# Petition for Writ of Certiorari — Wickman v. Northwestern National Life Insurance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 1013

## Text

Oo i , Supreme Court, U.S, |
EILED
90-6 40 | OCT 1p ae
No. oan eae
—
In The ier

Supreme Court of the United States
October Term, 1990

Sd

MARY JANE WICKMAN,
Petitioner,

NORTHWESTERN NATIONAL LIFE
INSURANCE COMPANY,

Respondent.

>

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

+

RICHARD L. NEuMEIER*
JACQUELINE Y. PARKER

PARKER, COULTER, DALEY & WHITE
One Beacon Street

Boston, MA 02108

(617) 723-4500

Counsel for Petitioner

*Counsel of Record

eR ter ane oh aon
OR CALL COLLECT (402) 342

hens 5 stent Re:
Toe” gst ee ee

(1)

(2)

QUESTIONS PRESENTED

Where an employer purchases a group life insurance
policy providing accidental death benefits (with an
exclusion for suicide) does ERISA pre-empt a con-
tract claim for those benefits where the insurer failed
to provide the required §1133 notice and otherwise
made no effort to comply with ERISA or its regula-
tions?

Assuming ERISA applies, where the insurer refuses
to pay accidental death benefits because of the sui-
cide exclusion, should the federal common law in
construing the term “accident” ignore the state law
presumption as to suicide and the prima facie effect of
the death certificate, and adopt a new version of the
discredited accidental means/accidental result test?

ii

TABLE OF CONTENTS

Page
CH RePa OUD FIM EE? cave cccccesevcccsseseces i
PE CEN y E55 TS Boe Case R eee CUetcreueadveenbee 6 n.1
Gi bas cniempagrewrevevicesceabagyes 1
STATEMENT OF JURISDICTION...............---- 2
STATUTORY AND REGULATORY PROVISIONS
SRM Hea cc UR eda eNcsebhonensceeccesdvecacss 2
STATEMENT OF THE CASE. . 2... .sccccccccaceess 6
REASONS FOR GRANTING THE WRIT ..........- 10
SEPP PeT PTET) T PR cia PESTLE EL ERE eee 10
I. The Lower Courts Are In Conflict Concerning
When The Purchase Of An Insurance Policy Con-
stitutes The Establishment Of An ERISA Plan.. 10
II. By Creating A Middle Ground Between Suicide
And Accident, The First Circuit In Wickman Is In
Conflict With The Better Reasoned State Cases... 18
A. The Creation of a Never-Never-Land
Between Suicide and Accident Into Which
The First Circuit Placed Mary Jane’s Claim
Results In An Unworkable Rule........... 18
B. In Adjudicating Accidental Death Claims the
Federal Common Law Under ERISA Should
Follow the Majority-of States in (A) Adopting
the Presumption Against Suicide and (B)
According to Death Certificates Prima Facie
Evidence of the Facts Recorded............ 22

iii

TABLE OF CONTENTS - Continued
Page

C. The First Circuit’s Test for Accidental Death
Eliminates a Number of Claims Which the
Insurance Industry Contemplated Paying
and Thereby Results in a Windfall to the
ee . MEPTETTRT PLT eee 26

EEE ced hve adeuendsscogerccareesonecces 30
APPENDIX

A

Reported Opinion of the United States Court of
Appeals for the First Circuit, Wickman v. North-
western National Ins. Co., 908 F.2d 1077 (1st Cir.
SOU pend abeds + bens condncgesssenscugirsoes» 1a-28a

The Unreported Opinion of Magistrate Collings
Denying Mary Jane Wickman’s Claim for Acci-
dental Death Benefits. ..................-.-+. 1b-14b

The Unreported Opinion of Magistrate Collings
Finding that Mary Jane Wickman’s Contract
Action Was Pre-empted by ERISA............ 1c-19¢

Pe Oe a aa Fe oo chic ceesebesesses 1d-2d
ee Se Be ee I eine dcnedicdewediicesds le-14e

iv
TABLE OF AUTHORITIES

Cases

Allred v. Prudential Ins. Co., 100 S.E.2d 226 (N.C.
PE Sine a nocd bibs cas ele oe aa 20, 21

Bigelow v. Berkshire Life Ins. Co., 93 U.S. 284 (1876) .... 26

Bohaker v. Travelers Ins. Co., 102 N.E. 342 (Mass.
PN 6 6S os wes ea he) bo he obec cu Ga weedeneel ions 24

Canada Life Assurance Corp. v. Houston, 241 F.2d
9 . ee ere ro mae oe 25

Catania v. State Farm Life Ins. Co., 598 P.2d 631
eg OC TEE OEE TUOL ENTE Cer eC PET eee 27

Collins v. Nationwide Life Ins. Co., 294 N.W.2d 194
I SN oe anch sc bcdncdepecsesdedecsuesess acess 27

DePina v. General Dynamics Corp., 674 F. Supp. 46

ee EEO SI eee tL ere Pore 13
Dick v. New York Life Insurance Co., 359 U.S. 437, 79

DR, See Ss niin eed cp Wekashinee hndes thes 24, 25
Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.

| FN GREASE Gers eh pee lane REE ere ee 14
Dortch v. New York Life Insurance Company, 268 F.2d

SEP Se le SI Rev nsdn ected dad fevecsdeusscines 25
Eastern Commercial Travelers Acc. Ass'n v. Sanders,

ee eS FPP Te EET TTT TEE TEE 24
Erie v. Tompkins Railroad, 304 U.S. 64 (1938)......... 19

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.
ee SPP Or rer rer Tee 10, 11, 12, 16

ne PRN DN A Pact

-_ panda etd eh eR i cat

Vv

TABLE OF AUTHORITIES - Continued

Page
Hoffman v. Life Ins. Co., 669 P.2d 410 (Utah 1983).... 21
In re Volpe, 100 B.R. 840 (Bkrtcy. W.D. Tex. 1989) .... 13
Jordan v. Reliable Life Ins. Co., 694 F. Supp. 822
PO WEN Is sp ono nc sac dpeki sacs oreerones ess. 13
Kearbey v. Rel. L. Ins. Co. of Webster Groves, 526
a. Wee S66 Clo. App. 1975)... . 2... cdssccecscseses 27
Kennedy v. Washington National Ins. Co., 401
N.W.2d 842 (Wis. Ct. App. 1987)................-. 21
Knight v. Metropolitan Life Insurance Company, 437
Fie Ee I UE & nd es kag es vise web ee eedh dees 27
Koger v. Mutual Omaha Ins. Co., 163 S.E.2d 672 (W.
Ws akbb eco dn he tGuhes taeenced eh
OPINIONS BELOW

The reported opinion of the United States Court of
Appeals For The First Circuit, Mary Jane Wickman v.
Northwestern National Life Insurance Company (Wick-
man v. Northwestern Nat. Ins. Co., 908 F.2d 1077 (ist Cir.
1990)), affirming Magistrate Collings, is reproduced in
Appendix A (la-28a).

2

The unreported opinion of Magistrate Collings deny-
ing Mary Jane Wickman’s claim for accidental death ben-
efits is reproduced in Appendix B (1b-15b).

The unreported opinion of Magistrate Collings find-
ing that Mary Jane Wickman’s contract action was pre-
empted by ERISA is reproduced in Appendix C (1c-19c).

,%
er

STATEMENT OF JURISDICTION

The opinion of The United States Court of Appeals
For The First Circuit denying Mary Jane Wickman’s claim
for accidental death benefits was filed on July 20, 1990.
Jurisdiction of the Court is invoked pursuant to 28 U.S.C.
§1254(1) and Rules of This Court, Rules 10 and 14.

sa.
—

STATUTORY AND REGULATORY
PROVISIONS INVOLVED

The relevant part of ERISA, 29 U.S.C. §§1001 et seq.,
provides:

29 U.S.C. §1002(1) defines an “employee welfare
benefit plan” as including “any plan, fund, or
program which was heretofore or is hereafter
established or maintained by an a or by
an employee organization, or by , to the
extent that such plan, fund, or program was
established or is maintained for the purpose of
providing for its participants or their benefici-
aries, through the purchase of insurance or oth-
erwise, (A) medical, surgical, or hospital care or
benefits in the event of sickness, accident, dis-
ability, death or unemployment, or vacation

LS eer an Td Bl Sa RR A Us “

ee ee ee

3

benefits, apprenticeship or other training pro-
grams, or day care centers, scholarship funds, or
prepaid legal services, or (B) any benefit
described in section 186(c) of this title (other
than pensions on retirement or death, and insur-
ance to provide such pensions).”

(3) The term “employee benefit plan” or
“plan” means an employee welfare benefit plan
or an employee pension benefit plan or a plan
which is both an employee welfare benefit plan
and an employee pension benefit plan.

29 U.S.C. §1102 Establishment of plan:
(a) Named fiduciaries

(1) Every employee benefit plan shall be estab-
lished and maintained pursuant to a written
instrument. Such instrument shall provide for
one or more named fiduciaries who jointly or
severally shall have authority to control and
manage the operation and administration of the
plan.

(2) For purposes of this subchapter, the term
“named fiduciary” means a fiduciary who is
named in the plan instrument, or who, pursuant
to a procedure specified in the plan, is identified
as a fiduciary (A) by a person who is an
employer or employee organization with respect
to the plan or (B) by such an employer and such
an employee organization acting jointly.

(b) Requisite features of plan
Every employee benefit plan shall -

(1) provide a procedure for establishing and
carrying out a funding policy and method con-
sistent with the objectives of the plan and the
requirements of this subchapter,

4

(2) describe any procedure under the plan for
the allocation of responsibilities for the opera-
tion and administration of the plan (including
any procedure described in section 1105(c)(1) of
this title),

(3) provide a procedure for amending such
plan, and for identifying the persons who have
authority to amend the plan, and

(4) specify the basis on which payments are
made to and from the plan.

“81132. Civil enforcement.
(a) Persons empowered to bring civil action
A civil action may be brought -

(1) By a participant or beneficiary

(B) To recover benefits due him under the
terms of his plan, to enforce his rights
under the terms of the plan, or to clarify
his rights to future benefits under the
terms of the plan;

(3) By a participant, beneficiary, or fiduciary
(A) to enjoin any act or practice which vio-
lates any provision of this subchapter or
the terms of this plan, or (B) to obtain other
appropriate equitable relief (i) to redress
such violations or (ii) to enforce any provi-
sions of this subchapter or the terms of the
plan;” 29 U.S.C. §1132(A).

Section 1133 of ERISA provides:

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

5

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

(2) afford a reasonable sy eyo to any par-

ticipant whose claim for benefits has been
denied for a full and fair review by the
appropriate named fiduciary of the deci-
sion denying the claim.

The Secretary of Labor’s regulations provide:

A plan administrator or, if paragraph (c) of this
section is applicable, the insurance company,
insurance service, or other similar organiza-
tion, . . . shall provide to every claimant who is
denied a claim for benefits written notice setting
forth in a manner calculated to be understood
by the claimant:

(1) The specific reason or reasons for the
| denial;

(2) Specific reference to pertinent plan provi-
sions on which the denial is based;

(3) A description of any additional material or
information necessary for the claimant to
perfect the claim and an explanation of
why such material or information is neces-
sary; and

(4) Appropriate information as to the steps to
be taken if the participant or beneficiary
wishes to submit his or her claim for
review.

29 C.RR. §2560.503-1(£)(1989).

29 U.S.C. §1022 Plan Description and Summary Plan
Description (for full text, see Appendix D).

29 U.S.C. §1023 Annual Reports (for full text, see Appen-
dix E).

,%
vv

STATEMENT OF THE CASE

This case began as a diversity breach of contract
claim instituted by Mary Jane Wickman (Mary Jane) to
recover accidental death benefits due to her from North-
western Nationai Life Insurance Company (North-
western)! which had issued a group life insurance policy
to her husband Paul’s employer. Northwestern declined
to pay the benefits claiming that the cause of death of
Paul Wickman (Paul) was suicide and persisted in this
view despite being presented with the Amiended Death
Certificate, (which constituted prima facie evidence of the
cause of death under state law) which stated the “cause
of death” to be “massive internal hemorrhage secondary
to fracture — dislocation of pelvis - caused by 90 foot fall
from bridge.” (E. 7, P. Ex. 4).

Fourteen months after suit was instituted, North-
western moved to dismiss on the ground that the contract
action was preempted by the Employee Retirement
Income Security Act of 1974 (ERISA) relying upon Pilot .
Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S. Ct. 1549
(1987) and Metropolitan Life Insurance Company v. Taylor,
481 U.S. 58, 107 S. Ct. 1542 (1987). Despite the fact that
Northwestern expected claims under its contract? with

1 There is no parent or subsidiary company to be listed.

2 The group contract issued to Paul’s employer (Paul
received only a certificate - he never saw the group policy)
stated: “This group policy is delivered in the state of Connecti-
cut and is governed by its laws.” (A. 33).

Paul’s employer to be subject to state law and that the
supervisor who denied Mary Jane’s claim had no idea
that Northwestern was a fiduciary under ERISA, on Octo-
ber 22, 1987, the Magistrate granted the defendant's
motion to dismiss (see Appendix C for the text of the
opinion) and leave was granted to amend the complaint.
The amended complaint asserted a contract claim (Count
I) and also a claim under ERISA. Pursuant to its October
27, 1987 Memorandum (Appendix C), Magistrate Collings
dismissed Count I of the amended complaint.

With the consent of counsel the ERISA claim pro-
ceeded to a non-jury trial before him on February 8-11,
1988. More than twenty months later, Magistrate Collings
on October 23, 1989, entered Findings of Fact and Conclu-
sions of Law and judgment for the defendant. (See
Appendix B).

Ironically, although Northwestern asserted at trial
that it was a fiduciary under ERISA and that Mary Jane
could only proceed under ERISA, the Northwestern
Supervisor (Diane Yell (Yell)), who denied the claim,
stated that she was unaware of Northwestern’s fiduciary
duties under ERISA. Indeed, although she had heard of
the term ERISA, she did not know what it stood for. (3 Tr.
34). Yell also explained that in handling the Wickman
claim she was acting on behalf of Northwestern, and that
it never came to her attention that ERISA might apply to
the claim. (3 Tr. 30, 38, 40). Since Northwestern was
unaware of its fiduciary duties, it was also unaware of all
the regulations and other requirements of ERISA with
which it, of course, never complied. Moreover, North-
western never produced the written instrument required
by 29 U.S.C. §1102 for creation of an “employer benefit

ae

pian.” It is impossible to tell from the record whether or
not Northwestern’s insurance policy is even a part of an
“employee welfare benefit plan,” particularly when the
life insurance policy 1) does not “provide for one or more
named fiduciaries who jointly or severally shall have
authority to control and manage the operation and
administration of the plan,” 2) does not “provide a pro-
cedure for establishing and carrying out a funding policy
and method consistent with the objectives of the plan,” 3)
does not “describe any procedure under the plan for the
allocation of responsibilities for the operation and admin-
istration of the plan,” 4) does not “provide a procedure
for amending such plan and for identifying the persons
who have authority to amend the plan,” and fails to
comply with the 29 U.S.C. §1133 and 29 C.F.R. §2560.503-1
mandate for reviewing initially denied claims. Neverthe-
less, the Magistrate held that where there are periodic
premium payments by the employer, the mere purchase
of an insurance policy establishes an ERISA plan.
(Appendix C at 12c).

Although Northwestern had disclaimed on the basis
of suicide and agreed at trial that Paul’s death was either
accident or suicide, the Magistrate found it was neither
accident nor suicide because:

“ ... assuming that Mr. Wickman had no spe-

cific intent to injure or kill himself, the Court

finds that he intentionally put himself outside

the guard rail on the bridge over the railroad

tracks and, further, that the harm that befell him

was substantially certain to happen.” (Appendix
B at 11b).

Accordingly, the Magistrate ruled that Northwestern “has
neither breached its contract nor breached its fiduciary

~~

duties with respect to the denial of accidental death bene-
fits to Mrs. Wickman” (Appendix B at 13b) and therefore
entered judgment for the defendant. (Appendix B at 14b).

On appeal the United States Court of Appeals for the
First Circuit, although stating that the mere purchase of
an insurar e policy is insufficient, found that a “plan”
had been established because the purchase of the insur-
ance policy constituted “an expressed intention by the
employer to provide benefits on a regular and long term
basis.” (Appendix A at 11a). In determining what stan-
dard the federal common law under ERISA should adopt,
the First Circuit rejected the parties’ agreement at trial
that Paul’s death was due to accident or suicide. Instead,
while eschewing the accidental means/accidental results
distinction criticized by Justice Cardozo in Landress v.
Phoenix Mutual Life Ins. Co., 291 U.S. 491, 499 (1934), the
First Circuit relied on jurisdictions which still follow this
discredited rationale to formulate a new version. The
First Circuit created a dual test. A subjective test of the
“reasonable expectation of the insured” should be
applied. However, “if the fact-finder, in attempting to
ascertain the insured’s actual expectation, finds the evi-
dence insufficient to accurately determine the insured’s
subjective expectation, the fact-finder should then engage
in an objective analysis of the insured’s expectations.”
(Appendix A at 25a). The First Circuit also noted that
“[blecause the magistrate decided there was no accident
in this case, and we affirm on this basis, he did not and
we need not reach the question of whether Wickman’s
death was actually a suicide,” (Appendix A at 25a n.5)

10

thereby apparently creating an unprecedented middle
ground? between accident and suicide for ERISA claims.

+

REASONS FOR GRANTING THE WRIT

The question of when an insurance company should
be protected by ERISA from a garden variety life insur-
ance contract claim under state law is an important ques-
tion of federal law which has not been, but should be,
settled by this Court. The lower courts are in conflict
concerning when the purchase of an insurance policy
constitutes establishment of an ERISA plan. Even if the
“plan” in the case at bar is sufficient to warrant preemp-
tion, according to the First Circuit Court of Appeals the
case “presents a question of first impression under the
Act [ERISA] concerning the interpretation of life insur-
ance contracts.” (Appendix A at 1a).

*-

ARGUMENT

I. The Lower Courts Are In Conflict Concerning When
The Purchase Of An Insurance Policy Constitutes
The Establishment Of An ERISA Plan.

In Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.
Ct. 2211 (1987) this Court concluded that an evaluation of
both the express terms of ERISA and the legislative intent

3 Since Paul obviously did not die of natural causes, the
judicial determination that death did not occur through acci-
dent or suicide leaves the actual cause of death somewhat of a
mystery.

11

shows that ERISA only preempts state laws relating to
employee benefit plans, and not state laws merely relating
to employee benefits. This Court further explained that
ERISA was enacted to require disclosure and provide
safeguards with respect to the establishment, operation,
and administration of employee benefit plans; to prevent
abuses of the special responsibilities borne by those deal-
ing with the plans; and to prevent self-dealing, impru-
dent investing, and misappropriation of plan funds.
According to Fort Halifax, since the focus of the statute is
on the administrative integrity of benefit plans, it pre-
sumes some type of administrative activity is taking
place. Thus, this Court concluded that only “plans”
involving administrative activity potentially subject to
employer abuse are subject to ERISA preemption:

“Statements by ERISA’s sponsors in the
House and Senate clearly disclose the problem
that the preemption provision was intended to
address.” Id., __ U.S. __, 107 S. Ct. at 2216.

“These statements reflect recognition of the
administrative realities of employee benefit
plans. An employer that makes a commitment
systematically to pay certain benefits under-
takes a host of obligations, such as determining
the eligibility of claimants, calculating benefit
levels, making disbursements, monitoring the
availability of funds for benefit payments, and
keeping appropriate records in order to comply
with applicable reporting requirements.” Id., __
U.S. __, 107 S. Ct. at 2216. (emphasis added).

Clearly, when an employer has merely purchased an
insurance policy, it has relieved itself of a need to deter-
mine eligibility, calculate benefits, make disbursements,

12

monitor the availability of funds, or keep records to com-
ply with reporting requirements. Fort Halifax, 482 U.S. at
9, 107 S. Ct. at 2216. Hence the reason behind preemption
of having uniform regulation of the administration of
employee benefit plans disappears when the employer’s
sole role is to send a premium to an insurance company,
at least where the insurer fails to comply with ERISA
regulations or otherwise act as if ERISA applied. The
safeguards imposed by ERISA are worthless and the
insurance company gets the benefit of ERISA’s limited
remedies without taking on any of ERISA’s respon-
sibilities. See Fort Halifax:

“The third answer to appellant’s argument
is that the Maine statute not only fails to impli-
cate the concerns of ERISA’s preemption provi-
sion, it fails to implicate the regulatory concerns
of ERISA itself. The Congressional declaration of
policy, codified at 29 U.S.C. §1001, states that
ERISA was enacted because Congress found it
desirable that disclosure be made and safeguards
be provided with respect to the establishment,
operation, and administration of [employee ben-
efit) plans.” §1001(a). Id., 482 U.S. 15, 107 S. Ct.
at 2219 (emphasis added).

Since Pilot Life, the federal courts have been greeted
with the unseemly spectacle of insurance companies
seeking the protection of ERISA preemption against state
law claims. (In Pilot Life the parties assumed that an
ERISA plan existed and this court had no occasion to
decide the circumstances under which the purchase of a
group policy should be deemed to establish an ERISA
plan). The concern of Congress in enacting ERISA was

13

not to protect insurers against state law claims (espe-
cially, as here, contract claims which they fully antici-
pated), but rather to protect employees and their
beneficiaries. The lower courts have expressed concern at
this anomalous development. See e.g., Jordan v. Reliable
Life Ins. Co., 694 F. Supp. 822, 835 (N.D. Ala. 1988) (“Only
Congress or the Supreme Court can rescue us from the
[ERISA] quicksand”) and In re Volpe, 100 B.R. 840, 842
(Bkrtcy. W.D. Tex. 1989) (same).

The lower courts are in conflict concerning when an
employer’s purchase of group insurance is a sufficient
ERISA plan to trigger preemption. See e.g. Rizzi v. Blue
Cross of So. California, 206 Cal. App. 3d 380, 393-394, 253
Cal. Rptr. 541, 550 (1988), cert. denied 110 S. Ct. 78 (1989)
(“The court [in Pilot Life] reasoned that the civil enforce-
ment scheme (§1132, subd. (a) was one of the essential
tools for accomplishing ERISA’s stated purposes, along
with the provision requiring every employee benefit plan
to give notice to a beneficiary whose claim has been
denied and an opportunity for review (§1133), and a
provision authorizing criminal penalties for violations of
reporting and disclosure provisions (§1131).”) and DePina
v. General Dynamics Corp., 674 F. Supp. 46 (D. Mass. 1987)
(ERISA regulations require written notice to a participant
or beneficiary whose claim for benefits under a plan have
been denied and a reasonable opportunity for full and
fair review of the decision denying the claim). Here not
only did the insurer fail to provide any notice to the
beneficiary of an opportunity to review denial of her
claim, but also the person denying the claim did not even
know that she was acting in a fiduciary capacity. Indeed,
Northwestern’s Supervisor did not even know what the

14

term “ERISA” stood for and despite Northwestern’s
claim at trial that she was acting as a fiduciary she stated
that she was acting on behalf of Northwestern. (3 Tr. 34,
38). It had never even come to her attention that ERISA
might apply to the claim! (3 Tr. 30, 38, 40).

Nevertheless, the First Circuit held that

“(t]he crucial factor in determining if a ‘plan’
has been established is whether the purchase of
the insurance policy constituted an expressed
intention by the employer to provide benefits on
a regular and long term basis.” (Appendix A at
11a).

Although there was no evidence of a contract between
Paul’s employer and its employees requiring the
employer to purchase life insurance on behalf of the
employees, the First Circuit found indicia of long term
intent despite the fact that group life insurance is pur-
chased on an annual basis. The First Circuit also relied on
the Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir.
1982) standard that the employee be able to ascertain the
procedures for receiving benefits. Since all insurance pol-
icies contain a procedure for receiving benefits, this test is
unhelpful for distinguishing between situations in which
the mere purchase of insurance is insufficient to establish
a “plan” and those in which it is.

No satisfactory test has been formulated by the lower
courts for determining when a purchase of insurance by
an employer establishes a “plan”. Indeed, there is much
confusion and conflict on this question. For example, in
Rizzi v. Blue Cross of So. California, 206 Cal. App. 3d 380,
253 Cal. Rptr. 541 (1988), cert. denied, 110 S. Ct. 78 (1989)
the California Court of Appeals stated:

15

“We note that although the department of
Labor regulation states an ERISA plan does not
exist if, inter alia, no contributions are 1. .de by
the employer, it does not necessarily folluw that
if an employer does make contributions, a =
automatically exists. In 29 Code of Federal Reg-
ulations section 2510.3-1(a)(4), the Department
of Labor qualifies its regulation by stating,
‘[slome of the practices listed in this section as
excluded from the definition of ‘welfare plan’ as
mentioned as examples of general categories of
excluded practices are inserted in response to
questions received by the Department of Labor
and, in the Department’s judgment, do not rep-
resent borderline cases under the definition in
section 3(1) [§1002, subd. (1)] of the Act. There-
fore, this section should not be read as implicitl
indicating the rtment’s views on the possible
scope of section 3(1).’ (Italics added).” 206 Cal.
App. 3d at 388 n.8, 253 Cal. Rptr. at 546 n.8.

Where the employer was not actively involved in the
administration of the plan, a California Appeals Court in
Sayble v. Blue Cross of Southern California, 208 Cal. App. 3d
991, 256 Cal. Rptr. 820 (Cal. App. 1989) held that an
employer-provided group health insurance plan was not
governed by ERISA. In Sayble, the insured’s employer
paid premiums to a trust to obtain coverage for its
employees under the Blue Cross plan, however, as in the
case at bar, the employer had no express agreement with
its employees to provide such coverage. The insured sued
Blue Cross and an independent company hired by Blue
Cross to provide administrative services in connection
with the policy. The trial court entered summary judg-
ment against the insured, ruling that ERISA preempted
the insured’s suit.

sh eeeeemmeetill

16

In reversing, the California appellate court concluded
that the insured’s employer had not established an
“employee benefit plan” subject to ERISA’s preemption
provisions. The court concluded that the mere payment of

premiums by an employer is not sufficient to give rise to
an ERISA plan.

The court reasoned:

“It is manifest that Swiss American did not
administer the subject health program, and its
role was essentially limited to paying the policy
premiums. Again, the United States Supreme
Court stated in Fort Halifax Packing Co. v. Coyne,
supra, 482 U.S. at page 12: “To do little more than
write a check hardly constitutes the operation of
a benefit plan. [Fn. omitted.]’

Admittedly, Fort Halifax is distinguishable
in that only a single set of severance payments
was involved, while here, Swiss American regu-
larly paid premiums over a period of years.
However, Swiss American did not undertake
administrative responsibilities ‘such as deter-
mining the eligibility of claimants, calculating
benefit levels, making disbursements, mon-
itoring the availability of funds for benefit pay-
ments, and keeping appropriate records in order
to comply with applicable reporting require-
ments.’ (Id., at p. 9, 107 S. Ct. at p. 2216, 96 L.
Ed. at p. 10.)

Due to the lack of participation by Swiss
American in the administration of the subject
insurance benefit, the regulatory concerns of
ERISA are not implicated.” Id. at 825 (footnotes
omitted).

In short, in this view, ERISA’s regulatory concerns
are not implicated when an employer merely makes pre-
mium payments to an insurance company without being

17

in a position to engage in self-dealing, make imprudent
investments, or misappropriate funds.

A similar conclusion was reached by the Supreme
Court of Nevada in Turnbow v. Pacific Mutual Life Insur-
ance Company, 765 P.2d 1160 (Nev. 1988), cert. denied, 109
S. Ct. 2458 (1989) but on different reasoning. Turnbow
involved an employer who purchased a health insurance
policy for herself and her employees through a multiple
employer trust. After the plaintiff suffered a stroke, the
insurer paid her claim for policy benefits. However, the
insurer raised her premiums until she could no longer
make the payments and she lost her benefits. Plaintiff
sued the insurer for breach of contract, insurance bad
faith, violation of NRS 686A.010, infliction of emotional
distress, and punitive damages. The trial court granted
the insurer’s motion to dismiss on the ground that plain-
tiff’s sole remedy was under ERISA. In reversing, the
Nevada Supreme Court ruled that no ERISA employee
benefit plan was created:

“ERISA does not regulate the bare purchases of

health insurance where, as here, there is ‘no

indication’ that the employer intended to guar-

antee the continued furnishing of the benefits.”
Id. at 1161.

In the case at bar, the insurer failed to produce any
contract between the employees and the employer oblig-
ating the employer to purchase life insurance.

Mary Jane respectfully submits that before an insurer
may invoke the shield of ERISA to preempt state law
remedies it must prove not only that it sold a group
policy to an employer but also that it has at least
attempted to comply with applicable ERISA regulations.

18

II. By Creating A Middle Ground Between Suicide
And Accident, The First Circuit In Wickman Is In
Conflict With The Better Reasoned State Cases.

According to the American Council of Life Insurance,
1988 Life Insurance Fact Book at 32, 69,394,000 people are
insured by group life insurance policies paid for by the
employer. The 1988 Life Insurance Fact Book at 44 indi-
cates that $275 million dollars of accidental death pay-
ments were made during 1987. There are no statistics
available on how many dollars worth of accidental bene-
fit claims are made but denied by the insurer, but it is
clear that the First Circuit’s ruling on the standard for
proving accidental death in ERISA covered policies will
affect many millions of insurance dollars that will not be
paid to beneficiaries under the newly created federal
common law than would have been made under the law
of the individual states, thereby providing the insurance
companies with a windfall of unknown dimensions.

A. The Creation of a Never-Never-Land Between
Suicide and Accident Into Which the First Cir-
cuit Placed Mary Jane’s Claim Results in an
Unworkable Rule

The United States Supreme Court in the landmark
case of Landress v. Phoenix Mutual Life Ins. Co., 291 US.
491 (1934) applied a means/result distinction and deter-
mined that a man who died of heat stroke while golfing
had not died of accidental means. The Court reasoned
that because the insured had intentionally played golf
and exposed himself to the hot sun for a long period of
time, the means of his death, overexposure to the sun,

19

was not accidental.* Justice Cardozo dissented, arguing
that the distinction was artificial and unworkable and
warned that adherence to the distinction would “plunge
this branch of the law into a Serbonian Bog.” Id. at 499.
The First Circuit recognized that “Time has borne out
Cardozo’s prediction” and acknowledged that “[I]n
recent years courts consistently have rejected the distinc-
tion between accidental means and accidental results.”
(Appendix A, 18a, 19a). Unfortunately, the First Circuit
then turned to three Russian roulette cases (Appendix A,
22a) from jurisdictions (Georgia, Tennessee, and West
Virginia) which still follow the discredited accidental
means/results distinction. Then the court formulated a
“new” test which is no better nor more workable than the
old one because it creates an unprecedented nether world
between “accident” and “suicide,” by placing reckless
acts, which have traditionally been categorized as acci-
dents (see citations infra at 27-29) into the category of
non-accident. (See Appendix A at 25a n.5).

Yell, Northwestern’s Supervisor, testified at trial that
her review of the file indicated that this case “was going
to come down to being either an accident or suicide.” (3
Tr. 15). The December 12, 1985 denial letter specifically
stated:

“Because the Accidental Death provision of the
policy excludes payment of benefits for suicide,
we do not believe Accidental Death Benefits are
payable.” (E. 97).

Hence, even Northwestern recognized that there
were only two possibilities: either accident or suicide.

4 Landress preceded Erie v. Tompkins Railroad, 304 U.S. 64
(1938), and, thus, is no longer binding as federal common law.

20

The creation of a third category “non-accident” for deaths
related to an insured’s reckless behavior will plunge
ERISA into a “Serbonian Bog”.

As noted above, despite the First Circuit’s repudia-
tion of the accidental means/accidental result distinction,
the primary cases it relied on in denying Mary Jane’s
claim are discredited “accidental means” cases. See e.g.
Nicholas v. Provident Life & Acc. Ins. Co., 457 S.W.2d 536,
540 (Tenn. Ct. App. 1970) (First Circuit’s Opinion Appen-
dix A at 22a) (“The determinative question which con-
fronts us here is whether or not there is any material
evidence in the case from which reasonable persons could
conclude that the decedent’s death resulted from ‘acci-
dental means’ as used in the insuring clause of the policy
in question.”); Koger v. Mutual Omaha Ins. Co., 163 S.E.2d
672, 675 (W. Va. 1968) (First Circuit Decision, Appendix A
at 22a) “”... we think the plaintiff failed to establish that
the insured’s death was effected by accidental means
within the meaning of that term in the policies of insur-
ance ...”); Thompson v. Prudential Ins. Co., 66 S.E.2d 119,
124 (Ga. App. 1951) (First Circuit Decision at 22a) (“We
think the plaintiff failed to establish that the insured’s
death was effected by accidental means within the mean-
ing of that term in the policies”); and Allred v. Prudential
Ins. Co., 100 S.E.2d 226, 227, 230 (N.C. 1957) (First Circuit
Decision Appendix A at 23a) (relying on accidental
means cases and citing Thompson as approving and apply-
ing “accidental means” as referring to the occurrence or
happening which produced the result, rather than the
result. Id. at 230). Indeed, under a non-accidental means
analysis there would have been recovery in Allred as the

21

14-year-old stated to his friends that he laid down length-
wise on the white center line of the highway to “show
you all how brave I am.” Id. at 228.

Moreover, the First Circuit’s reliance on Kennedy v.
Washington National Ins. Co., 401 N.W.2d 842, 846 (Wis. Ct.
App. 1987) (First Circuit opinion Appendix A at 23a) is
misplaced because in Kennedy the beneficiary recovered
and the next line of the quotation is “However, the inten-
tional or unnecessary exposure to risks, as well as the
negligent creation of risks to one’s own safety, does not
prevent the result from being accidental.” Id.). Similarly,
the First Circuit’s reliance on Hoffman v. Life Ins. Co., 669
P.2d 410, 419 (Utah 1983) (First Circuit Opinion Appendix
A at 23a) is misplaced because the court also stated
“Many cases have held that the term ‘accident’ in liability
insurance contracts includes results recklessly caused by
the insured.” Id. at 417, n.3. Likewise, the beneficiary
recovered in New York Life Ins. Co. v. Harrington, 299 F.2d
803 (9th Cir. 1962) (First Circuit Decision at 24a), and
Ward v. Penn Mutual Life Ins. Co., 352 S.W.2d 413, 423 (Mo.
Ct. App. 1961) (First Circuit Decision Appendix A at 24a)
and the remainder of the cases relied on by the First
Circuit. (Appendix A pp. 23a-24a). Indeed, no reckless-
ness case in which the beneficiary is denied benefits is
ever cited by the First Circuit other than the “accidental
means” cases distinguished above (all of which, except
Allred, involved Russian Roulette).

Hence, the unprecedented decision of the First Cir-
cuit will plunge accidental death litigation under ERISA
into a “Serbonian Bog.”

22

B. In Adjudicating Accidental Death Claims the
Federal Common Law Under ERISA Should
Follow the Majority of States in (A) Adopting
the Presumption Against Suicide and (B)
According to Death Certificates Prima Facie
Evidence of the Facts Recorded.

The First Circuit’s decision states:

“Because the magistrate decided there was no
accident in this case, and we affirm on this basis,
he did not and we need not reach the question
of whether Wickman’s death was actually a sui-
cide. The failure to reach this issue makes the
presumption relating to the death certificate and
the presumption against suicide, relied upon
extensively by the plaintiff, irrelevant.” (See
Appendix A at 25a n.5).

The First Circuit’s error in failing to recognize that
this claim involved either suicide or accident was dis-
cussed supra at 19. In determining whether death is acci-
dental, the federal common law should accord to death
certificates the prima facie evidence of the facts recorded
and should adopt the presumption against suicide.

1. The Federal Rules of Evidence specifically defer
to state law on presumptions. See F.R.E. Rule 302; Pollard
v. Metropolitan Life Insurance Co., 598 F.2d 1284, 1286 (3d
Cir. 1979), cert. denied 100 S. Ct. 232, 444 U.S. 917 (1980).
Although Rule 302 refers to “a presumption respecting a
fact which is an element of a claim or defense as to which
state law supplies the rule of decision” the Advisory
Committee note to this rule observes that it is not limited
to “diversity cases” and that it has been specifically
applied to the burden of proof involving the “non-acci-
dental death (suicide) of an insured.” Following the rule

23

that”... it is proper. . . to look to state law in fashioning
a federal common law rule, as long as the state law is
consistent with the purposes underlying ERISA” Tesch v.
General Motors Corp., 724 F. Supp. 1251, 1253 (E.D. Wis.
1989), the Tesch court looked to a Wisconsin statute to
determine the validity of a change in beneficiary on a life
policy. It seems but a short, logical step to look to the
applicable state statute governing the legal significance of
ceath certificates.

M.G.L. c. 46, § 19 provides in pertinent part:

“The record of the town clerk relative to birth,
marriage or death shall be prima facie evidence
of the facts recorded, but nothing contained in
the record of a death which has reference to the
question of liability for causing the death shall
be admissible in evidence.”

Massachusetts law creates a presumption that a death
certificate is prima facie evidence of the facts reported.
Accordingly, a death certificate determines a verdict if
there is no controverted evidence provided. See Shamlian
v. Equitable Acc. Co., 115 N.E. 46 (Mass. 1917). The statu-
tory language “evidence of the fact recorded” has been
interpreted to include the coroner’s opinion as to the
cause of death. Id. at 48. Accord Lydon v. Boston Elevated
Ry., 34 N.E.2d 642, 647 (Mass. 1941) (“In the certificate of
death under the heading, ‘Disease or Causes of Death
(Primary or Secondary)’ the following appears: . . . unless
there is other evidence to control, the facts therein stated
must be taken as true.”)

Thus, the corrected death certificate’s statement in
the instant case as “cause of death” to be “Massive inter-
nal hemorrhage secondary to fracture - dislocation of

24

pelvis - caused by 90 foot fall from bridge” (E. 7; P. Ex. 4)
is prima facie evidence that death occurred by accident
since no reasonable interpretation of this language per-
mits an inference that death was occasioned by natural
causes and, as discussed below, there is a presumption
against death by suicide.

2. In Massachusetts, and generally elsewhere, there
is a presumption against death caused by suicide. See,
e.g., Nicholas v. Commercial Travelers Eastern Accident
Assoc., 109 N.E. 449, 451 (Mass. 1915) (insured fell out of
window of pullman sleeping car, court held that there
was a presumption that the death resulted from an acci-
dent); Silva v. The Fidelity & Casualty Co., 147 N.E. 858, 859
(Mass. 1925) (drowning; “[vJoluntary self-destruction is
contrary to the common conduct of mankind. It is a crime
involving a high degree of moral turpitude. It is not
assumed without clear proof”), Eastern Commercial Trav-
elers Acc. Ass'n v. Sanders, 108 F.2d 643, 645 (1st Cir. 1940)
(drowning; “ ‘The presumption is that one does not com-
mit suicide.’ This presumption has a logical foundation
derived from human experience”), and Bohaker v. Travelers
Inc. Co., 102 N.E. 342, 344 (Mass. 1913) (fall out of win-
dow through covered screen; “The presumption is that
one does not commit suicide”).

Outside Massachusetts see, e.g., Dick v. New York Life
Insurance Co., 359 U.S. 437, 444, 79 S. Ct. 921, 925 (1959)
(experienced hunter shot twice by shotgun; “Under
[North Dakota] law . . . a presumption arises that death
was accidental”),5 and Shtevelan v. Metropolitan Life Ins.

5 In sustaining the jury verdict for the beneficiary the
Supreme Court noted that, as with the evidence presented in

(Continued on following page)

25

Co., 295 N.Y.S. 735 (1937), aff'd without opinion, 7
N.Y.S.2d 767 (App. Div.' 1938) in which there were no
witnesses to the insured’s forty foot fall from his hospital
room which occurred two days after he was diagnosed as
having incurable cancer. (The court ruled that in the
absence of any evidence showing that insured had a
motive for suicide the plaintiff had prima facie case for
death by accident). Also see Canada Life Assurance Corp. v.
Houston, 241 F.2d 523, 531-532 (9th Cir. 1957) (self inflic-
ted gunshot wound - presumption against suicide not
overcome) and Dortch v. New York Life Insurance Company,
268 F.2d 149, 155 (9th Cir. 1959) (same).

The presumption against suicide and the prima facie
effect of the corrected death certificate meant that as soon
as Mary Jane read Northwestern’s responses to her
request for admissions and offered the relevant exhibits
(1 Tr. 2-6 and E. 1-18; P. Exs. 1-7) she had presented the
prima facie case for accidental death benefits and the
burden was on Northwestern to prove suicide, i.e. that
Paul intended to take his own life by jumping from the
bridge, not that he had placed himself in a position of
danger. See Dick, 359 U.S. at 443, 79 S. Ct. at 925 (“Proof
of coverage and of death by gunshot wound shifts the

(Continued from previous page)

the instant case, “The record indisputably shows a lack of
motive — in fact there is affirmative evidence from which the
jury could infer that Dick was a most unlikely suicide prospect.
He was relatively healthy, financially secure, happily married,
well liked, and apparently emotionally stable. He left nothing
behind to indicate that he had committed suicide and nothing
in his conduct before death indicated an intention to destroy
himself.” 359 U.S. at 446, 79 S. Ct. at 927.

26

burden to the insurer to establish that the death of the
insured was due to his suicide”). Many persons place
themselves in a position of danger and occasionally some
lose their lives as a result. They have not committed
suicide unless they intended to take their own lives;
otherwise death in these circumstances is accidental.

C. The First Circuit’s Test for Accidental Death
Eliminates a Number of Claims Which the
Insurance Industry Contemplated Paying and
Thereby Results in a Windfall to the Insurance
Industry.

In sharp contrast to the First Circuit’s decision in
Wickman, the majority rule is that accidental death bene-
fits are payable even if the insured intentionally placed
himself in a position of danger or otherwise engages in
careless, negligent, or reckless conduct. It is only where
the insurer proves by a preponderance of the evidence
that the insured not merely intended to inflict serious
bodily injury or place himself in a position of danger, but
actually intended to kill himself, that the insurer is enti-
tled to deny benefits based upon the suicide exclusion.
See e.g.:

1. “For the purposes of this suit, it is enough to say,
that the policy was rendered void, if the insured was
conscious of the physical nature of his act, and intended
by it to cause his death .. . ” Bigelow v. Berkshire Life Ins.
Co., 93 U.S. 284, 287 (1876) (emphasis added).

2. “The question is not whether death was reasona-
bly foreseeable, but whether the death was in fact fore-
seen by the insured. In order to defeat recovery under a

27

double indemnity provision, as involved herein, the
insured must have intended or expected that his conduct
would in all probability result in his death. Negligence
alone is not sufficient to prevent the death from being an
accident within the meaning of the policy.” Collins v.
Nationwide Life Ins. Co., 294 N.W.2d 194 (Mich. 1980)
(Michigan Supreme Court reversed trial court finding in
favor of defendant where death was caused by acute
alcoholic intoxication.)

3. “We therefore hold that where an insured dies as
a result of an intentional or expected act or event, but did
not intend or expect death to result, the death is ‘acciden-
tal’ within the contemplation of that term, as utilized ina
policy such as the one before us. See Knight v. Metro-
politan Life Insurance Company, 437 P.2d 416, 420 (Ariz.
1968)]; Miller v. Continental Ins. Co., 40 N.Y.2d 675, 389
N.Y.S.2d 565, 358 N.E. 258 (1976).” Catania v. State Farm
Life Ins. Co., 598 P.2d 631, 633 (Nev. 1979) (summary
judgment for insurer reversed where death occurred
through self-administered heroin injection even though
the amount of the dosage was “well in excess of the
amount [the insured] was in the habit of ingesting”, 598
P.2d at 635.)

4. “Plaintiff makes a case, the other elements of her
cause of action having been established, if the injury
[death], as distinguished from the means by which the
injury [death] was accomplished, was accidental. The
distinction is that between cause and effect. Although
Thelma Kearbey may have intentionally consumed the
fatal combination, the injury [death], that is the effect,
was accidental if it was not intended.” Kearbey v. Rel. L.
Ins. Co. of Webster Groves, 526 S.W.2d 866, 873 (Mo. App.

28

1975) (emphasis by the court) (death due to overdose of
alcohol and butabarbital).

5. “In the instant case, Rodgers consciously
incurred a known hazard in attempting to negotiate the
curve in the highway at the high rate of speed he was
travelling. He clearly failed to exercise judgment, which
was Careless, reckless, perhaps foolhardy, but it does not
follow that he intended to destroy himself or imperil the
lives of his guest passengers.” Rodgers v. Reserve Life
Insurance Company, 132 N.E.2d 692 (Ill. App. 1956) (judg-
ment for defendant reversed where insured died after
failing to negotiate a curve driving at 100 mph when car
hit steel guard rail, turned over on its top, and skidded
another 50 feet).

6. “Thus, despite the fact that the means of destruc-
tion in the instant case, the act of self-injection, was
intentionally caused by the decedent, the mishap must be
regarded as an accident since the result of an intentional
act, the death, was unintended.” Marsh v. Metropolitan Life
Ins. Co., Inc., 388 N.E.2d 1121, 1127 (Ill. App. 1979) (judg-
ment on verdict in favor of insurer reversed where appel-
late court ruled as a matter of law that death of plaintiff’s
decedent from self-administered overdose of heroin was
accident).

7. “The courts, however, which have been con-
cerned only with interpreting and applying the term
‘accident’ have, with substantial uniformity, reached the
conclusion that if death results from the voluntary act of
the victim, but the result is unexpected, unanticipated,
and unforeseen, it is an accidental death.” Menton v.

29

Stuyvesant Life Ins. Co., 373 F. Supp. 33, 35 (D. Nev. 1974)
(death by acute alcoholic ingestion held to be accident).

Accord: O’ Toole v. New York Life Ins. Co., 671 F.2d 913,
914 (5th Cir. 1982 applying Louisiana law) (death due to
self-administered injection of cocaine was accidental);
Sevely v. American National Insurance Company, 454 S.W.2d
799 (Tex. App. 1970) (directed verdict for insurer reversed
where death resulted from head-on collision while
insured was proceeding the wrong way on a divided
highway; “The mere fact that the deceased was inten-
tionally doing an act out of ' co
does not make the collision non-accidental”, Id. at 801),
Russell v. Metropolitan Life Ins. Co., 439 N.E.2d 89 (Ill. App.
1982) (judgment for a beneficiary affirmed where death
was due to consumption of lethal quantity of alcohol, Id.
at 90), Pacific Mut. Life Ins. Co. v. Yeldell, 62 So.2d 805 (Ala.
App. 1953) (recovery of accidental benefits affirmed
where death was due to fall from restroom window on
twelfth floor of office building in which decedent
worked), and Pilot Life Ins. Cu. v. Ayers, 163 F.2d 860, 864
(4th Cir. 1947) (recovery where death resulted from fall
from window of a hotel where insured was intoxicated).

Mary Jane respectfully submits that this Court ought
to grant iver Petition for Certiorari in order to follow the
reasoning in these cases and hold that even if an insured
intentionally places himself in a position of danger, acci-
dental death benefits are payable unless the insurer dem-
onstrates that the insured intended to take his own life. A
contrary approach will plunge the federal common law
into a “Serbonian Bog” and result in distinctions which,
as the First Circuit has stated “courts consistently have
rejected.” (Appendix A at 19a).

+

30

CONCLUSION

For these reasons, Petitioner requests this Court to
issue a writ of certiorari to the United States Court of
Appeals for the First Circuit.

Respectfully submitted,

RICHARD L. NEUMEIER*
JACQUELINE Y. PARKER

Parker, Courter, DALEY & WHITE
One Beacon Street

Boston, MA 02108

(617) 723-4500

Counsel for Petitioner
*Counsel of Record

“1a

MARY JANE WiCKMAN,
Plaintiff, Appellant,
v.

NORTHWESTERN NATIONAL LIFE
INSURANCE COMPANY,

Defendant, Appellee.
No. 89-2030.

United States Court of Appeals,
First Circuit.

Heard May 9, 1990.
Decided July 20, 1990.

Richard L. Neumeier with whom Parker, Coulter,
Daley & White, Boston, Mass., was on brief, for plaintiff,
appellant.

Edward S. Rooney, Jr., with whom Lyne, Woodworth
& Evarts, Boston, Mass., was on brief, for defendant,
appellee.

Before SELYA and CYR, Circuit Judges, and
ROSENN,” Senior Circuit Judge.

ROSENN, Circuit Judge.

This appeal calls upon us to examine the emerging
jurisprudence of the Employee Retirement Income Secu-
rity Act (ERISA) (29 U.S.C. § 1001 et seq.), and presents a
question of first impression under the Act concerning the
interpretation of life insurance contracts. The issue arises

*Of the Third Circuit, sitting by designation.

2a

out of the beneficiary’s claim for accidental death and
dismemberment benefits (AD&D) under a group policy
issued by Northwestern National Life Insurance Com-
pany (Northwestern) insuring her husband, Paul Wick-
man (Wickman). Northwestern rejected the spouse’s
claim, asserting that Wickman’s death, which resulted
when he fell forty to fifty feet from a bridge, was not
accidental.

The widow sued Northwestern in the United States
District Court for the District of Massachusetts to recover
AD&D benefits.' By consent of the parties, a magistrate
tried the case and ruled that Wickman’s death was not
accidental. On appeal, the widow challenges this conclu-
sion, as well as the earlier ruling that ERISA and not state
law governed the insurance contract. We affirm.

I.
A.

On July 11, 1984, at approximately 4:00 P.M. Michael
Blanchette was driving southbound on Route 495 in Mid-
dleborough, Massachusetts. As he approached the bridge
near the overpass of Route 105 he observed an auto-
mobile, later identified as Wickman’s, parked in a break-
down, lane, and Wickman approximately thirty feet away.
He saw Wickman standing on the outside of the bridge’s

1 The district court initially exercised jurisdiction pursuant
to 28 U.S.C. § 1332(a). Upon the dismissal of the common law
claims and the addition of the ERISA claims, the district court’s
jurisdiction was grounded in 29 U.S.C. § 1001 and 28 U.S.C.
§ 1331. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

3a

guardrail, holding on to it with only his right hand.
Blanchette turned his eyes to check on traffic, and upon
looking back he saw Wickman no longer holding on to
the rail but free-falling to the railroad tracks below.

At the point from which Wickman had been first
observed, the bridge had been erected forty to fifty feet
above the railroad tracks below. About thirty-five yards
further on, the bridge stands ninety feet above the tracks.
To reach that point, Wickman would have had to walk
head on into high speed traffic.

The bridge guardrail is three to four feet high and is
constructed of intermittent vertical concrete posts crossed
by three continuous metal horizontal railings. No area or
lip extends outside the railing on the bridge for walking
or standing. An edge of a steel support beam about one
foot below the bridge roadway projects outward for a few
inches. The magistrate ultimately concluded, “It is not
reasonable to believe that Mr. Wickman either fell over or
through the guardrail, or otherwise came to be on the
outside through mistake or inadvertence. Clearly it
would take a conscious effort to climb over or through
the guardrail on the bridge.”

Upon seeing Wickman fall, Blanchette pulled over,
stopped a tow truck and requested the driver to obtain
police and ambulance assistance. Blanchette then ran
down the embankment to administer first aid to Wick-
man. Blanchette treated him for shock and asked him
several questions. Wickman told Blanchette his name,
occupation, and that he had a family. Blanchette asked
Wickman in “two or three different ways” why he had
jumped, but Wickman failed to respond.

4a

Blanchette eventually left Wickman and flagged
down Trooper Condon, who called for an ambulance and
then attended to Wickman. Condon also asked Wickman
some general questions, and obtained responses to all of
his questions except as to what had happened. Shortly
thereafter an ambulance arrived and transported Wick-
man to St. Luke’s Hospital.

Upon admission, Trudy Dooley, the hospital emer-
gency admissions secretary, asked Wickman the standard
admissions questions, including who were his next of kin.
Though Wickman responded to questions such as name
and address, he would not provide at first the next of kin
information. Eventually after some prodding, he told
Dooley that “they don’t care,” and “it doesn’t matter.”
When asked about his religion, his initial response also
was “it doesn’t matter.” When Dooley asked what had
happened, he told her “I jumped off.”

Mrs. Wickman soon arrived at St. Luke’s, but by the
time she got there Wickman had been heavily medicated.
She spoke with him, touched and kissed him, but evi-
dently he did not recognize her for he kept saying,
“Where’s my wife?” and “I love my wife and I love my
children.” Soon after, Wickman went into cardiac arrest
and was transferred to Brockton Hospital where he died
later that evening.

At the Brockton Hospital, Dr. Howard Carpenter, a
medical examiner, who had been advised that Wickman
had jumped, issued the initial death certificate. He stated
the cause of death as suicide. Shortly thereafter, a nurse’s
note from St. Luke’s was brought to Carpenter’s atten-
tion. The note read, “admission to E.R. post-fall from 50’

5a

bridge to rail track, awake oriented X 3, states ‘fell.’”
Exhibit P8. As Dr. Carpenter explained, oriented times
three means oriented to person, piace, thing, and time;
“{hje knows who he is, where he is, and what time it is,
what day it is.” On the basis of this note and no other
information, Dr. Carpenter issued an amended certificate,
fixing the cause of death as “fall from 90 foot bridge.” Dr.
Carpenter claims that this is the only death certificate he
ever changed in the more than five thousand which he
had prepared during his time in the coroner’s office.

B.

At the time of his death, Wickman was covered by a
Northwestern issued group life and AD&D policy held
by his employer, Dexter Corporation (Dexter). The policy
named his wife as the beneficiary; it provided for pay-
ment of life insurance benefits for all causes of death and
AD&D benefits if death was accidental. The accidental
death provisions provided that an accident was “an unex-
pected, external, violent and sudden event.” The policy
also specifically noted that it did not pay benefits if the
loss was either directly or indirectly caused by “suicide

or intentionally self-inflicted injury, whether . . . sane or
insane.”

The employer Dexter and the employees paid the
premiums on the policy to Northwestern. Wickman
became eligible for the insurance as a member of the class
of Dexter “active full time employees regularly working
32 hours or more per week in a permanent position.” As
the party ultimately responsible for premium payments,
Dexter held title to the policies.

6a

Mrs. Wickman submitted claims to Northwestern
under both the accidental death and life insurance policy
provisions. She received a benefit payment of $105,000 on
the life insurance policy. Following its investigation,
Northwestern denied her claim for an equal amount
under the accidental death provisions. The Company
wrote to claimant’s counsel:

The policy defines accident as an unexpected,
external, violent and sudden event. It further
provides that we do not pay benefits for loss
directly or indirectly caused by suicide or inten-
tionally inflicted injury whether sane or insane.

According to the police report the Insured’s wife
stated that her husband had been seeing a
psychiatrist and had talked about suicide. The
Death Certificate also indicates that the cause of
death was suicide. Because the Accidental Death

rovision of the policy excludes payment of

enefits for suicide, we do not believe Acciden-
tal Death Benefits are payable.

Exhibit D1.

In her suit, the spouse asserted a claim for breach of
contract and requested a jury trial. She alleged that Wick-
man had not committed suicide, but ended up on the
wrong side of the guardrail when he became disoriented
while looking for help after his car broke down. His car
had been retrieved by his daughter from the police the
day after his death. She drove the car away without any
difficulty, and a subsequent mechanical inspection found
no defect. The widow also asserted that her husband, a
devout Catholic, would not commit suicide, and that he
was in the midst of planning a vacation. Finally, she

7a

alleged that he showed no signs of depression, and had
never contemplated suicide.

The district court, upon Northwestern’s motion, dis-
missed the complaint, holding that the insurance policy
was a part of the plan governed by ERISA, and as such
ERISA preempted any state law claims. The court allowed
plaintiff leave to amend, and she amended the complaint
to add claims under ERISA. The court, in reliance upon
its earlier decision, summarily dismissed the common
law claim. The parties agreed that there was no right to a
jury trial in an action for benefits brought under ERISA
and consented to a trial before a United States Magistrate.

After a full trial, the magistrate performed a de novo
review of the facts and determined that Wickman’s death
was not accidental. He denied the widow’s claim for
AD&D benefits. He found that Wickman had inten-
tionally climbed over the guardrail, and that in so doing
he was “substantially certain” that he would suffer signif-
icant injuries, if not death. Specifically, “the court [found]
that Mr. Wickman knew or should have known that
serious bodily injury or death was a probable conse-
quence substantially likely to occur as a result of his
volitional act of placing himself outside of the guardrail
and hanging on with one hand.” Id. at 67-68. The court
held as a matter of law that the insured did not lose his
life because of an accident as defined under the policy.
His widow now appeals this ruling and, in the alterna-
tive, challenges the magistrate’s prior ruling that ERISA
preempted her common law claim.

8a

7

Il.

The threshold question in this case is whether plain-
tiff’s claim is properly a claim under ERISA, or, in the
alternative, a claim under state law. 29 U.S.C. § 1003(a)
provides that ERISA supersedes any and all state law,
except for state insurance, banking, and securities regula-
tion. Under this section, a claimant’s common law con-
tract and torts claims asserting the improper processing
of a claim for benefits under an ERISA regulated insur-
ance policy are pre-empted. See Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 57, 107 S.Ct. 1549, 1558, 95 L.Ed.2d
39 (1987). Insurance coverage which is part of an ERISA
plan is regulated under ERISA. See id. at 48, 107 S.Ct. at
1553. The magistrate, finding that the AD&D policy at
issue here was part of an ERISA plan, held that the
widow’s claims were limited to those under ERISA. See
Metropolitan Life Ins. Co. Taylor, 481 U.S. 58, 62-63, 107
S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987).

ERISA applies to:

any employee benefit plan if it is established or
maintained —

(1) by any employer engaged in commerce or
actively affecting commerce; or

(2) by any employee organization or organiza-
tions representing employees engaged in com-

merce or in any industry or activity affecting
commerce; or

(3) both.
29 U.S.C. § 1003{a). The question of whether an ERISA

plan exists is “a question of fact, to be answered in light
of all the surrounding facts and circumstances from the

9a

point of view of a reasonable person.” Kanne v. Connecti-
cut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir. 1988),
cert. denied, __ U.S. ___, 109 S.Ct. 3216, 106 L.Ed.2d 566
(1989).

In a cursory fashion, the statute defines an employee
benefit plan as “an employee welfare benefit plan or an
employee pension benefit plan or a plan which is both an
employee welfare benefit plan and an employee pension
benefit plan.” 29 U.S.C. § 1002(3). As one court has noted,
a welfare benefit plan under ERISA requires five essential
constituents:

(1) a plan, fund or program (2) established or
maintained (3) by an employer or by an
employee organization, or by both (4) for the
purpose of providing medical, surgical, hospital
care, sickness, accident, disability, death, unem-
ployment or vacation benefits, apprenticeship or
other training programs, day care centers, schol-
arship funds, prepaid legal services or severance
benefits (5) to participants or their beneficiaries.

Donovan v. Dillingham, 688 F.2d 1367, 1370 (11th Cir. 1982)
(en banc). There is no dispute that the last three prerequi-
sites were met in this case. The real dispute is whether
this is a plan which the employer “established or main-
tained.”

The court in Donovan also formulated the prevailing
standard for determining whether a plan has been estab-
lished.

In summary, a “plan, fund or program” under
ERISA is established if from the surrounding
circumstances a reasonable person can ascertain
the intended benefits, a class of beneficiaries,

10a

the source of financing, and procedures for
receiving benefits.

Id. at 1373. As the magistrate points out, this test is easily
met in this case and the plaintiff-widow never contests
that the intended benefits were accident insurance bene-
fits. The beneficiaries were full-time employees and their
appointed beneficiaries. Dexter, the employer, financed
the plan and possibly also employee contributions. Dex-
ter fixed a formal claim procedure, which the widow in
fact used. The plaintiff contends, though, that to be a plan
there must be something more: the mere purchase of
insurance is not enough to constitute a plan. See Taggart
Corp. v. Life & Health Benefits Admin., 617 F.2d 1208, 1211
(Sth Cir. 1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739,
68 L.Ed.2d 225 (1981).

The plaintiff’s basic assertion that a mere purchase of
insurance does not constitute a plan is correct, though in
this case there is more than a mere purchase of insurance.
In Taggart, relied upon by the widow, the employer acted
solely as a channel for payments from the employee to a
trust fund which purchased the group insurance. The
employer “neither directly nor indirectly own[edj, con-
trol[led], administer[ed], or assume[d] responsibility for
the policy or its benefits.” Id. All it did was deduct funds
from the employee’s pay check, and transfer the funds to
the trust fund. Significantly, there was only one employee
covered under that insurance, the employer’s only
employee.

Taggart, thus, does not stand for the proposition “that
an employer or employee organization that only purchase
a group health insurance policy or subscribes to a [multi-
ple employer trust] to provide health insurance to its

lla

employees or members cannot be said to have established
or maintained an employee welfare benefit plan.” Don-
ovan, 688 F.2d at 1375. In fact, “the purchase of a group
policy or multiple policies covering a class of employees -
offers substantial evidence that a plan, fund, or program
has been established.” Id. at 1373. Taggart is merely a
recognition that ERISA is not intended to cover situations
where the employer merely “advertises” insurance, and
then makes voluntary deductions from employees’ pay-
checks. See 29 C.F.R. § 2510.3-1(j).

The crucial factor in determining if a “plan” has been
established is whether the purchase of the insurance pol-
icy constituted an expressed intention by the employer to
provide benefits on a regular and long term basis. See Ed
Miniat, Inc. v. Globe Life Ins. Group, 805 F.2d 732, 739-41
(7th Cir. 1986), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96
L.Ed.2d 676 (1987). For example, in Donovan the court
paid particular attention to the written agreement that
the employers had to either provide benefits or “purchase
benefits for a substantial percentage of a class of
employees or members under circumstances tending to
show an anticipated continuing furnishing of such bene-
fits.” Donovan, 688 F.2d at 1374-75. Significantly, there
were no indicia of a long term commitment in Taggart,
where it appears the benefits, what little they amounted

to, had no sense of permanence. See Taggart, 617 F.2d
1211.

In this case, the purchase of the insurance was not an
isolated and aberrational incident, limited only to acci-
dent insurance, or simply to Wickman. Dexter provided a
comprehensive insurance program, offering health, medi-
cal, dental, and life insurance, as well as several other

12a

forms of insurance and benefits. Exhibit P17. It distrib-
uted a handbook containing a listing of ERISA rights and
a summary plan description. Such a booklet, detailing
ERISA rights, is strong evidence that the employer has
adopted an ERISA regulated plan. See Kanne, 867 F.2d at
493. The Company here also contemplated and devised
specific insurance eligibility requirements. Apparent from
this degree of planning, precision, and detail is that the
purchase of the group policy was not an aberrational or
singular act, but represented Dexter’s calculated commit-
ment to qualified employees for similar benefits regularly
in the future. Thus, the group accident insurance formed
a considered employer plan under ERISA, making the
plaintiff’s claims under the policy subject exclusively to
ERISA’s jurisdictional requirements.

Il.

Having crossed the ERISA threshold, we must now
determine whether the magistrate correctly ruled that
Wickman’s death was not the result of an accident, and
whether he properly denied the widow’s claim for acci-
dental death benefits. The magistrate found that there
were only three possible explanations for Wickman’s
actions: Wickman intentionally projected himself over a
dangerous visible void intending to (1) commit suicide,
(2) seriously injure himself, or (3) having so positioned
himself, fell inadvertently or mistakenly. The magistrate
ruled that under the first two scenarios the policy exclu-
sion of losses resulting from suicide or intentionally self-
inflicted injury controlled and mandated denial of the
claim. Assuming arguendo the third scenario, an inadver-
tent or mistaken fall, he held that even if Wickman had

13a

no specific intent to injure or kill himself, “the harm that
befell him was substantially certain to happen.” Once
Wickman intentionally climbed over the guardrail and
suspended himself with one hand, the magistrate found
that serious bodily injury was substantially certain. This,
he found, is not a case where the insured “intentionally
did an act with some unexpected result.” He therefore
concluded as a matter of law that the insured did not lose
his life due to an accident as defined under the policy or
Massachusetts law. The widow challenges the legal con-
clusions drawn by the magistrate. She contends that
under the second and third hypotheticals, Wickman died
accidentally and, absent an explicit finding of suicide, she
is entitled to the policy benefits.

A.

The benefit provisions of an ERISA regulated group
life insurance program must be interpreted under princi-
ples of federal substantive law. Pilot Life Ins., 481 U.S. at
56-57, 107 S.Ct. at 1557-58. Burnham v. Guardian Life Ins.,
Co., 873 F.2d 486, 489 (ist Cir. 1989). The federal common
law on the issue of insurance benefits is still in its forma-
tive stage but “must embody common-sense canons of
contract interpretation.” Id. Nonetheless, in developing
, the federal common law, it is not inappropriate that we
examine the various state law approaches, states gener-
ally having had much more experience in the area of
insurance contract interpretation. Borrowing those con-
cepts which are best reasoned may be prudential.

Applying the basic tenets of contract interpretation,
the first place to look for a definition is in the terms of the

14a

policy contract itself. Id. These terms must be given their
plain meanings, meanings which comport with the inter-
pretations given by the average person. See Hoffman v. Life
Insurance Co., 669 P.2d 410, 416 (Utah 1983); Knight v.
Metropolitan Life Ins. Co., 437 P.2d 416 (Ariz. 1968); 10
Couch on Insurance 2d, § 41:9, 13 (1982). Courts have also
held, nearly unanimously, “that insurance contracts must
be liberally construed in favor of a policyholder or bene-
ficiary . . . and strictly construed against the insurer in
order to afford the protection which the insured was
endeavoring to secure when he applied for the insur-
ance.” 13 Appleman, Irsurance Law and Practices § 7401 at
197 (1976). See Howard v. Federal Crop Ins. Corp., 540 F.2d
695 (4th Cir. 1976); Rezendes v. Prudential Ins. Co., 285
Mass. 505, 189 N.E. 826 (1934).

The policy in this case specifically provides that ben-
efits will not be paid “for loss directly or indirectly
caused by . . . [sJuicide or intentionally self-inflicted
injury, whether [insured is] sane or insane.” We are
bound by this plain language, and we may not distort it
in an effort to achieve a desirable or sympathetic result.
The language, in the clearest of terms, denies benefits if
Wickman committed suicide, the magistrate’s first sce-
nario.

Similarly, if Wickman merely attempted to injure
himself, and did not specifically intend to kill himself
(scenario two), again no benefits would be due his
widow. His death would have been “indirectly caused”
by his attempt to injure himself. The plain language of
the policy denies benefits under such a [sic] circum-
stances. To read the policy in any other way would be to

15a

give no effect to the contractual clause “directly or indi-
rectly caused by,” a result inconsistent with the basic
rules of contractual interpretation. Thus, the magistrate
correctly ruled that under his first two scenarios, North-
western would not be liable under the policy to the
plaintiff for accidental death benefits.

This still leaves us with the more vexing questions
raised under the magistrate’s third scenario: whether the
widow is due benefits if Wickman climbed over the
guardrail without any intent to kill or injure himself but
fell inadvertently. The resolution of this hypothesis
requires that we delve into the metaphysical conundrum
of what is an accident.

B.

In defining the term “accident,” as in other terms
used in an insurance contract, we, of course, first look at
the contract. The language in this contract, though, is
somewhat less than dispositive.? It defines “accident” as

2 The contract, in its relevant portion, reads:

What is the Accidental Death and Dismemberment
(AD&D) Benefit:

We pay AD&D benefits if you lose your life, limb, or
sight due to accidental injury.

Under what conditions do we pay benefits? We pay
benefits if all of the following are true:

- You are covered by AD&D Insurance on the date of
the accident.

(Continued on following page)

16a

“an unexpected, external, violent, and sudden event.” It
is undisputed that the fall was external, violent, and
sudden, but the parties disagree over whether it was
unexpected. Northwestern contends that when Wickman
climbed over the railing and extended himself from the
bridge he must have expected that he would fall and kill
or, at least, significantly injure himself. His widow con-
tends that only if Wickman intended to commit suicide
could the incident not be an accident; otherwise, he
would not have expected to die. The question comes
down to what level of expectation is necessary for an act
to constitute an accident; whether an intentional act prox-
imately resulting in injury or only the ultimate injury
itself must be accidental.

A survey of state judicial interpretations of “acciden-
tal” reveals that there are essentially two approaches to
determining whether an injury was “unexpected” and
thus “accidental.” In developing federal common law, it
would be jurisprudential to analyze each of these
approaches and determine which is the soundest and
most consonant with the spirit of ERISA in promoting fair
and equitable settlements of claims, as well as in promot-
ing the formation of employee benefit plans. See Pilot Life,
481 U.S. at 54, 107 S.Ct. at 1556.

(Continued from previous page)
—- Loss occurs within 180 days of accident.

— The cause of the loss is not excluded.

It is evident from this clause that an injury must be accidental
to qualify for AD&D Benefits. Thus, for the plaintiff to have
made out a prima facie case, she had to establish that Wick-
man’s death was an “accident” within the terms of the policy.

a

17a

The First approach distinguishes between accidental
means and accidental results. Under this approach, where
the insurance contract insures against “accidental
means,” the means which produced death or injury must
have been unintentional. According to this interpretation,
if the act proximately leading to injury is intentional, then
so is the result, even if the result itself was neither
intended nor expected. To constitute an accident under
this standard, the cause of the injury, as Couch explains,
must be “unforeseen, unexpected, and unusual; happen-
ing or coming by chance without design, that is casual or
fortuitous, as opposed to designed or intended.” 10
Couch on Insurance 2d § 41:28, 40 (1982).

A court only will focus on “accidental means,”
though, if the language of the contract specifically speaks
of accidental means. The contract in this case defines an
accident in terms of an event. This would be the type of
language which would prompt courts recognizing the
distinction between “means” and “results” to look at the
“means,” because only the means can be termed an event.
These courts would reason that if the contract had
intended a “result” analysis, it would have spoken of an
unexpected injury, not an unexpected event. Similarly,
“violent, external, and sudden” terms concentrate upon
the cause of the injury, not upon the injury itself.

The United States Supreme Court, in a landmark
case, applied the means/result distinction and deter-
mined that a man who died of heat stroke while golfing
had not died of accidental means. The Court reasoned
that because the insured had intentionally played golf
and exposed himself to the hot sun for a long period of
time, the means of his death, overexposure to the sun,

18a

was not accidental. Landress v. Phoenix Mutual Life Ins. Co.,
291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934 (1934).% Justice
Cardozo dissented, harshly criticizing the “artificial” dis-
tinction between accidental means and results. He noted
that:

“Probably it is true to 8 that in the strictest -
sense and dealing with the region of physical
nature there is no such thing as an accident.”
Halsburg, L.C. in Brintons v. Turvey, L.R.
[1905]. . . . On the other hand, the average man
is convinced that there is, and so certainly is the
man who takes out a policy of accident insur-
ance. It is his reading of the policy that is to be
accepted as our guide, with the help of the
established rule that ambiguities and uncertain-
ties are to be resolved against the company.

* * *

When a man has died in such a way that his
death is spoken of as an accident, he has died
because of an accident, and hence by accidental
means.

Id. at 499 (citations omitted). Cardozo forewarned that
adherence to the distinction would “plunge this branch of
the law into a Serbonian Bog.” Id.

Time has borne out Cardozo’s prediction. As the
Texas Supreme Court has noted:
Texas courts have waded through Justice Car-

dozo’s Serbonian bog, and we are now con-
vinced that the terms “accidental death” and

3 Landress preceded Erie Railroad Co. v. Tompkins, 304 U.S.
64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and, thus, is no longer
binding as federal common law.

19a

“death by accidental means,” as those terms are
used in insurance policies, must be regarded as
legally synonymous... .

Republic National Life Insurance Company v. Heyward, 536
S.W.2d 549 (Tex. 1976); see also Beckham v. Travelers Ins.
Co., 424 Pa. 107, 225 A.2d 532, 535 (1967) (“Our own cases
have also confirmed Cardozo’s prediction. . . . ”). Other
courts have been equally frustrated by the means/injury
distinction, which has “shrouded [this branch of law] in a
semantic and polemical maze,” and forced courts apply-
ing the distinction to resort to “tortuous and tortured
legal jiujitsu).” Annotation, Insurance: “Accidental Means”
as Distinguishable from “Accident,” “Accidental Result,”
“Accidental Death.” “Accidental Injury,” etc., 166 A.L.R.
469, 477 (1947).

In recent years, courts consistently have rejected the
distinction between accidental means and accidental
results noting that:

it is illogical to purport to distinguish between
the accidental character of the result and the
means which produce it; that the distinction
gives to “accidental means” a technical defini-
tion which is not in harmony with the under-
standing of the common man; and that the
ambiguity found in the concept should be
resolved against the insurer so as to permit cov-
erage.

10 Couch i Insurance 2d § 41:31, 50 (1982); see also Page
Flooring and Constr. Co. v. Nationwide Life Ins. Co., 840 F.2d
159, 162 (1st Cir. 1988) (Coffin, J., dissenting) (urging the
interpretation prevailing in an increasing number of juris-
dictions that the two terms be construed as synonymous
and rejecting the distinction between “accidental means”

SS ree Yl

20a

and “accidental results” as artificial and confusing). Hav-
ing reviewed the pertinent state court decisions, we con-
clude that the better reasoning rejects the distinction.
Thus, we elect to pursue a path for the federal common
law which safely circumvents this “Serbonian Bog.”

Cc.

This election, however, does not resolve the debate
over what constitutes an accident nor does it resoive the
case before us. In ultimately determining what is an
accident, we are still left with questions concerning the
standards by which to judge the insured’s expectations.
The plaintiff advances the argument that anything short
of specifically intended injury is an accident. The magis-
trate, though, disagreed with this proposition and ruled
that even if Wickman did not intend to kill or injure
himself, he did not die accidentally. Despite the widow’s
contention, the magistrate did not apply an “intentional
means” analysis in reaching this conclusion, but instead
determined that Wickman either actually expected or rea-
sonably should have expected the ultimate result which
befell him. Because of this expectation - not merely
because the means of death was voluntary — the magis-
trate held that Wickman’s death was not accidental.

Defining accident has troubled the state and federal
judiciaries for year. Probably the best definition is Car-
dozo’s tautology that an accident is what the public calls
an accident, which aids jurists in deciding individual
cases only slightly. As the late Justice Musmanno of the
Pennsylvania Supreme Court bemused:

21a

i

What is an accident? Everyone knows what an
accident is until the word comes up in court.
Then it becomes a mysterious phenomenon,
and, in order to resolve the iy mm witnesses
are summoned, experts testify, lawyers argue,
treatises are consulted and even when a con-
clave of twelve world-knowledgeable individ-
uals agree as to whether a certain set of facts
made out an accident, the question may not yet
be settled, and it must be reheard in an appel-
late court.

Brenneman v. St. Paul Fire and Marine Ins. Co., 411 Pa. 409,
192 A.2d 745, 747 (1963); see Burr v. Commercial Travelers
Mut. Acc. Ass’n, 295 N.Y. 294, 301, 67 N.E.2d 248, 166
A.L.R. 462, 466 (N.Y. 1946) (“Philosophers and lexicogra-
phers have attempted definition with results which have
been productive of immediate criticism. No doubt the
average man would find himself at a loss if asked to
formulate a written definition. . . . ”). Much of the incon-
sistency in the case law defining and applying the defini-
tion of accident is traceable to the difficulty in giving
substance to a concept which is largely intuitive. Recog-
nizing this problem, we continue our trek across this
judicial morass realizing that some mud on our boots
may be inevitable. Nonetheless, we continue to strive to
avoid miring in a “Serbonian Bog.”

Case law is fairly consistent in defining an accident,
using equally ambiguous terms such as undesigned,
unintentional, and unexpected. See Beacon Textiles Corp. v.
Employees Mut. Liab. Ins. Co., 355 Mass. 643, 246 N.E.2d
671, 673 (1969); 1A Appleman, Insurance Law and Practice
§ 360, 449 (1982). The contract at issue here uses the term
“unexpected.” These terms offer no guidance in deter-
mining from whose perspective they should be judged.

22a

The common law has filled this gap, to a certain extent,
by prescribing that these terms should be judged from the
viewpoint of the insured. See Id. at 450-52; Estate of Wade
v. Continental Ins. Co., 514 F.2d 304, 306-07 (8th Cir. 1975).

The plaintiff would have us rule that this common
law premise means that unless Wickman actually
expected to die, essentially that he specifically intended
to commit suicide, his death must be considered an acci-
dent. Such a strict definition from the perspective of the
insured suffers from two imperfections, both of which
make the test inappropriate in certain cases. The first
difficulty comes in cases where an insured’s expectations,
virtually synonymous with specific intent, are patently
unreasonable.

To illustrate, there are several reported cases of peo-
ple who have participated in games of Russian roulette
not expecting or intending that they be killed, evidently
entertaining a fanciful expectation that fate would inev-
itably favor them. The courts have gznerally held that the
insureds’ deaths in these cases, regardless of actual
expectation or intention, were not accidental. See Nicholas
v. Provident Life & Acc. Ins. Co., 61 Tenn. App. 633, 457
S.W.2d 536 (1970); Koger v. Mutual of Omaha Ins. Co., 152
W.Va. 274, 163 S.E.2d 672 (W.Va. 1968); Taompson v. Pru-
dential Ins. Co., 84 Ga. App. 214, 66 S.E.2d 119 (1951).

* A game where the participants inject one bullet in one
chamber of a pistol, spin the barrel, place the pistol to their
heads, and pull the trigger. A player playing by the rules will
not make any effort to check if the firing chamber is empty
before pulling the trigger. Thus, essentially a participant relies
solely upon fate to determine if he or she will be shot.

23a

When a person plays a game like Russian roulette and is
killed, the death, to use Cardozo’s test, would not be
publicly regarded as an accident. See also Allred v. Pruden-
tial Ins. Co., 247 N.C. 105, 100 S.E.2d 226 (1957) (no
accident where insured, a fifteen year old boy, inten-
tionally laid down lengthwise in the middle [sic] a high-
way and was subsequently run over and killed). To allow
recovery in such circumstances would “defeat the very
purpose or underlying function of accidental life insur-
ance.” Kennedy v. Washington National Ins. Co., 136 Wis.2d
425, 401 N.W.2d 842, 846 (Ct. App. 1967).

The second difficulty with a test relying upon actual
expectation is that actual expectation is often difficult, if
not impossible, to determine. As one court has noted,
“the subjective state of the mind of the insured cannot be
generally known.” Hoffman v. Life Ins. Co., 669 P.2d 410,
419 (Utah 1983). Generally, to make an “accident” solely
dependent upon actual expectation compels courts and
jurists to hypothesize and speculate. As in a case like this,
where there are only vague clues as to what Paul Wick-
man actually thought when he climbed over the guard-
rail, efforts to recreate a person’s actual expectations
encounter the evident risks of error and frustration. It is
an uncertain and too often a hopelessly blind search for
the truth.

Notwithstanding these problems, we do not suggest
actual expectation should be wholly ignored, for in most
cases actual expectations govern the risks of an insurance
policy a beneficiary believes has been purchased. Gener-
ally, insureds purchase accident insurance for the very
purpose of obtaining protection from their own mis-
calculations and misjudgments. See Knight v. Metropolitan

24a

Life, 103 Ariz. 100, 437 P.2d 416 (1968); 1A Appleman,
supra § 360, 454. Thus, the reasonable expectations of the
insured when the policy was purchased is the proper
starting point for a determination of whether an injury
was accidental under its terms.

If the fact-finder determines that the insured did not
expect an injury similar in type or kind to that suffered,
the fact-finder must then examine whether the supposi-
tions which underlay that expectation were reasonable.
See New York Life Ins. Co. v. Harrington, 299 F.2d 803, 806
(9th Cir. 1962). This analysis will prevent unrealistic
expectations from undermining the purpose of accident
insurance. If the fact-finder determines that the supposi-
tions were unreasonable, then the injuries shall be
deemed not accidental. The determination of what suppo-
sitions are unreasonable should be made from the per-
spective of the insured, allowing the insured a great deal
of latitude and taking into account the insured’s personal
characteristics and experiences. See, e.g., Ward v. Penn
Mutual Life Ins. Co., 352 S.W.2d 413, 423 (Mo. Ct. App.
1961) (finding accident where man fell off top of moving
car; he had performed the stunt previously, knew, and
trusted the driver, was strong, and had a good grip);
Oldring v. Metropolitan Life Ins. Co., 492 F. Supp. 994
(D.N.J. 1980) (finding an accident where owner experi-
enced in use of gun, after having examined the gun and
thinking it was empty, pointed and fired the gun at his
head, killing himself); Knight v. Metropolitan Life Ins. Co.,
supra, (finding accidental the death of professional diver
after diving off the Coolidge Dam; he previously had
completed the same dive without injury).

25a

Finally, if the fact-finder, in attempting to ascertain
the insured’s actual expectation, finds the evidence insuf-
ficient to accurately determine the insured’s subjective
expectation, the fact-finder should then engage in an
objective analysis of the insured’s expectations. See Hoff-
man, 669 P.2d at 419. In this analysis, one must ask
whether a reasonable person, with background and char-
acteristics similar to the insured, would have viewed the
injury as highly likely to occur as a result of the insured’s
intentional conduct. See City of Carter Lake v. Aetna Cas.
and Sur. Co., 604 F.2d 1052, 1058-59 & n.4 (8th Cir. 1979).
An objective analysis, when the background and charac-
teristics of the insured are taken into account, serves as a
good proxy for actual expectation. Requiring an analysis
from the perspective of the reasonable person in the
shoes of the insured fulfills the axiom that accident
should be judged from the perspective of the insured. See
Sanders v. Prudential Ins. Co., 697 S.W.2d 80 (Tex. Ct. App.
1985).

D.

Applying these concepts, we believe that the magis-
trate did not err in ruling that Wickman’s death was not
an accident within the terms of the insurance policy.> The

5 Because the magistrate decided there was no accident in
this case, and we affirm on this basis, he did not and we need
not reach the question of whether Wickman’s death was actu-
ally a suicide. The failure to reach this issue makes the pre-
sumption relating to the death certificate and the presumption

(Continued on following page)

26a

linchpin of the magistrate’s findings was his conclusion
that “Wickman knew or should have known that serious
bodily injury or death was a probably [sic] consequence
substantially likely to occur as a result of his volitional
act in placing himself on the outside of the guardrail and
hanging on with one hand.” This finding equates with a
determination either that Wickman expected the result, or
that a reasonable person in his shoes would have
expected the result, and that any other expectation would
be unreasonable.

If he actually expected the result, even if he did not
specifically intend it, then his actual expectations make |
his death not accidental. It appears that the magistrate
hedged his opinion with the “should have known” lan-
guage because the third scenario, that Wickman went out
on the rail for reasons other than to injure or kill himself,
was undeveloped and unsubstantiated at trial. The plain-
tiff never proffered a specific alternate explanation for
Wickman’s actions, leaving the magistrate to conjecture.©

(Continued from previous page)

against suicide, relied upon extensively by the plaintiff, irrele-
vant. We do note, in passing, that these presumptions are not
irrebuttable, and only exist to shift the burden of going for-
ward with the evidence to aob ot arguing suicide. See Fed.
R. Evid. 301; Republic Na tife Ins. Co. v. Heyward, 536
S.W.2d 549 (Tex. 1976); Equitable Life Assur. Soc. v. Irelan, 123
F.2d 462, 464 (9th Cir. 1941).

© At trial the plaintiff explained her husband’s actions as
an errant ending up on the outside of ihe guardrail, making the
action which led to the injury unintentional and unexpected,
thus accidental. The magistrate directly found that Wickman

(Continued on following page)

27a

Under such circumstances, it certainly can be said that
there was insufficient evidence, assuming arguendo, as
did the magistrate, the accuracy of the third scenario, to
teach a conclusion as to Wickman’s actual expectation.
Thus, the magistrate appropriately engaged in an objec-
tive analysis.

The magistrate’s conclusion that Wickman “should
have known” that death or injury was “substantially
likely to occur” is not in error either legally or factually.
Legally, “should have known” is synonymous with, if not
even a higher standard than, the reasonable expectation
standard we promulgated above. Similarly, “substantially
likely to occur” is an equivalent, if not tougher, standard
to “highly likely to occur.” Thus, the magistrate applied

an acceptable legal standard, and did not commit an error
of law.

The plaintiff has never seriously challenged the accu-
racy of the factual conclusion. She largely concedes that a
reasonable person in Wickman’s shoes would have
expected to die or be seriously injured as a result of
climbing over the guardrail and hanging on with only
one hand. Such a concession, given the height of the
bridge, the narrow foothold, that Wickman possessed no
extraordinary gymnastic, acrobatic, or other athletic
skills, and the absence of evidence that would have

(Continued from previous page)
intentionally climbed over the guardrail, thus rejecting this

interpretation of the incident. This finding of fact, which is not
clearly erroneous, is not challenged by the widow.

28a

enabled him to hold on, is not surprising. Thus, the
magistrate’s conclusion that Wickman’s death was to be
reasonably expected is not clearly erroneous.

IV.

In sum, we conclude that this case is governed under
ERISA, and that applying federal common law under
ERISA, Paul Wickman’s death did not constitute an acci-
dent within the terms of his group accident insurance
policy. Wickman either subjectively expected serious
injury, or the evidence was inconclusive as to his subjec-
tive expectation. Objectively, he reasonably should have
expected serious injury when he climbed over the guard-
rail and suspended himself high above the railroad tracks
below by hanging on to the guardrail with only one hand.

Accordingly, the judgment below is AFFIRMED.

1b

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MARY JANE WICKMAN

Vv CIVIL ACTION
: NO. 86-1895-WF
NORTHWESTERN NATIONAL LIFE

INSURANCE COMPANY

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

COLLINGS, U.S.M.
| INTRODUCTION

This action was instituted by the plaintiff, Mary Jane
Wickman (hereinafter “Mrs. Wickman”), as a named ben-
eficiary of a group policy of insurance in effect at the time
of the death of her husband, Paul P. Wickman (hereinafter
“Mr. Wickman”). The policy of insurance, issued by the
defendant, Northwestern National Life Insurance Com-
pany (hereinafter “Northwestern”), insured Mr. Wickman
for life insurance and accidental death benefits. Under
the terms of the policy, Northwestern agreed to pay the
named beneficiary, in this instance Mrs. Wickman, one
hundred five thousand dollars ($105,000) if Mr. Wickman
died while the policy was in force and, further, to double
that amount if Mr. Wickman’s death was the result of an
accident. Northwestern paid Mrs. Wickman ordinary
death benefits in accordance with the policy provisions
following Mr. Wickman’s demise but denied her claim of
entitlement to an additional one hundred five thousand
dollars for accidental death benefits. Northwestern’s
denial of Mrs. Wickman’s claim for accidental death ben-
efits precipitated the instant litigation.

———

2b

Upon the consent of the parties, this case was
referred to the undersigned for all purposes, including
trial and the entry of judgment pursuant to 28 U.S.C.
§ 636(c) by order of the District Judge to whom this case
is assigned.

PRE-TRIAL PROCEEDINGS

The plaintiff’s initial complaint was framed as an
action under a common law theory of breach of contract.
The defendant moved to dismiss the complaint, arguing
that Mrs. Wickman’s state law claim was pre-empted by
the provisions of the federal Employee Retirement
Income Security Act of 1974 (ERISA). After considering
the current state of statutory and case law on the issue,
the Court allowed Northwestern’s motion to dismiss,
concluding that ERISA applied and, therefore, pre-emp-
ted the plaintiff’s state law claim for breach of contract.
Wickman v. Northwestern National Life Insurance Co., C.A.
86-1895-WF, D. Mass, 10/22/87 (slip option). In the wake
of this decision, the plaintiff, without objection from the
defendant, filed an amended complaint incorporating
several claims arising under ERISA. The defendant filed
an amended answer and the case continued apace.

The determination that Mrs. Wickman’s cause of
action was governed by ERISA significantly altered the
complexion of this litigation. The plaintiff had claimed a
trial by jury in her original complaint; the parties agreed
that there was no right to a jury trial in an action for
benefits brought under ERISA. Further, the applicability
of ERISA’s enforcement scheme prompted the filing of a
motion in limine by the defendant raising issues not fully

3b

addressed by the Supreme Court or the First Circuit as of
that date. On these questions, the parties were not in
accord.

The first issue was what the plaintiff's burden of
proof should be under ERISA’s enforcement scheme. In a
breach of contract action under state law, the plaintiff
would have to demonstrate by a preponderance of the
evidence that Mr. Wickman’s death was accidental and,
thus, that Northwestern had breached the terms of the
policy by refusing to pay accidental death benefits. On
the other hand, as the Court stated in its Memorandum
On Defendant’s Motion To Dismiss (#28), under ERISA,
the plaintiff’s burden would be to show that the decision
to deny benefits by the insurance company as a fiduciary
was “arbitrary and capricious.” However, the plaintiff
argued, notwithstanding the applicability of ERISA’s pro-
visions, that the arbitrary and capricious standard was
inappropriate. Rather, the plaintiff maintained that state
law, i.e., the preponderance of the evidence standard,
should govern the burden of proof when the issue is

interpretation of insurance policies regarding payment of
benefits.

The second issue raised was what the scope of the
trial should be. The defendant contended that the Court
should limit its consideration to the evidence that was
before Northwestern when the decision to deny acciden-
tal death benefits was made. This circumscribed review,
of course, was in tandem with the defendant's position
that the Court need only decide if the defendant's denial
of benefits was arbitrary and capricious based on the
evidence it possessed at the time. Conversely, the plaintiff
argued that the Court should conduct a trial de novo to

4b

consider all the evidence that the parties might wish to
present.

In light of the plaintiff’s continued strenuous objec-
tion to the applicability of ERISA to her claims, as well as
the dearth of precedent on these issues at the time, the
Court was not wont to foreclose the plaintiff from estab-
lishing as complete a record as possible for any future
appeal while simultaneously avoiding the potential
necessity of a retrial. Moreover, the need to decide the
issues pre-trial was obviated by the fact that the case
proceeded to trial with the Court sitting without a jury.
Thus, reserving on the questions of burden of proof and
the scope of the proceeding the Court heard all the evi-
dence the parties sought to present as if it were a trial de
novo over the course of a four-day trial in February, 1988.

While the case was sub judice, the Supreme Court on
February 21, 1989, decided the case of Firestone Tire and
Rubber Company v. Burch, ___ U.S. ___, 109 S.Ct. 948 (1989)
and held that:

[Flor purposes of actions under [29 U.S.C.]
§ 1132(a)(1)(B), the de novo standard of review
applies regardless of whether the plan at issue is
funded or unfunded and regardless of whether
the administrator or fiduciary is operating
under a possible or actual conflict of interest.

Id. at 956.

Since Mrs. Wickman’s action is one under 29 U.S.C.
§ 1132(a)(1)(B) (“to recover benefits due . . . under the
terms of [the plan]”), the de novo standard applies.

Having considered the testimony of the witnesses,
the exhibits admitted into evidence and the arguments of

5b

counsel and reviewing the decision to deny benefits on a
de novo basis, the Court finds that the plaintiff has not
carried her burden, i.e. demonstrated by a preponderance
of the evidence that Mr. Wickman’s death was accidental
within the meaning of the insurance policy, and therefore,
that Northwestern breached the contract by refusing to
pay accidental death benefits.

FINDINGS OF FACT

1. The life of Mr. Wickman was insured through group
life policy No. GL-18090-4 purchased through his
employer, the Dexter Corporation, from the defen-
dant, Northwestern. (Stipulation of Uncontested
Facts #38 4 1)

2. Mr. Wickman died on July 11, 1984 while group life
policy No. GL-18090-4 was in effect. (Stipulation #38
q 2)

3. Mrs. Wickman was a named beneficiary of group life
porcy No. GL-18090-4 at the time of the death of her
usband, Mr. Wickman. (Amended Complaint #33

q 8; Answer to Amended Complaint #34 4 8)

4. Group life policy No. GL-18090-4 provides for the
payment of ordinary life insurance benefits for all
causes of death upon written proof of the insured’s
death while the policy was in force. (Plaintiff’s Exh.
#17, section entitled “LIFE INSURANCE” at p. 7)

5. On or about December 10, 1984, Northwestern paid
to the plaintiff the sum of one hundred five thou-
sand dollars ($105,000), plus interest from July 11,
1984, as the ordinary death benefit under group
policy No. GL-18090-4. (Stipulation #38 4 3)

6. Group life seo No. GL-18090-4 provides for the
payment of accidental death and dismemberment
insurance benefits if the insured losses [sic] his life,
limb or sight due to accidental injury while the

10.

11.

12.

6b

policy was in force. (Plaintiff's Exh. 17, section enti-
tled “LIFE INSURANCE” at p. 10)

Group life policy No. GL-18090-4 provides that acci-
dental death and dismemberment insurance benefits
will not be paid “for loss directly or indirectly
caused by .. . (s)uicide or intentionally self-inflicted
injury, whether [insured is] sane or insane.” (Plain-
tiff’s Exh. #17, section entitled “LIFE INSURANCE”
at p. 10)

Group life policy No. GL-18090-4 defines “accident”
as “an unexpected, violent and sudden event.”
(Plaintiff’s Exh. 317, section entitled “LIFE INSUR-
ANCE” at p. 13)

Group life policy No. GL-18090-4 provides for an
accidental death and dismemberment insurance ben-
efit of one hundred five thousand dollars if Mr.
Wickman’s death was due to accidental injury.
(Amended Complaint #33 4 10; Answer To
Amended Complaint #34 { 10)

By letter dated July 16, 1985, plaintiff submitted to
Northwestern a supplemental proof of loss in con-
nection with a claim for the accidental death and
dismemberment insurance benefit under group life
policy No. GL-18090-4. (#38 4 4; Plaintiff’s Exh. #1)

The plaintiff submitted to Northwestern, together
with the su aes proof of loss dated July 16,
1985, the following documents: a form entitled “Affi-
davit of Beneficiary” (Plaintiff's Exh. #2); a death
certificate (Plaintiff's Exh. #4); a newspaper article
entitled “Fall From Bridge Results In Death Of
Needham Man” (Plaintiff's Exh. #5); an obituary of
Paul P. Wickman (Plaintiff's Exh. #6); and a two-
page statement dated August 31, 1984 by Anne M.
Wickman, the decedent's sister (Plaintiff's Exh. #7).
(#38 Yq 5-10)

The original death certificate of Mr. Wickman dated
July 13, 1984 stated the cause of death to be: “Mas-
sive internal hemorrhage secondary to fracture -

13.

14.

15.

16.

17.

18.

19.

7b

dislocation of pelvis - caused by 90 foot fall from
bride (sic) - while in depressed mental state. Sui-
cide.” (Defendant’s exhibit #2)

The amended death certificate of Mr. Wickman
dated June 26, 1985 stated the cause of death to be:
“Massive internal hemorrage (sic) secondary to frac-
ture — dislocation of pelvis - caused by 90 foot fall
from bridge.” (Plaintiff’s Exh. #3)

An accidental death investigation report was sub-
mitted to Northwestern on or about November 27,
1984 by Northern Service Bureau, Ltd., a firm
engaged by Northwestern to investigate the circum-
stances of the death of Mr. Wickman. (Defendant’s
Exh. #14)

By letter dated December 12, 1985, Northwestern
denied the plaintiff's claim for accidental death and
dismemberment insurance benefits provided under
group life policy No. GL-18090-4. (#38 4 11; Plain-
tiff’s Exh. #21)

On July 11, 1984 at or around 4:00 P. M., Michael
Blanchette was driving southbound on Route 495 in
Middleborough, Massachusetts.

As Michael Blanchette approached a bridge near the
overpass of Route 105, he observed a parked car,
later identified as that of Mr. Wickman, in the right-
hand side breakdown lane with its flashers on.

As Michael Blanchette crossed the bridge, he
ubserved an elderly man, later identified as Mr.
Wickman, facing in a northerly direction standing on
the outside of the guard rail holding on with his
right hand.

The distance from the parked car in the breakdown
lane to the point on the bridge where Paul P. Wick-
man was holding on to the guard rail was approx-
imately 20 to 30 yards, one third of the length of the
bridge. (Plaintiff's exhibit #16)

8b

20. When Michael Blanchette looked again, Mr. Wick-
man was no —— holding on to the railing and was
on his way to the below the bridge.

21. The bridge upon which Michael Blanchette saw Mr.
Wickman passes over railroad tracks approximately
40 to 50 feet below. (Plaintiff’s Exhs. ##13, 15; Defen-
dant’s Exhs. ## 8, 9, 10)

22. Michael Blanchette stopped his automobile, climbed
down the embankment and found Mr. Wickman
lying on the railroad tracks below the bridge.

23. The bridge upon which Michael Blanchette saw Mr.
Wickman has a guard rail that is approximately 3 to
4 feet high with no outside lip or ledge. (Defendant's
Exh. #10)

24. Mr. Wickman was taken by ambulance to St. Luke’s
Hospital in Middleborough, Massachusetts. (Plain-
tiff’s Exhs. ##9, 10)

25. Mr. Wickman was transferred to Brockton Hospital
where he died in the Emergency Room. (Plaintiff's
Exh. #10)

26. Mr. Wickman’s car was towed from the breakdown
lane to a secure lot by the Massachusetts State Police
on July 11, 1984.

27. Mr. Wickman’s car had no mechanical problems
when it was retrieved by his family on July 12, 1984.

CONCLUSIONS OF LAW

As the Court indicated to counsel at the post-trial
closing arguments hearing, the facts of this case admit to
no other conclusion but that Mr. Wickman intended to
put himself on the outside of the guard rail on the bridge
over the railroad tracks on Route 495 in Middleborough,
Massachusetts on July 11, 1984. Mr. Wickman was
observed by Michael Blanchette 20 to 30 yards away from

9b

his car on the bridge at a point where the overpass
spanned railroad tracks 40 to 50 feet below. Aside from
the fact that his car was later found to be in working
order, the suggestion that Mr. Wickman was on the bridge
in search of aid for his broken down vehicle and some-
how found himself on the outside of the guard rail is
quite simply not plausible due to the physical structure of
the bridge itself.

There is no outside ledge or even lip upon which Mr.
Wickman could have been walking to look for help. As
the photographs admitted as exhibits at trial show, to
stand on the outside of the guard rail a person’s feet
would literally have to be directly under the rail. The
guard rail itself at the point where the bridge crosses the
railroad tracks is 3 to 4 feet high, constructed of intermit-
tent vertical posts crossed by three continuous horizontal
railings. It is not reasonable to believe that Mr. Wickman
either fell over or through the guard rail, or otherwise
came to be on the outside through mistake or inadver-
tence. Clearly, it would take a conscious effort to climb
over or through the guard rail on the bridge. Thus, this is
a case in which the insured was injured as a consequence
of his own intentional act. The issue to be determined is
whether Mr. Wickman’s injury and death resulted from
an accident within the meaning of the group life insur-
ance policy under the law.

The term “accident” in the insurance policy is
defined as “an unexpected, external, violent and sudden
event.” This definition is similar to that employed by the
courts in Massachusetts, i.e., “[iJn its common significa-
tion the word (accident) means an unexpected happening

10b

without intention or design.” Quincy Mutual Fire Insur-
ance Company v. Abernathy, 393 Mass. 81, 83, 469 N.E.2d
797, 799 (1984), quoting from Beacon Textiles Corp. v.
Employers Mut. Liab. Ins. Co., 355 Mass. 643, 646, 246
N.E.2d 671 (1969). Under Massachusetts law, the term
“accident” has been broadly construed. The Supreme
Judicial Court

. . . consistently has stated that the resulting
injury which ensues from the volitional act of an
insured is still an “accident” within the meaning
of an insurance policy if the insured does not
specifically intend to cause the eer harm
or is not substantially certain that such harm
will occur.

Quincy Mutual Fire Insurance Company v. Abernathy, supra,
393 Mass. at 89, 469 N.E.2d at 799. (citation omitted)

Under this standard, the fact that Mr. Wickman ultimately
died from injuries ensuing from his own volitional act
does not preclude the possibility that the death was acci-
dental.

As the Court proposed to counsel, there are only
three possible scenarios to explain what occurred on the
bridge in the circumstances of this case. First, Mr. Wick-
man intentionally put himself outside the guard rail and
thereafter let go intending to kill himself. Given these
facts, there would clearly be no right to accidental death
benefits. Second, Mr. Wickman intentionally put himself
outside the guard rail and thereafter let go intending to
cause himself serious bodily injury. Again, there would
be no insurance coverage in these circumstances under
the terms of the policy. The third possibility is that Mr.
Wickman intentionally put himself outside the guard rail

11b

and through some mistake or inadvertence fell to the
ground below. In this last possibility, Mr. Wickman would
not have any specific intent to injure or kill himself, and,
under the law, the resultant death could still be an acci-
dent.

But even assuming that Mr. Wickman had no specific
intent to injure or kill himself, the Court finds that he
intentionally put himself outside the guard rail on the
bridge over the railroad tracks and, further, that the harm
that befell him was substantially certain to happen. This
is not a case wherein the insured intentionally did an act
with some unexpected result. See, e.g., Dow v. United
States Fidelity & Guaranty Co., 297 Mass. 34, 7 N.E.2d 426
(1937) (insured died as a result of immersion into scald-
ing bath water). Here, it was reasonably foreseeable to
the insured that in climbing over a 3 to 4 foot guard rail
with no ledge on a bridge spanning 30 to 40 feet above a
set of railroad tracks that he had placed himself in such a
position that serious bodily injury was substantially
likely to occur. The injuries that did result, if not the
death, were of the type which would be expected to
occur. The Court finds as a matter of law that the insured
did not lose his life due to an accident as that term is
defined under the policy and Massachusetts law.

The facts of the instant case are similar to those in
Kinavey v. Prudential Ins. Co. of America, 27 A.2d 286 (Pa.,
1942). In Kinavey, the insured was a 22-year old man who
fell from a bridge into the Monogahela River and was
drowned. The evidence showed that one evening the
insured became intoxicated anc was staggering but
speaking coherently. Two friends offered to accompany
him home, and all three proceeded to walk across the

12b

bridge. After reaching the far end of the bridge approx-
imately one mile away, the insured left his friends,
crossed the four lands of the bridge to the other side, and
proceeded back in the direction from which they had just
come. The insured climbed over “a substantial metal
railing 44 inches high” onto a 4 inch ledge on the outside
of the rail. He proceeded to perform various stunts on
this ledge until he ultimately lost his balance, fell into the
river and drowned.

The court assumed that the death was not inten-
tional, there being no facts or circumstances indicative of
suicide. However, recovery of accidental death benefits
was denied based on

. the fact that death was not an unusual or
unexpected result of the voluntary means
employed. An entirely different situation would
have been presented if the iron railing had given
— or the ledge upon which he was standing

crumbled cndar his feet or some greasy
substance had caused his feet to slip. No unfore-
seen element combined with the deceased's acts;
no agency independent of his own acts contrib-
uted to his death. His every act was volunta
and though his behavior was extraordinary, fal-
ling from the bridge was a foreseeable probable
vest naturally following from his rec act.

Kinavey v. Prudential Ins. Co. of America, supra, 27 A.2d at
288. Like the insured in Kinavey, Mr. Wickman votuntarily
placed himself in such a position of danger “that falling
from the bridge was not only foreseeable by him, but was
almost inevitable.” Id. at 287.

Given the physical characteristics of the bridge, ie.,
the height and substance of the guard rail, the absence of

13b

an outside ledge, the distance to the ground below, the
Court finds that Mr. Wickman knew or should have
known that serious bodily injury or death was a probable
consequence substantially likely to occur as a result of his
volitional act in placing himself on the outside of the
guard rail and hanging on with one hand. See, e.g. Runge
v. Metropolitan Life Insurance Company, 537 F.2d 1157, 1159
(4 Cir., 1976); Sigler v. Mutual Benefit Life Insurance Com-
pany, 663 F.2d 49, 49 (8 Cir., 1981); International Underwri-
ters, Inc. v. Home Insurance Company, 662 F.2d 1084, 1087 (4
Cir., 1981). Mr. Wickman’s loss of life was not due to an
accident as that term is defined in group policy No.
GL-18090-4 or under the law.

In sum, the Court finds that the plaintiff has failed to

prove by a preponderance of the evidence that her hus-
band’s death was accidental.

CONCLUSION

These findings of fact and conclusions of law dispose
of all the plaintiff's claims. Northwestern has neither
breached it contract or [sic] breached its fiduciary duties
with respect to the denial of accidental death benefits to
Mrs. Wickman. Judgment shall enter for the defendant in
this cause.

/s/ Robert B. Collin
ROBERT -B-COLLINGS

United States Magistrate

October 23, 1989.

14b

United States District Court
DISTRICT OF MASSACHUSETTS

MARY JANE WICKMAN JUDGMENT
V IN A
4 CIVIL CASE

NORTHWESTERN NATIONAL
LIFE INSURANCE COMPANY. CASE NUMBER:
86-1895-WF

COLLINGS, U.S.M.

{[ ] Jury Verdict. This action came before the Court for
a trial by jury. The issues have been tried and the
jury has rendered its verdict.

[XX] Decision by Court. This action came to trial or
hearing before the Court. The issues have been
tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

Judgment for the defendant; costs to defendant.

October 23, 1989 ROBERT J. SMITH, JR.

Date Clerk

/s/ Jean M. Pandolfo
Jean M. Pandolfo
(By) Deputy Clerk

le

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MARY JANE WICKMAN
V.

NORTHWESTERN NATIONAL
LIFE INSURANCE COMPANY

CIVIL ACTION
NO. 86-1895-WF

MEMORANDUM ON DEFENDANT’S MOTION TO
DISMISS (#18)

COLLINGS, U.S.M.

This action was instituted by the plaintiff, Mary Jane
Wickman (hereinafter “Mrs. Wickman”), as a named ben-
eficiary of a group policy of insurance in effect at the time
of death of her husband, Paul P. Wickman (hereinafter
“Mr. Wickman”). The policy of insurance, group policy
number GL-19090-4, had been issued by the defendant
Northwestern National Life Insurance Company (here-
inafter “Northwestern”) to the Hysol Division of Dexter
Corporation, Mr. Wickman’s employer at the time of his
demise. The premiums in payment of this policy were
paid to Northwestern by the Dexter Corporation, Hysol
Division, and its employees. The policy insured Mr. Wick-
man for life insurance and accidental death benefits.
Under the terms of the policy, Northwestern agreed to
pay the named beneficiary, in this instance Mrs. Wick-
man, one hundred five thousand dollars if Mr. Wickman
died while the policy was in force and, further, to double
that amount if Mr. Wickman’s death was the result of an
accident.

Following Mr. Wickman’s death on July 11, 1984,
Mrs. Wickma submitted a notice of claim and proof of

2c

loss to Northwestern seeking payment for ordinary death
benefits. The claim was honored, and Northwestern paid
Mrs. Wickman one hundred five thousand dollars in sat-
isfaction. Thereafter, Mrs. Wickman submitted a supple-
mental proof of loss to establish that Mr. Wickman’s
death was caused by accidental means as defined in the
insurance policy and that, as a result, she was entitled to
accidental death benefits in the sum of an additional one
hundred five thousands dollars. Northwesterns’ denial of
that claim for accidental death benefits precipitated the
instant litigation.!

Mrs. Wickman’s complaint alleges that Northwestern
breached the contract of insurance by failing to pay her
the accidental death benefits under the terms of the
group insurance policy. Jurisdiction is based on diversity
of citizenship. Northwestern has moved to dismiss the
complaint on the grounds that Mrs. Wickman’s breach of
contract claim which is based on state law is pre-empted
by the provisions of the Employee Retirement Income
Security Act of 1974 (ERISA).?

1 The parties have consented to have the case referred to
the undersigned for all purposes, including trial and the entry
of judgment, pursuant to 28 U.S.C. § 636(c) and the District
Judge to whom the case is assigned has entered an order of
reference pursuant to the consent.

2 In addition to its Memorandum Of Law In Support Of Its
Motion To Dismiss (#20), Northwestern has submitted the
Affidavit of James R. Hanson (#19) to which a copy of the
group policy of insurance, GL-18090-4, is attached. Mrs. Wick-
man has raised no objection to the Court considering either the
affidavit or the attachment thereto. This is not surprising since

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3¢

Whether a common law cause of action for breach of
contract is pre-empted by ERISA depends on whether it
“relate[s] to . . . [an] employee benefits plan.” ERISA,
§ 514(a), 29 U.S.C. § 1144(a). The Supreme Court has
recently determined that a claimant’s common law con-
tract and torts claims asserting the improper processing
of a claim for benefits similar to that raised by the plain-
tiff herein did “relate to [an] employee benefit plan” and,
therefore, were pre-empted by § 514(a) and not saved by
§ 514(b)(2)(A),

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2991%3A1. Public record. Not legal advice.