-1083

(307) 632-0541

rmincer@hirstapplegate.com

Attorney for Petitioners

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED FOR REVIEW

UNUM (and other insurers) asserts ERISA insurers do not have a legal duty to draft unambiguous

plans and policies. UNUM then argues that is has

discretion to construe any ambiguities in its own

favor and courts must affirm these decisions in the

name of Firestone deference. The 10th Circuit

(among others) agreed, at least for insurers whose

policy includes a discretionary provision. Does

construing ambiguous insurance policy terms

against ERISA beneficiaries undermine the purpose of ERISA?

II. If ERISA insurers have a duty to draft unambiguous policies, should courts enforce this duty

through the longstanding doctrine of contra

proferentem regardless of whether or not the insurer has granted itself deference to interpret policy terms?

III. Did Congress intend to create two different classes

of ERISA beneficiaries based on whether a plan or

policy contained a grant of deference – one with

the same substantive rights enjoyed before the

creation of ERISA and one with less substantive

rights and protections?

IV. Should the 10th Circuit’s decision be reversed and

judgment entered in favor of the Caldwells?

PARTIES TO THE PROCEEDINGS

Petitioners Rick V. Caldwell and Sonya S. Caldwell

were the plaintiffs in the district court proceedings and

appellants in the court of appeals proceedings. Respondent Unum Life Insurance Company was the defendant in the district court proceedings and appellee

in the court of appeals proceedings.

RELATED CASES

Caldwell v. Unum Life Ins. Co. of Am., No. 16-CV236-S, United States District Court for the District of

Wyoming, Opinion, May 3, 2017

Caldwell v. Unum Life Ins. Co. of Am., No. 2:16-CV0236-SWS, Opinion, September 21, 2017

Caldwell v. Unum Life Ins. Co. of Am., No. 17-8078,

United States Court of Appeals for the Tenth Circuit,

Opinion, September 18, 2019

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........

PARTIES TO THE PROCEEDING ......................

RELATED CASES ...............................................

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

PETITION FOR A WRIT OF CERTIORARI .......

OPINIONS BELOW.............................................

JURISDICTION ...................................................

STATUTORY AND REGULATORY PROVISIONS

INVOLVED .......................................................

STATEMENT OF THE CASE..............................

The Accident .............................................. 11

The Policy .................................................. 11

The Claims Manual ................................... 12

UNUM Actually Uses the Crime Exclusion

to Exclude All Claims Where Its Insured is

Negligent ................................................... 14

ARGUMENT AND REASONS FOR GRANTING

THE PETITION ............................................... 15

Summary of Argument .............................. 15

The Importance of Contra Proferentem, the

First Principle of Insurance Law .............. 19

TABLE OF CONTENTS—Continued

Page

Courts Must Apply Contra Proferentem in

ERISA Cases to Fulfill Congress’ Intent

to Protect Beneficiaries’ Contractually Defined Benefits............................................. 21

Purposes of ERISA .................................... 24

The Standard of Review Cannot Undermine the Purpose of ERISA ....................... 27

The Many Differences Between Trusts and

Insurance Policies ....................................... 29

CONCLUSION..................................................... 32

APPENDIX

Order and Judgment, United States Court of

Appeals for the Tenth Circuit (September 18,

2019) ................................................................. App. 1

Order on Cross Motions for Summary Judgment, United States District Court, District of

Wyoming (September 21, 2017) ..................... App. 21

Judgment in a Civil Action, United States District Court, District of Wyoming (September

21, 2017) ......................................................... App. 44

Order (Denying Petition for Rehearing en Banc),

United States Court of Appeals for the Tenth

Circuit (October 16, 2019) .............................. App. 46

TABLE OF AUTHORITIES

Page

CASES

Atain Specialty Ins. Co. v. Tribal Constr. Co., 912

F. Supp. 2d 1260 (W.D. Okla. 2012) ........................26

Cardoza v. United of Omaha Life Ins. Co., 708

F.3d 1196 (10th Cir. 2013) .......................................26

Correia v. Fitzgerald, 354 F.3d 47 (1st Cir. 2003) ........17

Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101 (1989) ........................................................ passim

Fulghum v. Embarq Corp., 778 F.3d 1147 (10th

Cir. 2015) .................................................................26

Gaunt v. John Hancock Mut. Life Ins. Co., 160

F.2d 599 (2d Cir. 1947) ............................................20

Graham v. Hartford Life & Accident Ins. Co., 589

F.3d 1345 (10th Cir. 2009) .......................................26

Harrison v. UNUM, 2005 U.S. Dist. LEXIS 6292

(D.N.H. Apr. 11, 2005) .............................................14

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432

(1999) ................................................................. 17, 27

Kellogg v. Metro Life Ins. Co., 549 F.3d 818 (10th

Cir. 2008) ..................................................... 23, 25, 26

Koon v. United States, 518 U.S. 81, 116 S. Ct.

2035, 135 L. Ed. 2d 392 (1996) ...............................17

Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534

(10th Cir. 1990).................................................. 16, 22

LaAsmar v. Phelps Dodge Corp. Life, 605 F.3d

789 (10th Cir. 2010) ........................................... 23, 26

TABLE OF AUTHORITIES—Continued

Page

Masella v. Blue Cross & Blue Shield of Conn.,

Inc., 936 F.2d 98 (2d Cir. 1991) ...............................25

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105

(2008) ..................................................... 10, 16, 23, 25

Miller v. Monumental Life Ins. Co., 502 F.3d

1245 (10th Cir. 2007) ....................... 10, 18, 22, 23, 25

Pierce v. Wyndham Vacation Resorts, Inc., 922

F.3d 741 (6th Cir. 2019) ...........................................17

Sledge v. Cont’l Cas. Co., 639 So. 2d 805 (La. Ct.

App. 1994) ................................................................12

Tourdot v. Rockford Health Plans, Inc., 357

F. Supp. 2d 1100 (W.D. Wis. 2005) ..........................12

U.S. v. Stitt, 139 S. Ct. 399 (2018) ..............................10

Van Riper v. Constitutional Gov’t League, 96

P.2d 588 (Wash. 1939) .............................................26

Varity Corp. v. Howe, 516 U.S. 489 (1996) ............. 27, 28

STATUTES

29 C.F.R. § 2520.102-2(b) .............................. 6, 7, 16, 25

29 C.F.R. § 2520.102-3(l) ................................... 6, 16, 25

29 C.F.R. § 2560-503-1(b) .................................. 8, 12, 13

29 C.F.R. § 2560-503-1(m)(8)(iv) ............................. 8, 12

28 U.S.C. § 1254(1) ........................................................2

28 U.S.C. § 1291 ............................................................2

28 U.S.C. § 1331 ........................................................ 1, 2

vii

TABLE OF AUTHORITIES—Continued

Page

28 U.S.C. § 1332 ........................................................ 1, 2

29 U.S.C. § 1001 ...................................................... 3, 16

29 U.S.C. § 1022(a) ........................................................2

29 U.S.C. § 1104 ............................................................4

29 U.S.C. § 1133(1) ........................................................5

WYO. STAT. ANN. § 31-5-1402(c) ..................................11

OTHER AUTHORITIES

RESTATEMENT (THIRD) OF TRUSTS § 77 (2012) .............12

TREATISES

JEFFREY E. THOMAS & FRANCIS J. MOOTZ, III,

APPLEMAN, ESSENTIALS OF INSURANCE LAW,

5.01-5.08 (LexisNexis, 2019) ............................. 19, 20

JEFFREY E. THOMAS & FRANCIS J. MOOTZ, III,

APPLEMAN, ESSENTIALS OF INSURANCE LAW, 5.5

(LexisNexis, 2019) ............................................. 15, 20

ROBERT E. KEETON & ALAN I. WIDISS, INSURANCE

LAW, A GUIDE TO FUNDAMENTAL PRINCIPLES,

LEGAL DOCTRINES AND COMMERCIAL PRACTICES

628–29 (West Pub., 1988).................................. 19, 20

PETITION FOR A WRIT OF CERTIORARI

Rick V. Caldwell and Sonya S. Caldwell petition for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Tenth Circuit in

this case.

------------------------------------------------------------------

OPINIONS BELOW

The Tenth Circuit’s opinion is reported at Caldwell v. Unum Life Ins. Co. of Am., 2019 U.S. App. LEXIS

28000 (10th Cir. 2019) and reproduced at App. 1–20.

The Tenth Circuit’s denial of petitioners’ motion for

reconsideration and rehearing en banc is reproduced

at App. 46. The opinions of the District Court for the

District of Wyoming are reproduced at App. 21 and

App. 44.

------------------------------------------------------------------

JURISDICTION

The United States District Court for the District

of Wyoming had subject matter jurisdiction pursuant

to 28 U.S.C. §§ 1331 and 1332. On September 21, 2017,

the District Court granted Appellee’s motion for summary judgment, dismissing Appellants’ claims. See

Doc. 76 [Order]; Doc. 77 [J. Civil Action]. Because the

District Court entered final judgment, this Court has

jurisdiction pursuant to 28 U.S.C. § 1291. Appellants’

timely filed their Notice of Appeal to the 10th Circuit

on October 19, 2017. See Doc. 78. This Petition for Writ

of Certiorari was timely filed within 90 days. This court

has jurisdiction under 28 U.S.C. § 1254(1).

------------------------------------------------------------------

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

28 U.S.C. § 1291 Final decisions of district courts:

The courts of appeals (other than the United

States Court of Appeals for the Federal Circuit) shall

have jurisdiction of appeals from all final decisions of

the district courts of the United States.

28 U.S.C. § 1331 Federal Question:

The district courts shall have original jurisdiction

of all civil actions arising under the Constitution, laws,

or treaties of the United States.

28 U.S.C. § 1332 Diversity of citizenship; amount in

controversy; costs:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of

interest and costs, and is between—

29 U.S.C. § 1022(a) Summary plan description:

(a) A summary plan description of any employee

benefit plan shall be furnished to participants and beneficiaries as provided in section 104(b) [29 U.S.C.S.

§ 1024(b)]. The summary plan description shall include

the information described in subsection (b), shall be

written in a manner calculated to be understood by the

average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such

participants and beneficiaries of their rights and obligations under the plan. A summary of any material

modification in the terms of the plan and any change

in the information required under subsection (b) shall

be written in a manner calculated to be understood by

the average plan participant and shall be furnished in accordance with section 104(b)(1) [29 U.S.C.S. § 1024(b)(1)].

29 U.S.C. § 1001: Congressional Findings and declaration of policy:

(a) Benefit plans as affecting interstate commerce and the Federal taxing power. The Congress

finds that the growth in size, scope, and numbers of

employee benefit plans in recent years has been rapid

and substantial; that the operational scope and economic impact of such plans is increasingly interstate;

that the continued well-being and security of millions

of employees and their dependents are directly affected by these plans; that they are affected with a national public interest; that they have become an

important factor affecting the stability of employment

and the successful development of industrial relations;

that they have become an important factor in commerce because of the interstate character of their activities, and of the activities of their participants, and

the employers, employee organizations, and other entities by which they are established or maintained;

that a large volume of the activities of such plans is

carried on by means of the mails and instrumentalities

of interstate commerce; that owing to the lack of employee information and adequate safeguards concerning their operation, it is desirable in the interests of

employees and their beneficiaries, and to provide for

the general welfare and the free flow of commerce, that

disclosure be made and safeguards be provided with

respect to the establishment, operation, and administration of such plans; that they substantially affect

the revenues of the United States because they are afforded preferential Federal tax treatment; that despite

the enormous growth in such plans many employees

with long years of employment are losing anticipated

retirement benefits owing to the lack of vesting provisions in such plans; that owing to the inadequacy of

current minimum standards, the soundness and stability of plans with respect to adequate funds to pay

promised benefits may be endangered; that owing to

the termination of plans before requisite funds have

been accumulated, employees and their beneficiaries

have been deprived of anticipated benefits; and that it

is therefore desirable in the interests of employees and

their beneficiaries, for the protection of the revenue of

the United States, and to provide for the free flow of

commerce, that minimum standards be provided assuring the equitable character of such plans and their

financial soundness.

29 U.S.C. § 1104 Fiduciary duties:

(a)

Prudent man standard of care.

(1) Subject to sections 403(c) and (d), 4042, and

4044 [29 U.S.C.S. §§ 1103(c), (d), 1342, 1344], a fiduciary

shall discharge his duties with respect to a plan solely

in the interest of the participants and beneficiaries

and—

(A)

for the exclusive purpose of:

(i) providing benefits to participants

and their beneficiaries; and

(ii) defraying reasonable expenses of administering the plan;

(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like

capacity and familiar with such matters

would use in the conduct of an enterprise of a

like character and with like aims;

plan so as to minimize the risk of large losses,

unless under the circumstances it is clearly

prudent not to do so; and

(D) in accordance with the documents and

instruments governing the plan insofar as

such documents and instruments are consistent with the provisions of this title and title IV.

29 U.S.C. § 1133(1) Claims procedure:

In accordance with regulations of the Secretary, every

employee benefit plan shall—

(1) provide adequate notice in writing to any

participant or beneficiary whose claim for

benefits under the plan has been denied,

setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and. . . .

29 C.F.R. § 2520.102-2(b) Style and format of summary

plan description:

(b) General format. The format of the summary

plan description must not have the effect to misleading, misinforming or failing to inform participants and

beneficiaries. Any description of exception, limitations,

reductions, and other restrictions of plan benefits shall

not be minimized, rendered obscure or otherwise made

to appear unimportant. Such exceptions, limitations,

reductions, or restrictions of plan benefits shall be described or summarized in a manner not less prominent

than the style, captions, printing type, and prominence

used to describe or summarize plan benefits. The advantages and disadvantages of the plan shall be presented without either exaggerating the benefits or

minimizing the limitations. The description or summary of restrictive plan provisions need not be disclosed in the summary plan description in close

conjunction with the description or summary of benefits, provided that adjacent to the benefit description

the page on which the restrictions are described is

noted.

29 C.F.R. § 2520.102-3(l) Contents of summary plan

description:

(1) For both pension and welfare benefit plans, a

statement clearly identifying circumstances which

may result in disqualification, ineligibility, or denial,

loss, forfeiture, suspension, offset, reduction, or recovery (e.g., by exercise of subrogation or reimbursement

rights) of any benefits that a participant or beneficiary

might otherwise reasonably expect the plan to provide

on the basis of the description of benefits required by

paragraphs (j) and (k) of this section. In addition to

other required information, plans must include a summary of any plan provisions governing the authority of

the plan sponsors or others to terminate the plan or

amend or eliminate benefits under the plan and the

circumstances, if any, under which the plan may be terminated or benefits may be amended or eliminated; a

summary of any plan provisions governing the benefits, rights and obligations of participants and beneficiaries under the plan 29 C.F.R. 2520.102-3 on

termination of the plan or amendment or elimination

of benefits under the plan, including, in the case of an

employee pension benefit plan, a summary of any provisions relating to the accrual and the vesting of pension benefits under the plan upon termination; and a

summary of any plan provisions governing the allocation and disposition of assets of the plan upon termination. Plans also shall include a summary of any

provisions that may result in the imposition of a fee or

charge on a participant or beneficiary, or on an individual account thereof, the payment of which is a condition to the receipt of benefits under the plan. The

foregoing summaries shall be disclosed in accordance

with the requirements under 29 C.F.R. 2520.102-2(b).

29 C.F.R. § 2560.503-1(b)(5) and (m)(8)(iv) Claims procedure:

(b) Obligation to establish and maintain reasonable claims procedures. Every employee benefit plan

shall establish and maintain reasonable procedures

governing the filing of benefit claims, notification of

benefit determinations, and appeal of adverse benefit

determinations (hereinafter collectively referred to as

claims procedures). The claims procedures for a plan

will be deemed to be reasonable only if—

(5) The claims procedures contain administrative processes and safeguards designed to ensure

and to verify that benefit claim determinations are

made in accordance with governing plan documents

and that, where appropriate, the plan provisions have

been applied consistently with respect to similarly situated claimants.

(m) Definitions. The following terms shall have

the meaning ascribed to such terms in this paragraph

(m) whenever such term is used in this section:

(8) A document, record, or other information

shall be considered “relevant” to a claimant’s claim if

such document, record, or other information—

(iv) In the case of a group health plan or

a plan providing disability benefits, constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the

claimant’s diagnosis, without regard to whether such

advice or statement was relied upon in making the

benefit determination.

------------------------------------------------------------------

STATEMENT OF THE CASE

William Caldwell purchased an accidental death

and dismemberment policy1 from UNUM through his

employer Sinclair Refinery. Will died in a one-car accident on a gravel road outside Rawlins, Wyoming. Will

was the only occupant. Rick and Sonya Caldwell, his

parents and beneficiaries, made a claim on the policy.

UNUM’s adjuster Tracy McKenzie denied the claim asserting Will was committing a crime when he died by

travelling too fast for conditions.

The Caldwells appealed the denial, UNUM ignored their arguments based on common law protections of insureds and maintained the denial because

speeding is a misdemeanor in Wyoming. Neither Ms.

McKenzie nor Ms. Legendre (who denied the Caldwells’ appeal) had any legal training and were not

instructed on the legal principles relevant to interpreting ERISA plans or insurance policies.

The Caldwells exhausted their administrative

remedies and filed suit in USDC Wyoming. This District Court affirmed UNUM’s denial and found the

term “crime” to be unambiguous. As such, the District

The Summary Plan Description provided by UNUM was

the Policy and Plan. 29 C.F.R. § 2520.102 speaks to the requirement for summary plan descriptions.

Court did not meaningfully address the concept of contra proferentem. The 10th Circuit affirmed summary

judgment in favor of UNUM, but acknowledged that in

light of this Court’s decision in U.S. v. Stitt, 139 S. Ct.

399, 405 (2018), it could not affirm the opinion based

on the District Court’s determination that the term

“crime” was unambiguous. With that caveat, the majority essentially rubber-stamped the District Court’s

order. Curiously, despite acknowledging the ambiguity

of the policy’s crime exclusion, the Circuit Court did

not discuss the issue of contra proferentem. It therefore refused to answer four of the five issues raised by

the Caldwells as well as the following important question:

If an unbiased, disinterested court undermines ERISA by construing policy terms

against a beneficiary, how can a court approve

the same decision made by a conflicted insurance company who owes a fiduciary duty of

loyalty to beneficiaries?2 The end result is

exactly the same. Surely, a fiduciary that undermines the purpose of ERISA acts unreasonably and abuses its discretion.3 Congress

did not intend a futile Act.

In Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1254

(10th Cir. 2007), the 10th Circuit held that it would undermine

the purposes of ERISA if it construed ambiguous policy terms

against the insured beneficiary.

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 133 (2008).

In reality, a court cannot answer this question

without admitting it is a slave to deference even where

the result is to undermine the purposes of ERISA.

A. The Accident

On June 28, 2015, Will died in a one-vehicle accident on County Road 605N, a gravel road southwest of

Rawlins. There were no other vehicles or witnesses

around. According to the initial police report, Will was

travelling at 61 MPH in a 30 MPH zone (the speed

limit was actually 55). No citation was issued, and the

investigator did not suspect drugs or alcohol. The report indicated Will drove too fast for conditions and

oversteered/overcorrected; yet, does not explain why

Will oversteered—whether it was to negotiate the

curve, avoid an antelope, or otherwise. Notably, Will

was not fleeing from a bank robbery or evading police

nor was he drunk, stoned, or at war.

B. The Policy

The Policy,4 which provides $250,000 of accidental

death coverage, excludes “accidental losses caused by,

contributed to by, or resulting from. . . . An attempt

to commit or commission of a crime.”5 “Crime” is not

defined. The Policy does not exclude coverage for

The Policy is actually a Summary Plan Description. There

is no separate Plan document.

Interestingly, the Policy pays an additional seatbelt benefit; although, not wearing a seatbelt is a “crime” per UNUM. WYO.

STAT. ANN. § 31-5-1402(c).

accidental death caused by “the insured’s negligence,”

“any violation of law,” “all traffic violations,” or “any act

classified as a misdemeanor in your state.”6

C. The Claims Manual

While “crime” is not defined in the Policy, it is discussed in UNUM’s Claims Manual.7 ERISA requires

insurers, like UNUM, to establish and maintain reasonable claims procedures. 29 C.F.R. § 2560.503-1(b).

These procedures must “contain administrative processes and safeguards designed to ensure and to verify that benefit claim determinations are made in

The Policy does not exclude coverage for illegal acts, but

some policies do. See Tourdot v. Rockford Health Plans, Inc., 357

F. Supp. 2d 1100, 1104 (W.D. Wis. 2005) (“Illegal acts is a simple

concept, referring to acts that the legislature has prohibited by

law.”); Sledge v. Cont’l Cas. Co., 639 So. 2d 805, 812–13 (La. Ct.

App. 1994) (“To read ‘an act . . . in violation of a law or ordinance’

to encompass all breaches of the Highway Regulatory Act . . .

would do considerable violence to the obvious intent of the parties

to the insurance contract before us, and, in the process, reduce

indemnity to a mere facade.” (emphasis added)).

The 10th Circuit majority refused to give any meaningful

consideration to the Claims Manual even though, ERISA requires

administrators to adopt and follow claims procedures, which

should assist in uniform application and enforcement. See 29

C.F.R. § 2560.503-1(m)(8)(iv). This was error since trust principles instruct “[W]hether a breach of trust has occurred depends

on the prudence or imprudence of the trustee’s conduct, not on the

eventual results. . . .” RESTATEMENT (THIRD) OF TRUSTS § 77

cmt. a (2012). UNUM’s failure to consider the Claims Manual was

a breach of trust. Further, as the dissent below recognized, it provided compelling evidence of UNUM’s intent regarding the meaning of the crime exclusion. Such extrinsic evidence was admissible

once the majority determined the crime exclusion was ambiguous.

accordance with governing plan documents and that,

where appropriate, the plan provisions have been

applied consistently. . . .” Id. § 2560.503-1(b)(5). Presumably, this is why UNUM developed a Claims Manual with a crime exclusion section. Yet, the claims

department never considered that guidance described

below.

Crime Exclusion—Policy

Our policies generally contain language that

excludes disabilities/losses arising out of

criminal activity. When administering a crime

exclusion, consider the following:

....

“Attempt to commit” or “commission” policy

language was intended to exclude disabilities/

losses which result from an activity that

would typically be classified as a crime (or

felony, depending on policy language) under

state or federal law.

“Attempt to commit” or “commission” policy

language was not intended to apply to activities which would generally be classified as

traffic violations.

We will generally exclude benefits on claims

where a disability/loss results from the claimant’s operating under the influence or driving

while intoxicated since these offenses are typically classified as crimes (or felonies, depending on the policy language).

The emphasized language does not reference state law

but discusses the general understanding of terms. The

exclusion was not intended to apply to traffic infractions. This evidences the drafters’ intent to give words

their generally understood meaning and not look to

specific state law.8

Nevertheless, UNUM wrote a final denial letter

that completely contradicted the Claims Manual, stating “Even if crime were classified as a violation or infraction (rather than a misdemeanor as it is under

Wyoming law), it would still be a crime.”

D. UNUM Actually Uses the Crime Exclusion

to Exclude All Claims Where Its Insured is

Negligent.

In a classic example of post-claim underwriting,

UNUM’s claims department has expanded “crime” to

include negligence; thereby significantly increasing

the number of accident claims denied and effectively

removing ALL single-vehicle accidents from coverage.

While the District Court forbid discovery designed to

flesh this topic out, we have one example.

In 2014, Tracy McKenzie paid an AD&D claim

where a Texas insured failed to yield to a tractor

trailer, was involved in an accident, and died. She was

criticized for missing that the insured was the driver

and she failed to obtain a toxicology screen. More

Compare Harrison v. UNUM, 2005 U.S. Dist. LEXIS 6292

(D.N.H. Apr. 11, 2005) where UNUM argued state law definitions

are irrelevant (there DUI was an infraction, not a misdemeanor).

importantly, she did not appreciate the insured was at

fault for failing to yield. When UNUM evaluated her

performance on that claim, she received a low score

because of these failures. This was just two months

before Will’s accident. Ms. McKenzie exercised sound

discretion in the Texas case by paying the claim where

the insured was involved in an accident. Yet, she was

chastised for not following UNUM’s unwritten internal

claims rule to deny all claims where the insured was

negligent and the negligence was a cause of the accident, among other things. Obviously, in traffic accidents,

negligence is determined by breaching some duty described in a state’s traffic statutes. She was sure not to

make the same “mistake” in the Caldwell claim.

------------------------------------------------------------------

ARGUMENT AND REASONS

FOR GRANTING THE WRIT

A. Summary of Argument

Prior to the adoption of ERISA, contra proferentem (or construing ambiguities against the drafter)

was the primary means by which courts protected the

rights of insurance policy holders. In particular, the

doctrine enforced the requirement that insurers draft

unambiguous policies in language that normal people

can understand. In fact, “contra proferentem has been

described as ‘the first principle of insurance law.’ ”9 In

1990, the 10th Circuit adopted it as part of the federal

JEFFREY E. THOMAS & FRANCIS J. MOOTZ, III, APPLEMAN,

ESSENTIALS OF INSURANCE LAW, § 5.5 (LexisNexis, 2019).

common law of ERISA explaining “Indeed, it would

take a certain degree of arrogance to controvert an

opinion held with such unanimity in the various states

and to adopt a contrary view as the federal rule.”10

Indeed, Congress did not repeal contra proferentem or any of the common law duties imposed on insurers when it enacted ERISA. To remove such protections would have been wholly inconsistent with its

stated objectives in 29 U.S.C. § 1001, which was summarized by this Court as “Congress’ desire to offer employees enhanced protection for their benefits.”11 As a

result, this court recognized in Firestone Tire & Rubber

Co. v. Bruch, 489 U.S. 101 (1989) that any standard or

policy that “afford[ed] less protection to employees and

their beneficiaries than they enjoyed before ERISA

was enacted” was inconsistent with congressional intent and could not stand. Id. at 114.

Nevertheless, lower courts have used the standard

as the basis to abrogate well-established common law

protections enjoyed by insureds. It is important to keep

in mind the two roles played by insurers in many

ERISA claims. As the insurance underwriter, the insurer drafts and sells the policy. In this role, insurers

owed various common law duties relating to the drafting of such policies. Breach of these duties was typically via contra proferentem.

Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 540

(10th Cir. 1990).

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 114 (2008). See

also 29 C.F.R. § 2520.102-2(b) and 102-3(l).

After ERISA some insurance adjusters also became so-called “claims fiduciaries” and, particularly after the Firestone decision, the insurance policies gave

these adjusters discretion to interpret policy terms.

But a grant of discretion cannot include license to ignore governing law, especially when the legal principle

at issue serves the same basic purpose as ERISA—to

protect insured beneficiaries’ rights. “A mistake of law,

it bears recalling, amounts to an abuse of discretion.”12

A claims fiduciary who ignores contra proferentem has,

by definition, abused her discretion. Yet, the Circuits

hold otherwise.

Lower courts simply overlook the instruction

about giving too much weight to trust principles and

deference. “Although trust law may offer a ‘starting

point’ for analysis in some situations, it must give way

if it is inconsistent with ‘the language of the statute,

its structure, or its purposes.’ ” Hughes Aircraft Co. v.

Jacobson, 525 U.S. 432, 447 (1999). This is not a unique

or novel concept.

No one seriously disputes that “Failure to employ

contra proferentem would ‘afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted, a result that would be at odds

with the congressional purposes of promoting the interests of employees and beneficiaries and protecting

See, e.g., Pierce v. Wyndham Vacation Resorts, Inc., 922

F.3d 741, 745 (6th Cir. 2019) (citing Koon v. United States, 518

U.S. 81, 100, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996)); Correia

v. Fitzgerald, 354 F.3d 47, 54 (1st Cir. 2003).

contractually defined benefits.’ ”13 Nevertheless, following Firestone, the lower courts decided that the concept

of Firestone deference meant they had to judicially abrogate the common law protections that protected the

rights of insureds in ERISA cases where the insurer

included a grant of deference in its policy. All of the

Circuits, with some limited exception in the 5th, now

find that the doctrine of contra proferentem is incompatible with deferential review even though it leaves

some ERISA beneficiaries with less protection than

they enjoyed before ERISA was enacted. Only this

Court can correct this grave error. This is especially

important where, as here, the policy was purchased by

the insured—not the employer.14

Incredibly, all of this has led to the point where

UNUM, reportedly the top disability insurer in both

the U.S. and U.K., actually argued in its 10th Circuit

brief that ERISA insurers do not have a legal duty to

draft unambiguous policies. As a result, from a very realistic standpoint, millions of American employees find

themselves in a position where an insurer can draft

Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1254

(10th Cir. 2007).

This further calls into question the reliance on trust principles in cases where the employer did not purchase the policy for

the employee or otherwise fund the benefit plan. This policy is

just a simple group insurance policy offered through the employer. If we try to pigeon hole this specific scenario into trust

principles, each participating employee is both the settlor and the

beneficiary, which makes no sense. Asking an insured to grant

the insurer discretion to abrogate important legal protections is

unconscionable on its face.

ambiguous policies, grant itself discretion to interpret

the policy terms, and then make a decision in its own

favor with near impunity.

And it has a real impact in this case and elsewhere. It is not far-fetched to suggest that in every

case, in every state and federal jurisdiction, an insured

would prevail on a claim with facts similar to those

here just so long as the policy at issue was not an

ERISA policy where the insurer had discretion to interpret policy terms. Surely Congress did not intend to

grant insurers such a disproportionate and unconscionable advantage over American employees.

Yet, that is exactly where many beneficiaries across

the country find themselves—less protection for their

benefits because of ERISA. Given the current state of

the law, only this Court can correct this injustice.

B. The Importance of Contra Proferentem, the

First Principle of Insurance Law.

For over a century, courts have faced the challenge

of how to interpret insurance policies and adequately

protect insureds from any unconscionable advantage

insurers may reap from drafting an extremely technical document that most people simply cannot understand.15 On one hand, an insurance policy is a contract

See generally ROBERT E. KEETON & ALAN I. WIDISS, INSUR-

ANCE LAW, A GUIDE TO FUNDAMENTAL PRINCIPLES, LEGAL DOCTRINES AND COMMERCIAL PRACTICES 628–29 (West Pub., 1988) and

JEFFREY E. THOMAS & FRANCIS J. MOOTZ, III, APPLEMAN, ESSENTIALS

OF INSURANCE LAW, § 5.01-5.08 (LexisNexis, 2019), Chapter 5.

such that a court’s goal should be to determine the intent of the parties from the four corners of the document. Early on, however, courts realized this approach

was insufficient as insureds generally do not have the

control, information, expertise, or knowledge to form

such intent.16 Moreover, insurance policies are rarely

negotiated and do not represent a meeting of the

minds. Rather, they “are almost always standardized

forms offered on a take-it-or-leave basis, an archetypal

example of an ‘adhesion contract.’ ”17 As a result, courts

developed a set of rules, duties and doctrines designed

to level the playing field.

Contra proferentem or construing ambiguities

against the drafter was “one of the first, and continues

to be one of the most widely used, approaches which

courts employ to ameliorate harsh effects that would

otherwise result from insurance policy terms.”18 “The

canon contra proferentem is more rigorously applied in

insurance than in other contracts in recognition of the

difference between the parties in their acquaintance

with the subject matter.”19 In insurance law, “it is used

as a primary rule (perhaps even the primary rule) of

interpretation for insurance policies.”20

JEFFREY E. THOMAS & FRANCIS J. MOOTZ, III, APPLEMAN,

ESSENTIALS OF INSURANCE LAW, § 5.5 (LexisNexis, 2019)

Id., supra, at § 5-4.

ROBERT E. KEETON & ALAN I. WIDISS, INSURANCE LAW, A

GUIDE TO FUNDAMENTAL PRINCIPLES, LEGAL DOCTRINES AND

COMMERCIAL PRACTICES 628–29 (West Pub., 1988).

Gaunt v. John Hancock Mut. Life Ins. Co., 160 F.2d 599,

602 (2d Cir. 1947).

APPLEMAN, supra § 5.02.

C. Courts Must Apply Contra Proferentem in

ERISA Cases to Fulfill Congress’ Intent to

Protect Beneficiaries’ Contractually Defined Benefits.

In 1990, the 10th Circuit explained that contra

proferentem should be applied in ERISA cases as well.

As we noted above, the contra proferentem

rule is followed in all fifty states and the District of Columbia, and with good reason. Insurance policies are almost always drafted by

specialists employed by the insurer. In light of

the drafters’ expertise and experience, the insurer should be expected to set forth any limitations on its liability clearly enough for a

common layperson to understand; if it fails to

do this, it should not be allowed to take advantage of the very ambiguities that it could

have prevented with greater diligence. Moreover, once the policy language has been

drafted, it is not usually subject to amendment by the insured, even if he sees an ambiguity; an insurer’s practice of forcing the

insured to guess and hope regarding the scope

of coverage requires that any doubts be resolved in favor of the party who has been

placed in such a predicament. Were we to

promulgate a federal rule, we would find these

common-sense rationales sound. Indeed, it

would take a certain degree of arrogance

to controvert an opinion held with such

unanimity in the various states and to

adopt a contrary view as the federal rule.

Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 540

(10th Cir. 1990) (emphasis added). Undoubtedly, similar passages can be found in other circuits. Seventeen

years later the 10th Circuit quoted this passage with

approval and further explained

Strictly construing ambiguities against the

drafter comports with our precedent. Our

court has never construed the ambiguities of

an ERISA plan against a beneficiary. Doing

so would undermine the policies underlying ERISA, which Congress enacted “to

promote the interests of employees and their

beneficiaries in employee benefit plans and to

protect contractually defined benefits.” ERISA

also gives significant benefits to providers by

preempting many “state law causes of action

. . . which threaten considerably greater liability than that allowed by ERISA.” In light of

the Act’s balancing of interests, “[a]ccuracy [in

drafting] is not a lot to ask. And it is especially

not a lot to ask in return for the protections

afforded by ERISA’s preemption of state law

causes of action.”

Failure to employ contra proferentem would

“afford less protection to employees and their

beneficiaries than they enjoyed before ERISA

was enacted, a result that would be at odds

with the congressional purposes of promoting

the interests of employees and beneficiaries

and protecting contractually defined benefits.”

Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1254

(10th Cir. 2007) (alterations in original) (citations

omitted). Simply put, “strictly construing ambiguous

terms presents ERISA providers with a clear alternative: draft plans that reasonable people can understand or pay for ambiguity.”21

Incredibly, despite the soundly reasoned and emphatic language of the Miller court, the 10th Circuit

(and others) somehow summoned the requisite degree

of “arrogance” to judicially abrogate the ‘first principle

of insurance law.’ Somehow, it became permissible to

afford less protection to some employees and their beneficiaries than they enjoyed before ERISA was enacted,

even though that result that was at odds with the Congressional purposes of promoting the interests of employees and beneficiaries and protecting contractually

defined benefits.

The Circuits who have judicially abrogated contra

proferentem in the name of deference do so via the misinterpretation and misapplication of this court’s decisions in Firestone22 and Glenn.23 Neither case instructs

the lower courts to abrogate this doctrine. Neither case

even suggests that the standard of review should

trump the substantive protections intended by Congress and provided for decades by the common law.

Rather, this Court provided guidance and caution

LaAsmar v. Phelps Dodge Corp. Life, 605 F.3d 789, 805

(10th Cir. 2010); see also Kellogg v. Metro Life Ins. Co., 549 F.3d

818, 829–30 (10th Cir. 2008). While Kellogg found procedural irregularities sufficient to employ de novo review in a case where

discretion was granted, the court did not have to resort to contra

proferentem to find for the beneficiary.

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989).

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).

that, if employed, should not have resulted in a situation where millions of ERISA insureds enjoy less protection that they did before ERISA was enacted.

D. Purposes of ERISA.

Congress enacted ERISA “ ‘to promote the interests of employees and their beneficiaries in employee

benefit plans’ and ‘to protect contractually defined benefits.’ ” Firestone, 489 U.S. at 113 (emphasis added) (citations omitted). Courts recognize other competing

policies to justify deference, including a desire to encourage employers to offer benefit plans and a need to

avoid complex review procedures, which also allows

employers to administer their own plans. While these

goals are laudable, the Glenn Court warned lower

courts not to overemphasize these considerations at

the expense of Congressional intent. “As to all three

taken together, we believe them outweighed by

‘Congress’ desire to offer employees enhanced

protection for their benefits.’ ” Glenn, 554 U.S. at

113 (citation omitted). These are important guiding

principles as courts develop ERISA common law, but

rarely followed by the lower courts where deference

typically eviscerates all other principles.

Obviously, Congress knew insurance law incorporated the doctrine of contra proferentem when it

adopted ERISA. There is nothing in the act that authorizes courts to discard this important principle. It

is the primary tool available to enforce the requirement to draft unambiguous policies, to use language

that can be understood by the reasonable insured, to

combat unconscionability and overreaching, and to

protect the reasonable expectations of the insured. 29

C.F.R. § 2520.102-3(l). In fact, Congress extended the

requirement to draft unambiguous terms to Summary

Plan Descriptions. 29 C.F.R. § 2520.102-2(b).24

Importantly, the Glenn Court25 recognized Congress wanted to enhance protections, not just maintain and enforce those already in place. This was not

new. Any standard or policy that “afford[ed] less protection to employees and their beneficiaries than they

enjoyed before ERISA was enacted” was inconsistent

with congressional intent and could not stand. Firestone, 489 U.S. at 114.

No one disputes that “Failure to employ contra

proferentem would ‘afford less protection to employees

and their beneficiaries than they enjoyed before

ERISA was enacted, a result that would be at odds

with the congressional purposes of promoting the interests of employees and beneficiaries and protecting

contractually defined benefits.’ ”26 Lower courts often

times pay lip service to various rules of interpretation, but only enforce them in de novo cases.27 Yet, the

These regulations on SPDs apply here since the SPD is the

policy.

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).

Miller, 502 F.3d at 1254 (quoting Masella v. Blue Cross &

Blue Shield of Conn., Inc., 936 F.2d 98, 107 (2d. Cir. 1991) (internal

quotation marks omitted)).

Insurance policies are also contracts, but because they are

adhesion contracts, the common law developed special rules to

offset the unequal bargaining power. Kellogg, 549 F.3d at 829–30.

lower courts routinely fail to enforce the doctrine when

reviewing for an abuse of discretion. What makes this

even more puzzling is that a mistake of law is tantamount to an abuse of discretion.28 Yet, in these cases,

discretion allows the insurer to ignore the law.

Congress knew the state of existing contract and

insurance law when it enacted ERISA. Congress

knew how the common law enforced failures to draft

Terms must be interpreted in the proper context. If a word has

two meanings, but only one satisfies the context requirement,

then the term is unambiguous and there is no need to strictly construe it against the drafter. See Atain Specialty Ins. Co. v. Tribal

Constr. Co., 912 F. Supp. 2d 1260, 1268 (W.D. Okla. 2012) (“The

test for ambiguity is whether the language ‘is susceptible to two

interpretations on its face . . . from the standpoint of a reasonably

prudent layperson, not from that of a lawyer.’ ” (emphasis added)

(alterations in original) (citations omitted)).

“These rules of construction apply equally to ERISA cases

governed by federal common law.” Kellogg, 549 F.3d at 830.

“[F]ederal common law—from pre-Erie diversity cases to present

day ERISA cases—focuses upon the expectations and intentions

of the insured.” Id. (alterations in original) (citation omitted).

“[T]he Supreme Court has directed us to interpret an ERISA plan

like any contract, by examining its language and determining the

intent of the parties to the contract.” Fulghum v. Embarq Corp.,

778 F.3d 1147, 1153–54 (10th Cir. 2015) (citation omitted).

One of the chief goals of accident insurance is to protect insureds from the effects of their own acts. Even if an accident results from the insured’s own fault, the insured still expects to

receive coverage. See LaAsmar, 605 F.3d at 811 (“The insurer assumes the risk of the insured’s negligence.”); Van Riper v. Constitutional Gov’t League, 96 P.2d 588, 591 (Wash. 1939).

See, e.g., Cardoza v. United of Omaha Life Ins. Co., 708

F.3d 1196, 1201–02 (10th Cir. 2013) (emphasis added) (quoting

Graham v. Hartford Life & Accident Ins. Co., 589 F.3d 1345, 1357

(10th Cir. 2009)).

unambiguous policies and did nothing to abolish these

protections in the ERISA text. Of course, that would be

an odd step to take when unequivocally trying to protect contractual rights. Nor did Congress mandate deferential review or even discuss the concept. Sensibly,

the protections that insureds enjoyed before ERISA

should be available to ALL employees and apply to

ALL plans.

E. The Standard of Review Cannot Undermine

the Purpose of ERISA.

Congress did not include a standard of review in

ERISA. See Firestone, 489 U.S. at 108–09. Because

Congress incorporated the language of trust law into

various sections of the Act, especially with respect to

fiduciary duties, the courts chose to borrow trust principles when deciding ERISA actions. Obviously, the development of the common law must bear in mind the

special nature and purpose of ERISA plans. See, e.g.,

Varity Corp. v. Howe, 516 U.S. 489, 497 (1996). “We also

recognize, however, that trust law does not tell the entire story. After all, ERISA’s standards and procedural

protections partly reflect a congressional determination that the common law of trusts did not offer completely satisfactory protection.” Varity, 516 U.S. at 497.

“Although trust law may offer a ‘starting point’ for

analysis in some situations, it must give way if it is inconsistent with ‘the language of the statute, its structure, or its purposes.’ ” Hughes Aircraft Co. v. Jacobson,

525 U.S. 432, 447 (1999).

Deferential review serves the following policy objectives, (1) avoid complex review proceedings,29 (2) a

desire not to deter employers from creating benefit

plans,30 and (3) ERISA’s provision that allows employers to administer their own plans, which implicates objectives such as predictability and consistency. Glenn,

554 U.S. at 113. While these objectives are important,

the Glenn Court also held, “[a]s to all three taken together, we believe them outweighed by ‘Congress’ desire to offer employees enhanced protection for their

benefits.’ ” Id. at 113–14 (quoting Varity, 516 U.S. at

497 (discussing “competing congressional purposes”

in enacting ERISA)). Simply put, “[w]e need not follow trust law principles where trust law is ‘inconsistent with the language of the statute, its structure,

or its purposes.’” Glenn, 554 U.S. at 113 (citation omitted).

What is puzzling is why courts treat discretionary

review as if it is the be-all-end-all of ERISA jurisprudence.

There is no evidence that applying insurance rules would

make review proceedings more complex nor would it require more

discovery since interpreting a contract is a question of law. If

anything, it would simplify the proceedings because insurers

would draft understandable policies in the first instance.

Logically, this is not an important factor when the relevant

portion of the plan is funded by employees who pay insurance premiums and benefits are paid by the insurer. In reality, this AD&D

policy is not at all different from any insurance policy except that

it is offered at the workplace.

F. The Many Differences Between Trusts and

Insurance Policies.

There are many differences between trust law and

insurance law. Consideration of these differences shows

that deferential review should not change the substantive law applicable to insurers and insurance policies.

1. Trusts are not a bargained for exchange, it does not require a meeting of the

minds, there is no mutual consideration, and

no reason for the beneficiaries to have a reasonable expectation of anything. Insurance

policies are governed by a wholly different set

of facts and circumstances.

2. Trust law does not impose a duty on

the settlor to draft unambiguous trusts. Insurance law imposed such a duty on insurers

before ERISA and still does. In fact, Congress

extended the requirement to Summary Plan

Descriptions.

3. Settlors are motivated to draft unambiguous trusts because they want the trust

proceeds to be distributed according to their

wishes. There is nothing to gain by using

ambiguous terms. Insurers may benefit from

ambiguities in the absence of contra

proferentem.

4. Trust documents are not interpreted

from the standpoint of the reasonable beneficiary. Insurance policies are interpreted in

accordance with the understanding a reasonable insured would give the terms.

5. Trust law is concerned with giving effect to the intent of the settlor. Contract law is

concerned with enforcing an agreement between two or more parties and, in cases involving insurance policies, protecting the

reasonable expectations of the insured.

6. Trust law is not concerned with unequal bargaining power between the settlor

and beneficiaries. As such, there is no need to

level the playing field. Insurance law is very

concerned.

7. Trust law does not construe ambiguous trust terms against the settlor, which

would undermine the law of trusts. Insurance

law does not construe ambiguous policy terms

against the insured, which would undermine

the law of insurance.

8. The trustee rarely, if ever, has the

burden of proof in a dispute between beneficiaries and the trustee over the operation of

the trust provisions. In insurance law, insureds must prove a loss falls within the insuring clause, but insurers must prove the

applicability of an exclusion. Plus, insuring

clauses are construed broadly and exclusions

are interpreted narrowly.

9. Settlors choose a trustee that they believe will distribute proceeds in accordance

with their wishes. They expect the trustee to

discharge her duties accordingly. They expect

the trustee to seek court guidance if there is

truly an ambiguous term. Insurers want the

freedom to interpret policy terms to their own

advantage. Contra proferentem has never

been popular among insurers.

10. Where the insured pays the insurance premium, the insured essentially becomes both the settlor and the beneficiary. In

reality, this is just another group insurance

policy. It is unclear how trust principles can or

should apply in such cases.

Simply put, while there is some overlap in trusts

and self-funded employee benefit plans, the difference

between a trust and an insurance policy is much more

pronounced. If beneficiary rights are to be protected,

the law governing insurance policies must remain intact. While this Court approved the continued use of

trust principles in ERISA insurance cases, it never

held the standard of review abrogated duties imposed

on insurers or rendered all insurance law inapplicable.

Indeed, Glenn reaffirmed the proposition that trust

law may not provide the answers in all situations and

that insurers are held to higher-than-marketplace

standards.

This does not mean deference must be abandoned

in cases involving insurance policies, but that a claims

administrator never has the discretion to ignore insurance law that provides protection for insured beneficiaries. There are still many aspects of the claims

review process, particularly with respect to fact finding, where deferential review may be appropriate.

Of course, it is unrealistic to expect any insurer to

construe ambiguous policy terms against itself. Rather,

acknowledging the need for contra proferentem will

again encourage ERISA insurers to draft unambiguous

policies. Additionally, knowing that contra proferentem

is available will encourage insurers to draft claims

manuals that explain to lay adjusters how terms are

intended to be interpreted. More importantly, it will

encourage claims departments to follow such guidance

when it is available. Making objectively fair claims decisions instead of post-claim underwriting should reduce rather than increase resulting litigation.

------------------------------------------------------------------

CONCLUSION

The common law recognized the need to protect

the rights of insureds long before Congress enacted

ERISA. The use of contra proferentem is perhaps the

most important tool in that regard. With the

knowledge of the existing protections for insureds afforded by the common law, Congress enacted ERISA

with a desire to not just preserve, but to enhance those

existing protections. For that reason, neither Congress

nor this Court has evidenced an intent to abrogate

contra proferentem and thereby leave some insured

beneficiaries with less protection than they enjoyed before ERISA. Yet, the Circuits have held otherwise and

approved claims decisions that undermine the purpose

of ERISA all in the name of deference. This works a

grave injustice on millions of beneficiaries and turns

ERISA into an Act that benefits only insurance companies at the expense of American workers. Because this

error has been so pervasive, only this Court can prevent further usurpation of Congressional intent.

For the foregoing reasons, the Court should grant

a writ of certiorari.

Dated: 14 January 2020.

Respectfully submitted,

RICHARD A. MINCER, #312073

HIRST APPLEGATE, LLP

1720 Carey Avenue, Suite 400

P. O. Box 1083

Cheyenne, WY 82003-1083

(307) 632-0541

rmincer@hirstapplegate.com

Attorney for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.