Nancy M. LENNON, Plaintiff-Appellee, v. METROPOLITAN LIFE INSURANCE CO., Defendant-Appellant, 504 F.3d 617

ROGERS, J., delivered the opinion of the court. BOGGS, C.J. (pp. 624-26), delivered a separate opinion concurring in the judgment. CLAY, J. (pp. 626-33), delivered a separate dissenting opinion. OPINION ROGERS, Circuit Judge. The question in this case is whether it is arbitrary and capricious for an ERISA plan administrator to deny Personal Accident Insurance benefits to the beneficiary of an insured who died as result of his own drunk driving. The insurance policy at issue covered “accidents” but did not specifically define the term to exclude deaths that resulted from an insured driver’s drunk driving.

The district court held that, although the beneficiary, David Lennon, drove with a blood-alcohol level three times the legal limit, he did not reasonably expect to lose his life and that his death was thus accidental. The district court therefore ruled against MetLife and in favor of Lennon’s beneficiary, his mother Nancy, on her ERISA claim. Because MetLife could reasonably conclude that death caused by grossly negligent drunk driving is not accidental, it was not arbitrary and capricious for MetLife to do so. We therefore reverse. The result of drunk driving in this case was sad indeed.

On June 2, 2003, Lennon, a young General Motors Acceptance Corporation accountant, drove his 2003 Chevrolet Trailblazer for the last time. At approximately 2:30 in the morning, Lennon’s car flew down a dry and well-lit divided boulevard in Pontiac, Michigan into a wall twenty feet away, and police found Lennon with no pulse. He died two days later. The evidence shows that Lennon was under the influence of alcohol at the time of the accident. According to a test that the hospital conducted, Lennon’s alcohol plasma level was 0.372 mg/dl, which is the equivalent of a blood-alcohol level of 0.321.

The results show that Lennon’s blood-alcohol level was more than three times the legal blood-alcohol limit of 0.10 that Michigan had in effect at the time. See MCL § 257.625(l)(b). Within a month of Lennon’s death, Lennon’s mother, the plaintiff in this lawsuit, sought to recover Personal Accident Insurance benefits from MetLife. MetLife denied payments for Lennon’s Personal Accident Insurance, although it paid to Lennon’s beneficiary proceeds from Lennon’s basic and option life insurance.

The relevant portion of MetLife’s Personal Accident Insurance policy provided: If, while insured for Personal Accident Insurance, an [insured] sustains accidental bodily injuries, and within one year thereafter shall have suffered loss of life ... as a direct result of such bodily injuries independently of all other causes, [MetLife] shall pay the benefit specified for such Losses. (emphasis added).

The policy also provided an exclusion: In no case shall payment be made for any loss which is contributed to or caused, wholly or partly, directly, or indirectly, by ... suicide, attempted suicide or self-inflicted injury while sane or insane. The policy provided for other exclusions, not relevant here.

MetLife’s letter denying benefits explained that Lennon’s drinking “impair[ed his] judgment and physical and mental reactions” and that Lennon’s blood-alcohol level was three times the legal limit. “The act of driving impaired,” the letter read, “rendered the infliction of serious injury or death reasonably foreseeable and, hence, not accidental as contemplated by the GM Plan.” MetLife therefore concluded that Lennon’s death was not “directly the result of accidental injuries, independent! ] of all other causes.” MetLife also concluded that “the mental and physical impairments caused by the voluntary consumption of alcohol ... constitute intentional self-inflicted injuries under the GM Plan [exclusion].” In December 2003, the plaintiff challenged MetLife’s denial of Personal Accident Insurance coverage, and on May 26, 2004, Met Life upheld its earlier decision.

The record, however, contains only one document for the period from December 2003 to May 2004. That document noted, “New revisions to [Michigan’s blood-alcohol] law,” and it instructed a MetLife employee to “attach another copy of the [December] 30 ... letter to the att[orne]y.” At the time that MetLife denied the plaintiffs challenge to MetLife’s initial decision, it had the police report, medical examiner’s records, and the Alcohol Plasma results.

In its May 26, 2004, letter (which Met-Life did not release until June 8, 2004) MetLife noted: The Death Certificate lists the cause of death as “Blunt Force Head and Neck Trauma and Complications.” The State of Michigan Traffic Crash Report ... states that [Lennon] lost control of his vehicle while crossing Woodward. [Lennon’s] vehicle was seen coming from the center median and then hitting the eastbound curb causing the vehicle to become airborne and strike a brick wall....

The Medical Examiner’s report states that [Lennon] was under the influence of alcohol and recorded a blood alcohol level of .37% [which was more than] the legal limit under Michigan law.

The letter also reiterated the two grounds for denying Lennon coverage: (1) “the act of driving while so impaired rendered the infliction of serious injury or death reasonably foreseeable, and, hence, not accidental as contemplated by the plan,” and (2) “the mental and physical impairments caused by the voluntary consumption of excessive amounts of alcohol constitute intentional self-inflicted injuries under the plan.” Finally, the letter cited a series of cases in which courts found that drunk driving does not constitute an “accident” for ERISA purposes.

The plaintiff challenged MetLife’s decision in federal district court, and the district court ruled against MetLife. The district court, quoting West v.

Aetna Life Insurance Co., 171 F.Supp.2d 856, 904 (N.D.Iowa 2001), noted that a person “is far more likely to be arrested for driving while intoxicated than to die or be injured in an alcohol related automobile crash, and far more likely to arrive home than to be either arrested, injured, or killed,” and concluded that MetLife acted in an arbitrary and capricious manner by relying solely on Lennon’s blood-alcohol level to determine that his death was not an accident. Finally, the district court rejected MetLife’s argument that Lennon’s death was a result of a self-inflicted injury.

MetLife did not act arbitrarily and capriciously when it found that Lennon did not die as a result of an “accident” under the plan where Lennon’s death resulted from his driving with a blood-alcohol level three times the legal limit. Because General Motors’ policy with MetLife conferred discretionary authority to MetLife as an ERISA fiduciary to interpret terms of the plan, this court reviews MetLife’s decisions under an arbitrary-and-capricious standard. Whitaker v. Hartford Life & Accident Ins. Co., 404 F.3d 947, 949 (6th Cir.2005).

The record in this case establishes that Lennon’s behavior was, to borrow a term sometimes used in tort law, grossly negligent. Lennon broke the law by driving with a blood-alcohol level three times the legal limit, knowing that his drunk and severely impaired driving created a significant risk of bodily harm or death to others and to himself, and the precautions that would eliminate or reduce this risk (e.g., taking a taxi, or staying at a nearby hotel or with a friend) involved burdens that are so slight relative to the magnitude of the risk as to demonstrate Lennon’s indifference to the risk.

See generally Restatement (Third) of ToRts § 2 (Proposed Final Draft No. 1, 2005). As a prominent tort law treatise explains: Gross negligence can be used to mean what it says — a high, though unspecified degree of negligence. Presumably this means conduct that is appreciably more risky, or less beneficial, than conduct qualifying as ordinary negligence.... The idea of reckless, willful or wanton misconduct is similar in that the risk-utility balance strongly disfavors the defendant’s conduct — the risk was high, or very serious harm was threatened, or the cost of avoiding the danger was very low....

The defendant is guilty of reckless, willful or wanton misconduct only if he was conscious of the risk or had specific reason to know about it and proceeded without concern for the safety of others.... Although reckless, willful, or wanton misconduct is not the same as intentional harm, in extreme cases courts may treat wanton misconduct more like an intentional tort than like negligence. Dan R. Dobbs, The Law of Torts § 147, at 350-51 (2000).

If tort law can treat such conduct the same way it treats intentional conduct, it is not arbitrary and capricious for an ERISA plan administrator to treat such conduct as not accidental under a policy that only covers accidents. Driving while very drunk can certainly be placed in this category of activity. As the Seventh Circuit explained, albeit in a different context: Drunk driving is a reckless act, perhaps

an act of gross negligence. Any drunk driver who takes to the road should know he runs a risk of injuring another person [or himself]. The extent of the risk will of course vary from case to case, depending on how intoxicated the driver is, how far he drives, how fast he drives, and how many other drivers and pedestrians are sharing the road with him. United States v. Rutherford, 54 F.3d 370, 376 (7th Cir.1995); cf. United States v. Veach, 455 F.3d 628, 636-37 (6th Cir.2006) (prior conviction for drunk driving is a “crime of violence” for federal sentencing purposes).

This case involved facts — Lennon’s extremely high blood-alcohol content, the manner in which Lennon’s car flew off the road, the lack of an alternative explanation for the death, and Lennon’s driving the wrong way down the street — that rendered at least reasonable MetLife’s conclusions that Lennon did not die as a result of an “accident” under the Plan. Our conclusion that MetLife did not decide arbitrarily and capriciously is consistent with this court’s opinion in Cates v. Metropolitan Life Insurance Co., No. 96-6600, 1998 WL 385897 (6th Cir. June 30, 1998).

In Cates, this court, albeit in an unpublished opinion, found that MetLife did not act arbitrarily and capriciously when MetLife denied benefits to an insured’s beneficiary on the grounds that the insured’s “act of driving while so impaired rendered the infliction of [serious] injury or death reasonably foreseeable and, hence, not accidental as contemplated by the plan.” Id. at *3. Cates’ blood-alcohol level was 0.18%, almost twice the Tennessee limit of 0.10%, id. at *1, and the terms of Cates’ insurance plan were similar to those at issue in this case. Cates v. Metro. Life Ins.

Co., 14 F.Supp.2d 1024, 1025 (E.D.Tenn.1996). The district court (and this court when it incorporated the district court opinion, Cates, 1998 WL 385897, at *3) held that MetLife’s decision was not arbitrary and capricious because several federal courts “reviewing ERISA cases have recognized that foreseeable harm resulting from an insured’s intentional actions is not accidental.” Cates, 14 F.Supp.2d at 1027. Although this court in Cates did not provide an extensive analysis of its reasoning, other courts of appeals have reached the same result after more extensive discussions. In Eckelberry v.

Reliastar Life Insurance Co., 469 F.3d 340 (4th Cir.2006), for example, the Fourth Circuit held that an ERISA fiduciary did not act unreasonably when it denied benefits to an insured beneficiary after the insured died from driving with a blood-alcohol level of O. 15, which was 50% higher than the legal limit. Id. at 342.

The court reasoned that, regardless of whether the standard for non-accident was “high likelihood” of injury or “reasonable foreseeability” of injury, “federal courts have found with near universal accord that alcohol-related injuries and deaths are not ‘accidental’ under insurance contracts governed by ERISA.” Id. at 344 — 45 (citing cases). They do so because “the hazards of drinking and driving are widely known and widely publicized [and] the insured should have known that driving while intoxicated was highly likely to result in death or bodily harm.” Id. at 345 (citation and quotation marks omitted).

In Cozzie v. Metropolitan Life Insurance Co., 140 F.3d 1104 (7th Cir.1998), the Seventh Circuit held that MetLife did not act arbitrarily and capriciously when it denied benefits after an insured died with a blood-alcohol level of 0.252. Id. at 1106. The MetLife plan at issue did not define “accident” and the court held that MetLife reasonably defined “accident” as “not reasonably foreseeable.” Id. at 1108-09. Of note, the court stated that “MetLife’s

interpretation is rational because it is consistent with the goals of the plan [namely] ... to provide ... insurance against the tragedy of unexpected death by providing additional benefits for those who experience such a loss and all its consequent tremors.” Id. at 1110. Denying benefits to some, the court reasoned, “ensurefs] that payments are reserved for those who truly fall within the terms of the policy.” Id. Indeed, the very number of cases holding similarly to Eckelberry and Cozzie independently supports the conclusion that MetLife’s determination was not arbitrary and capricious. See Poeppel v.

Hartford Ins. Co., 87 Fed.Appx. 885, 886 (4th Cir.2004); Gilbert v. Estate of Cox, No. 05-283-JBC, 2007 WL 2023576, at *3 (E.D.Ky. July 10, 2007); Richardson v. Mutual of Omaha Ins. Co., No. 3:06CV-197-H, 2007 WL 1577942, at *3 (W.D.Ky. May 31, 2007); Weatherall v. Reliastar Life Ins. Co., 398 F.Supp.2d 918, 924 (W.D.Wis.2005); Nelson v. Sun Life Assurance Co. of Canada, 962 F.Supp. 1010, 1012 (W.D.Mich.1997). We nevertheless recognize the logical force of the district court’s analysis in this case.

Driving drunk is stupidly risky, but perhaps not statistically more risky than actions we might be loath to condemn, such as test piloting or grabbing a child from in front of an oncoming train. We do not doubt the accuracy of the observation that a person “is far more likely to be arrested for driving while intoxicated than to die or be injured in an alcohol-related automobile crash, and far more likely to arrive home than to be either arrested, injured, or killed.” See West, 171 F.Supp.2d at 904.

Lennon also notes, “one out of every 9,128 alcohol-impaired trips results in a crash that causes a fatality.” See Eckelberry v. ReliaStar Life Ins. Co., 402 F.Supp.2d 704, 712 (S.D.W.Va.2005). One is more likely to be struck by lightning, according to the plaintiff, than to die as a result of one’s own drunk driving. Id.

One might well question the relevance of such ratios to a case like the present one where there is evidence that Lennon’s blood-alcohol level was 0.321, over three times the legal limit, so that Lennon’s trip was not merely “alcohol-impaired.” We can take judicial notice of the fairly obvious scientific fact that as blood-alcohol levels rise, “so does the risk of being involved in a fatal crash.” Nat’l Hwy. Traffic Safety Admin., U.S. Dep’t of Transp., Setting Limits, Saving Lives: The Case for 0.08 BAC Laws, DOT HS 809 241, Apr. 2001, at Sec. TV; see also http:// en.wikipedia.org/wiki/Blood — alcohol.

Thus, drivers with blood-alcohol levels above the legal limit as a group are far more likely to arrive home safely than drivers who are extremely drunk. See Stamp v. Metro. Life Ins. Co., 466 F.Supp.2d 422, 432 (D.R.I.2006) (“The statistics ... are meaningless in this context. ... They do not consider ... the degree of his intoxication.”). We assume for the purposes of argument, however, that persons who drive while very drunk may have a better than even, or even a pretty good, chance of not being injured. This does not keep the activity from being reckless.

The same could be said, after all, of a person playing Russian roulette, who may have a 5 out of 6 chance of not being injured. What is dispositive, however, is that at some point the high likelihood of risk and the extensive degree of harm risked, weighed against the lack of social utility of the activity, become not marginally but so overwhelmingly disproportionate that the resultant injury may be outside a definition of “accidental” that is not unreasonably narrow.

Of course, “accidental” could perhaps be more broadly defined to include dangerous activity as long as injury is not intended or substantially certain. Drunk driving injuries might fit within such a definition. If our review were de novo, this possibility would require serious consideration. But under arbitrary-and-capricious review we need not decide what is the best reading of words in the insurance policy, but whether the plan administrator’s

interpretation is arbitrary. Interpreting the result of reckless drunk driving as not “accidental” for the driver is not arbitrary. We do not need to go further in this case. In particular, we do not reach the question of whether a fiduciary can reasonably deny “accidental” benefits for injury that results from any negligent or any illegal behavior, or from driving while only somewhat impaired.

See Eckelberry, 469 F.3d at 347 (distinguishing drunk driving from driving while fiddling with the radio dial); Cozzie, 140 F.3d at 1110 (“We do not mean to suggest that MetLife could sustain a determination that all deaths that are causally related to the ingestion of alcohol, even in violation of law, could reasonably be construed as not accidental.”); cf.

Restatement (Second) of Tokts § 500 emt. e (1965) (“The mere fact that certain precautions are required by a statute ... does not of itself make the intentional omission of the statutory precaution reckless indifference [unless] the precautions required [are] such that their omission will be recognized as involving a high degree of probability that serious harm will result.”). Nor does today’s holding extend to risky activities that may have social value greater than driving drunk, such as skiing, or driving over the speed limit to get a woman in labor to the hospital.

Instead, the conclusion is only that because Lennon’s conduct constituted reckless and entirely unwarranted risk to himself, it was not arbitrary and capricious for MetLife to treat the injury as nonaccidental under the terms of its policy. Because it was not arbitrary and capricious for MetLife to find that Lennon’s death was not “accidental,” we need not reach MetLife’s argument that Lennon’s death was a result of self-inflicted injury. For the foregoing reasons, the judgment of the district court is reversed. . The parties both rely on a police diagram of the accident scene, but dispute its meaning.

MetLife argues that the diagram shows that Lennon drove the wrong way down a one-way portion of Woodward Avenue, while the plaintiff argues that the diagram undermines Met-Life's

interpretation. Because the diagram clearly shows an arrow indicating the direction of Lennon’s vehicle going down the street in the opposite direction of an arrow indicating "One Way,” MetLife’s

interpretation is more consistent with the drawing. . The plaintiff argues that the administrative record did not establish a conversion factor between alcohol-plasma levels and blood-alcohol levels. The plaintiff, however, does not argue that the conversion is incorrect. Because she merely argues that the record lacks evidence that shows that the conversion is correct but does not dispute the correctness of the conversion, we will assume that Met-Life’s calculations are correct. . The plaintiff points to three pieces of evidence to suggest that alcohol was not responsible for Lennon's death.

First, the police report from the accident did not indicate whether alcohol was responsible for the accident, and an officer wrote in the police report that he "did not smell an odor of intoxication on Lennon or in his vehicle at the scene." Second, a June 3, 2003, report indicated that the tests did not detect ethyl alcohol or methyl alcohol. Third, the death certificate indicated that Lennon died as a result of an "accident” that caused blunt force head and neck trauma, and complications; the death certificate did not list the cause of death as drunk driving or alcohol.

None of this evidence directly undermines MetLife’s conclusion that Lennon’s blood-alcohol level was three times the legal limit. The responding officer's report, for example, does not directly contradict the laboratory results because an officer’s failure to detect or record the presence of alcohol does not mean that alcohol was not present. In addition, the plaintiff does not explain how the lack of ethyl alcohol or methyl alcohol contradicts the other blood-alcohol test.

Finally, the medical examiner’s preliminary conclusions as to the cause of death do not preclude a subsequent finding that Lennon suffered the "blunt force” as a result of his drunk driving. . There is some record evidence that MetLife adopted a form letter when it initially denied benefits in this case. The record contains a hand-written note instructing a MetLife employee to "Pl[ea]s[e] see sample DWI denial letter. Use it for a guide.” . The plaintiff initially argues that the plain language of the plan requires MetLife to provide benefits in this case.

MetLife's plan provided that it would pay an insured who sustained "accidental bodily injuries and within one year ... suffer[s] loss of life ... as a direct result of such bodily injuries independently of all other causes.” (emphasis added).

Plaintiff argues that the term ‘‘accidental” only modifies ‘‘bodily injuries” and that the term does not modify "loss of life.” To succeed with this argument, however, the plaintiff (as she implicitly recognizes) must prove that the bodily injuries in this case were not “accidental,” an issue resolved below, and the beneficiary’s first argument collapses into her main argument. .

The concurrence unfortunately misreads this opinion as “addressing] the question whether it was correct, as a matter of substantive law, for MetLife to deny benefits here, rather than the question whether or not it was merely arbitrary and capricious to do so.” As a fair reading of this opinion — and particularly of the statement here in the text — shows, I would base affirmance entirely on the arbitrary-and-capricious scope of review, and reserve judgment on the correctness (without regard to deference) of treating the incident as an accident under the policy.

Moreover, while the concurrence would rely only on other federal court cases, which in turn rely simply on likelihood of harm, to uphold the insurance company's determination under the arbitrary-and-capricious standard, such reliance without more implies that high likelihood of injury is sufficient to uphold denial of accident insurance whenever the arbitrary-and-capricious standard applies. The instant opinion is intended to avoid making that implication in favor of the insurance companies.

There may be cases — different from the instant case — in which high likelihood of injury is not sufficient to say that activity was not accidental. We need not go beyond reckless conduct to conduct that is simply "highly likely” to cause injury, and I would not do so.