Thomas KOVACH et al., Plaintiffs-Appellants, v. ZURICH AMERICAN INSURANCE COMPANY, Defendant-Appellee, 587 F.3d 323

OPINION RONALD LEE GILMAN, Circuit Judge. On November 7, 2005, Thomas Kovach was riding his motorcycle while intoxicated, ran a stop sign, and collided with another vehicle in the intersection. He sustained severe injuries that led to the amputation of his left leg below the knee. Mr. Kovach was insured under an accidental death and dismemberment (AD &

D) insurance policy provided by his wife’s employer (hereafter referred to as the Plan). He and his wife Rebecca filed a claim with Zurich American Insurance Company, the administrator of the Plan, for dismemberment benefits. Zurich denied the Kovaches’ claim after determining that Mr. Kovach’s injuries were caused by his drunk driving and therefore not covered as an “accidental” occurrence under the Plan. The Kovaches brought a claim under the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461 (ERISA), that challenged Zurich’s denial of coverage. Applying a deferential arbitrary-andcaprieious standard, the district court granted

summary judgment in favor of Zurich. On appeal, the Kovaches argue that (1) the district court should have applied a de novo standard of review because Zurich improperly delegated its decision-making authority to an outside lawyer, and

(2) Zurich’s denial of their claim was improper under either standard. Although we reject the Kovaches’ first argument, we agree with their second. We therefore REVERSE the judgment of the district court and REMAND the case for the entry of a judgment in favor of the Kovaches. I. BACKGROUND A. The AD & D policy Rebecca Kovach enrolled in the Plan through her employer, KeyCorp. Zurich, as the Plan Administrator, was responsible for the processing and payment of claims under the Plan and was the claims fiduciary.

The AD & D coverage paid benefits for losses, including dismemberment, resulting from an injury according to the following definition: Injury means a bodily injury directly caused by accidental means which is independent of all other causes, results from a Hazard, and occurs while the Covered Person is insured under this Policy. Although the term “accidental” is not defined, the Plan includes several explicit exclusions, including the following: A loss shall not be a Covered Loss if it is caused by, contributed to, or resulted from: 1. Suicide, attempted suicide, or a purposeful self-inflicted wound; 7.

Skydiving, parasailing, hangglinding [sic], bungee-jumping, or any similar activity.... Mrs. Kovach’s policy provided for up to $250,000 of coverage. In the case of an amputated limb, the policy paid $125,000. Mr. Kovach was covered under his wife’s policy. B. Mr. Kovach’s accident and resulting amputation On November 7, 2005, Mr. Kovach was involved in a collision while riding his motorcycle in Ravenna, Ohio. According to the crash report filed by the responding officer, Mr. Kovach ran a stop sign at a four-way intersection and was struck by a car. Mr.

Kovach was taken to Robinson Memorial Hospital in Portage County to be stabilized. Based on the severity of his injuries, he was then flown via Medivac helicopter to the Cleveland MetroHealth Medical Center. The doctors were unable to save Mr. Kovach’s left leg, which they amputated just below the knee. Mr. Kovach’s admission report from MetroHealth noted that a blood sample taken at Robinson Memorial Hospital after the accident and tested by an outside lab showed that Mr. Kovach had a blood alcohol content (BAC) of .148% — well over the legal limit in Ohio of .08%. See O.R.C. § 4511.19(A)(1).

MetroHealth took its own sample of Mr. Kovach’s blood sometime after his arrival. Those results showed a BAC of .085% and also showed the presence of opiates and benzodiazepines. The Kovaches contend that the positive drug test was due to medically administered valium and morphine given to Mr. Kovach after the accident, a contention not refuted by the record. C. Zurich’s denial of the Kovaches’ AD & D claim Mr. Kovach and his wife timely filed a dismemberment claim with Zurich in December 2005. The claim was based on Mr. Kovach’s below-the-knee amputation.

Zurich subsequently retained the services of CS Claims Group, Inc., an independent investigation Arm, to obtain Mr. Kovach’s hospital and toxicology records, as well as the records from all of his treating physicians. Upon receiving the MetroHealth records and noting Mr. Kovach’s BAC, Zurich decreased its reserves on the claim from $125,000 to $10 in anticipation that the claim would be denied. Zurich then hired an attorney, Daniel Maguire, to review Mr. Kovach’s file and to draft a denial letter based on the policy’s provisions if Maguire agreed that the claim should be denied.

The insurer’s letter to Maguire noted that Mr. Kovach “was the operator of a motorcycle that appears to have run a stop sign and hit another vehicle in the intersection ... [and] was intoxicated at the time of loss.” Maguire agreed with Zurich’s inclination that the claim should be denied and prepared an opinion letter that discussed the applicable caselaw, concluding that no benefits were payable. Zurich subsequently authorized a denial of the benefits. It sent a denial letter to the Kovaches in March 2006 using language taken from Maguire’s opinion letter.

The denial letter explained that Zurich had concluded that Mr. Kovach’s injury was not due to an “accident” under the terms of the Plan because Mr. Kovach (

a) was driving with almost twice the legal BAC, (

b) had tested positive for opiates and benzodiazepines, and (

c) had, according to the police officer responding to the accident, run a stop sign and thereby initiated the crash. Zurich thus reasoned that the injury was a reasonably foreseeable consequence of driving while under the influence of alcohol and possibly drugs. Citing several federal decisions upholding the denial of AD & D benefits under allegedly similar circumstances, Zurich also concluded that the facts supported the application of the policy’s self-inflicted-wound exclusion. The Kovaches timely appealed Zurich’s initial denial of the claim to the insurer’s ERISA Review Committee.

They submitted what they characterized as “newly discovered relevant evidence” in the form of Mr. Kovach’s affidavit, which asserted that the other driver, not he, ran the stop sign. Zurich responded by clarifying that the Kovaches were not presenting newly discovered evidence, but rather a different version of the events surrounding the incident. Zurich nevertheless noted that it had decided to stay the appeal in order to clarify the issue of which party was at fault for the collision.

To investigate the fault issue, Zurich again retained CS Claims Group, Inc. to obtain the Ravenna Police Department’s final Traffic Crash Report. The report confirmed that Kovach had been cited for a stop-sign violation and had tested positive for drugs (based on the MetroHealth test results). Zurich had previously seen only the initial accident report, which lacked these details. After reviewing this information, Zurich’s ERISA Review Committee informed the Kovaches’ counsel that it had affirmed the denial of benefits. D.

The lawsuit The Kovaches filed a complaint in the United States District Court for the Northern District of Ohio in August 2007. They named both Zurich and Mrs. Kovach’s employer, KeyCorp, as defendants. KeyCorp was dismissed as a defendant shortly thereafter. The parties subsequently filed cross-motions for judgment based upon the administrative record. In September 2008, the district court issued an order upholding Zurich’s denial of benefits. The Kovaches have timely appealed that order. II. ANALYSIS A.

Standard of review We review de novo the district court’s disposition of an ERISA action based upon the administrative record, and apply the same legal standard as the district court. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir.1998). As discussed in

Part II.B. below, the district court in this case appropriately reviewed the Kovaches’ suit under the arbitrary-and-capricious standard because the Plan granted discretionary authority to Zurich as the plan administrator to interpret the Plan’s terms and to determine its benefits. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111-15, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (establishing the arbitrary-and-capricious standard of review in ERISA cases where the plan administrator has discretionary authority); Glenn v. MetLife. Ins.

Co., 461 F.3d 660, 666 (6th Cir.2006) (applying Firestone’s standard of review). Under the arbitrary-and-capricious standard, we must uphold the administrator’s decision “if [the administrator’s]

interpretation of the Plan’s provisions is ‘reasonable.’ ” Morrison v. Marsh & McLennan Cos., 439 F.3d 295, 300 (6th Cir.2006) (citing Firestone, 489 U.S. at 111, 109 S.Ct. 948). But the arbitrary and capricious standard is not a “rubber stamp [of] the administrator’s decision.” Glenn, 461 F.3d at 661. Rather, it requires us to review “the quality and quantity of the ... evidence and the opinions on both sides of the issues.” McDonald v. W.-S. Life Ins. Co., 347 F.3d 161, 172 (6th Cir.2003). B.

Zurich’s retention of Maguire does not alter the applicable standard of review The parties agree that the Plan gives Zurich discretionary authority to determine eligibility for benefits and to construe the terms of the Plan. As noted above, this vesting of discretionary authority in Zurich would typically lead us to apply an arbitrary-and-capricious standard of review. But the Kovaches argue that, even where a plan vests the administrator with discretion, a de novo review of claim determinations is required if an entity or person other than the one authorized by the plan renders the decision. See San ford v.

Harvard Indus., 262 F.3d 590, 597 (6th Cir.2001) (holding that where “an unauthorized body that does not have fiduciary discretion to determine benefits eligibility renders such a decision,” arbitrary-and-capricious review is “not warranted”). The Kovaches contend that de novo review should apply in this case because Zurich improperly delegated its discretionary authority to construe the Plan and determine coverage to Maguire, an outside attorney who was not authorized by the Plan to act in such a fiduciary capacity. The district court properly rejected this argument.

Nothing in the record indicates that Zurich in fact delegated to Maguire its authority to construe the Plan or make a determination of whether to pay the Kovaches’ claim. Zurich initially set aside $125,000 of reserves for the claim, the full amount that the Kovaches would have been entitled to if their claim had been allowed. But after Zurich received Mr.

Kovach’s medical and toxicology records, it reduced the reserves to $10 because “this matter may be a potential denial.” Zurich’s letter to Maguire seeking a legal opinion stated: “[Ejnclosed please find copy of [the] file for your review and if in agreement, the drafting of the denial based on policy provisions.” After receiving Maguire’s opinion letter, Patricia Lane of Zurich communicated to the claims specialist assigned to the claim: “You have my authority to deny the claim and prepare and release the letter of denial today.” The claim denial sent to the Kovaches incorporated language from Maguire’s opinion letter, but was on Zurich letterhead and was signed on behalf of the company.

Zurich, not Maguire, made the final decision regarding the Kovaches’ claim. To the extent that the Kovaches argue that de novo review should apply because Zurich’s use of an outside expert advisor was not explicitly authorized by the Plan, that argument is not properly before us because the Kovaches did not raise it before the district court. See Chandler v. Jones, 813 F.2d 773, 777 (6th Cir.1987) (“It is a well-established principle of appellate review that appellate courts do not address claims not properly presented below.”).

But this contention, even if it were properly before us, lacks any support in the caselaw. Zurich’s retention of outside counsel to assist it in its claim determination would in fact seem to demonstrate that it took the process seriously and attempted to ensure that its decision had a strong legal basis. See, e.g., Karras v. First Colony Life Ins. Co. Pension Plan, No. 6:05-cv-00031, 2006 WL 1049519, at *7, 2006 U.S. Dist. LEXIS 18969, at *22 (W.D.Va. Apr. 13, 2006) (“[T]he fact that the Plan Administrator hired and relied upon outside legal counsel bolsters its final conclusion.”).

The Kovaches have not demonstrated that Zurich’s retention of Maguire amounted to the sort of improper delegation of authority that would require us to apply a de novo standard of review to Zurich’s decision. We will thus proceed to examine Zurich’s denial of the Kovaches’ claim under the arbitrary-and-capricious standard. C. Zurich’s denial of coverage Zurich denied coverage because it determined that Mr. Kovach’s injuries were not the result of an “accident,” but were the “reasonably foreseeable consequence of driving while highly intoxicated and under the influence of drugs.” Moreover, Zurich decided that Mr.

Kovach’s injuries fell under the Plan’s self-inflicted-wound exclusion because he “intentionally ingested a significant quantity of alcohol and apparently opiates and benzodiazepines, and his injury occurred as a result of polysubstance intoxication.” Zurich based this conclusion on a body of federal common law from within this circuit addressing allegedly similar scenarios. We note at the outset that drunk driving is ill-advised, dangerous, and easily avoidable.

But, as will be discussed in more detail below, so are many other activities that contribute to wrecks that a typical policyholder would consider “accidental.” We must thus refrain from allowing our moral judgments about drunk driving to influence our review of Zurich’s

interpretation of the relevant Plan provisions. D. Whether Lennon controls The sole published decision of this court that has dealt with the issues now before us is Lennon v. Metropolitan Life Insurance Co., 504 F.3d 617 (6th Cir.2007). That case involved what the court described as “grossly negligent,” “reckless drunk driving,” id. at 618, 624, and resulted in three separate opinions — a lead, a concurrence, and a dissent. Lennon was insured under an ERISA-covered personal accident insurance (PAI) policy.

On the day in question, he drove his car at a high rate of speed the wrong way down a one-way portion of a divided street, losing control of his vehicle. The car hit a curb, flew into the air, and slammed into a brick wall, killing Lennon. Lennon’s BAC was later measured at .321, more than three times the legal limit in effect at the time (.10) and high enough to render him only semiconscious. See Blood Alcohol Levels and Metabolism, http://www.radford.edu/— kcastleb/bae.html. Death has been documented to occur at BACs starting at .35. Id.

Lennon’s PAI policy provided in pertinent part as follows: 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. Lennon, 504 F.3d at 619 (alterations in original).

MetLife denied benefits to Lennon’s estate, noting in its denial letter that Lennon’s BAC was three times the legal limit and that “[t]he act of driving impaired ... rendered the infliction of serious injury or death reasonably foreseeable and, hence, not accidental.” Id. at 620. It thus concluded that Lennon’s death was not “directly the result of accidental injuries, independent ] of all other causes.” Id. The lead opinion concluded that MetLife had not acted arbitrarily and capriciously in denying coverage for Lennon’s death. Id. at 620-21.

Borrowing terminology from tort law, the lead opinion characterized Lennon’s behavior as “grossly negligent.” Id. at 621. It therefore reasoned that “in extreme cases courts may treat wanton misconduct more like an intentional tort than like negligence[,]” id. (quoting Dan R. Dobbs, The Law of Torts § 147, at 350-51 (2000)), and that a plan administrator could similarly “treat such conduct as not accidental under a policy that only covers accidents.” Lennon, 504 F.3d at 621.

The lead Lennon opinion also stated that the number of cases holding that drunk driving wrecks are not accidents “independently supports the conclusion that MetLife’s determination was not arbitrary and capricious.” Id. at 622-23 (collecting cases). On this point, the concurring opinion agreed. Id. at 625-26 (Boggs, C.J., concurring). Importantly, though, the lead opinion specifically cautioned that we do not reach the question of whether a fiduciary can reasonably deny “accidental” benefits for [an] injury that results from any negligent or any illegal behavior, or from, driving while only somewhat impaired.

Id. at 624 (emphasis added). The concurring opinion, moreover, made clear that the majority’s holding did not reach the question of whether to approve or disapprove of MetLife’s use of a “reasonably likely to occur” standard for defining what is an “accident,” and further noted that its conclusion was based on “the set of facts presented here....” Id. at 626. Although the insightful analyses from all three of the Lennon opinions are highly informative for our present review, Lennon is distinguishable and therefore not controlling. The most obvious distinction is the disparity between Lennon’s and Mr.

Kovach’s BACs—.321 versus .148. Lennon’s BAC was more than twice that of Mr. Kovach’s and more than four times the legal limit (.08) in place at the time of Mr. Kovach’s wreck. The lead Lennon opinion further acknowledged that “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.” 504 F.3d at 623 (emphasis added) (citing 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.”)).

For this reason, the Lennon majority refused to impose a blanket standard allowing insurers to consider injuries resulting from any wreck in which the driver is intoxicated as nonaccidental. Id. at 624. Compared to the dangerously high level of intoxication involved in Lennon, Mr. Kovach’s intoxication appears to fall into the “somewhat impaired” category that Lennon declined to address. Lennon is distinct from the ease before us in other ways as well.

The lead opinion was careful to note that the circumstances of Lennon’s crash were extreme: 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. Id. at 622.

We agree with the Lennon lead opinion that driving the wrong way down a one-way street while drunk to the point of semi-consciousness, and at a rate of speed so fast that the vehicle is on the verge of becoming airborne, amounts to a level of recklessness that would render the resulting injuries highly likely, and therefore not accidental. The facts surrounding Mr. Kovach’s crash, however, are nowhere near as dramatic as those in Lennon. Besides driving while intoxicated — at a level less than half that of Lennon — the only other out-of-the-ordinary thing that Mr.

Kovach did was run a stop sign, something done with unfortunate frequency by sober drivers. There is no indication in the record that Mr. Kovach was traveling at an abnormally high rate of speed or driving in an otherwise risky manner. Finally, we note that Zurich did not— and could not — have relied on Lennon in its review of the Kovaches’ claim. The Lennon opinion was issued more than a year after the Kovachs’ claim was formally denied by Zurich. Our dissenting colleague, however, contends that we have overlooked two critical factors in our analysis: (1) that Mr.

Kovach was riding a motorcycle, which the dissent characterizes as “an especially dangerous form of transportation,” and (2) that he was “intoxicated on opiates” at the time of the accident. (Dissenting Op. at 340) According to the dissent, these two “overlooked” factors establish that Mr. Kovach’s behavior was as risky as Lennon’s, and that an accident under such circumstances was “highly likely” to occur. (Dissenting Op. at 340, 341) But the record does not support either contention.

First, with regard to the motorcycle argument, the statistics cited by the dissent show at most an increased likelihood of death or injury during a motorcycle crash, not an increased likelihood of a crash as an initial matter. (Dissenting Op. at 343-44) But the latter, not the former, is the relevant event in the instant case. Moreover, in making its coverage decision, Zurich did not rely on the fact that Mr. Kovach was on a motorcycle when the accident occurred, so whether a motorcycle is a particularly dangerous form of transportation is irrelevant to our analysis. See Shelby County Health Care Corp. v.

Majestic Star Casino, LLC, 581 F.3d 355, 368-69 (6th Cir.2009) (holding that a plan administrator cannot support its argument on appeal with a fact not relied upon in its initial coverage determination). Second, the dissent infers that Vicodin, an opiate, was in Mr. Kovach’s system at the time of the accident because he had a prescription for the drug. (Dissenting Op. at 341) But a prescription alone is not sufficient proof that Mr. Kovach was actually taking the drug, or that it was still in his system at the time of the accident.

The Physicians’ Desk Reference cited by the dissent simply states that Vicodin “may impair” mental or physical abilities. (Dissenting Op. at 341) This is not proof that it did so for Mr. Kovach, and certainly does not show that the collision was “highly likely” to occur even if some of the drug was still in his system at the time of the accident. (See

Part II.E.6. below for a discussion of the “highly likely” standard to be applied in determining whether an event is “accidental.”) Furthermore, Zurich could have obtained the relevant records from the Robinson Memorial Hospital (the first hospital to which Mr. Kovach was taken) if it had wanted to, records that would have allegedly established that Mr. Kovach was on Vicodin at the time of the accident. Zurich apparently decided not to pursue the issue despite the fact that it had the burden of proving that Mr. Kovach was under the influence of Vicodin at the time of the accident.

Moreover, because Zurich did not pursue the matter and did not rely on the Vicodin-related argument in denying coverage, it is not relevant to our analysis. See Majestic Star Casino, LLC, 581 F.3d at 368-69. E. Zurich’s definition of “accidental” Having determined that Lennon does not control the case before us, we are left to examine Zurich’s denial of benefits based on its

interpretation of the term “accidental” as not including drunk-driving wrecks. Our task is not to address whether that decision was correct. Instead, the question before us is whether it was arbitrary and capricious. We answer that question in the affirmative. The central focus of our review is whether Zurich’s

interpretation of the term “accidental,” as used in the Plan, was reasonable. See Morrison v. Marsh & McLennan Cos., 439 F.3d 295, 300 (6th Cir.2006) (stating that an administrator’s

interpretation of plan provisions will be upheld if it is reasonable). ERISA requires that benefit plans must be “written in a manner calculated to be understood by the average plan participant.” 29 U.S.C. § 1022(a). Accordingly, “[i]n interpreting a plan, the administrator must adhere to the plain meaning of its language as it would be construed by an ordinary person.” Morgan v.

SKF USA, Inc., 385 F.3d 989, 992 (6th Cir.2004). “[A]n insured should not have to consult a long line of case law or law review articles and treatises to determine the coverage he or she is purchasing under an insurance policy.” Walker v. Metro. Life Ins. Co., 24 F.supp.2d 775, 780 (E.D.Mich.1997) (quoting Harrell v. Minnesota Mut. Life Ins. Co., 937 S.W.2d 809, 814 (Tenn.1996)). 1. Ordinary meaning We have little doubt that an ordinary person would characterize Mr. Kovach’s collision at the intersection to be an accident.

Webster’s dictionary offers the following pertinent definition of the word “accidental”: 2 a: occurring unexpectedly or by chance b: happening without intent or through carelessness and often with unfortunate results http://www.merriam-webster.com/ dictionary/accidental. Mr. Kovach’s wreck clearly fits this definition in that he did not “expect” or “intend” to hit another vehicle. Rather, he “carelessly” — or, more accurately, negligently — ran a stop sign, with the “unfortunate result” that he was injured in the ensuing collision. A hypothetical witness placing a 911 call to report Mr.

Kovach’s crash would almost certainly have reported that he or she had just seen an accident. Indeed, Zurich’s own language throughout the administrative record reflects that Mr. Kovach’s wreck was considered to be an accident in the ordinary sense of the word.

In particular, the company frequently referred to the crash as an accident in its own documentation regarding the claim: Committee determined that the issue regarding which party was at fault for the accident which resulted in the Insured’s loss requires further clarification. [The Committee] deferred its decision pending receipt of clarification from the relevant law enforcement authorities regarding which party was at fault in the accident at issue. [The] claim is to be referred for legal opinion regarding the accident and alcohol involvement.

Atty advised that dseepancies [sic] in records regarding cause of accident. Upon receipt of the medical records from Robinson Hospital and driving record, loss will be referred for legal coverage opinion, as the claimant was intoxicated at the time of the accident. (Emphasis added.) 2. Zurich’s reliance on caselaw Zurich defends its

interpretation of the word “accidental” almost entirely on the basis that it relied on a body of caselaw holding that drunk-driving wrecks are not accidents for ERISA purposes. But in this case, where Mr. Kovach’s intoxication and the circumstances of his accident were by no means extreme (as they were in Lennon), we conclude that Zurich was unreasonable in relying solely on caselaw to justify its denial of benefits to the Kovaches.

This court has held, in the ERISA context, that even under the highly deferential arbitrary-and-capricious standard, courts have an obligation under ERISA to review the administrative record in order to determine whether the plan administrator acted arbitrarily and capriciously in making ERISA benefits determinations. This obligation inherently includes some review of the quality and quantity of the ... evidence and the opinions on both sides of the issues. Otherwise, courts would be rendered to nothing more than rubber stamps for any plan administrator’s decision....

Even under the deferential review we will not uphold a termination when there is an absence of reasoning in the record to support it. McDonald v. W.-S. Life Ins. Co., 347 F.3d 161, 172 (6th Cir.2003) (citation omitted). Moreover, the cases Zurich relied upon in its denial of benefits-Jones v. Metropolitan Life Insurance Co., 385 F.3d 654 (6th Cir.2004); Nelson v. Sun Life Assurance Co. of Canada, 962 F.Supp. 1010, 1012-13 (W.D.Mich.1997); Walker v. Metropolitan Life Insurance Co., 24 F.Supp.2d 775, 780-81 (E.D.Mich.1997); Miller v.

Auto-Alliance International, Inc., 953 F.Supp. 172, 175-77 (E.D.Mich.1997); Cates v. Metropolitan Life Insurance Co., 14 F.Supp.2d 1024, 1027 (E.D.Tenn.1996); and Fowler v. Metropolitan Life Insurance Co., 938 F.Supp. 476, 480 (W.D.Tenn.1996)—do not uniformly support Zurich’s position. The only Sixth Circuit opinion cited in the denial letter, Jones v. Metropolitan Life, did not even involve intoxication, and in fact supports the Kovaches.

There, the court concluded that MetLife acted arbitrarily and capriciously by interpreting the term “accident” in a manner that excluded coverage where the plaintiff, a nurse, injured her knee while bending down to administer first aid to a patient. It thus “added an eligibility requirement [that the injury be caused by an external force or event] under the guise of interpreting the term ‘accident’ that does not exist in either the Plan documents or federal common law.” 385 F.3d at 659, 665. Further, in Walker v. Metropolitan Life, the insured had a BAC of .22 — substantially higher than Mr.

Kovach’s .148 — and was driving at a high rate of speed when he crashed into a wall. 24 F.Supp.2d at 777. And the injured driver in Miller v. Auto-Alliance had a BAC of .29, 953 F.Supp. at 173, while the insured in Fowler v. Metropolitan Life had a BAC of .26, 938 F.Supp. at 478. Finally, the policy in Cates v. Metropolitan Life excluded injuries resulting from “the use of any drug or medicine.” There, the administrator concluded in its denial letter that “alcohol is considered by the medical community to be a drug.” 14 F.Supp.2d at 1025. No such exclusion is present in the Kovaches’ AD & D policy.

The district court in Cates, without providing any analysis, upheld the insurer’s denial of the claim on the basis that the insured’s injuries were reasonably foreseeable at a BAC of .18 and therefore nonaccidental. Id. at 1027. Zurich is essentially left with only two drunk-driving decisions involving facts generally analogous to Mr. Kovach’s collision—Nelson v. Sun Life, 962 F.Supp. at 1013 (upholding the denial of benefits to an insured who was involved in a wreck while driving with a BAC of .18), and Cates v. Metropolitan Life.

But having to place all of its eggs in the basket of these two lower court decisions (one of which, Cates, is factually distinguishable because of the drug exclusion) to deny the Kovaches’ claim was unreasonable in light of the decision in Harrell v. Metropolitan Life Insurance Co., 401 F.Supp.2d 802 (E.D.Mich.2005), which reached the opposite result. There, the insured died in a wreck and was found to have a BAC of .17. Id. at 805.

The district court rejected the plan administrator’s argument that the death was not “accidental,” holding that, “to allow denial of benefits when a bad result is ‘reasonably foreseeable’ undermines a common conception of ‘accidental injuries,’ and therefore could violate ERISA’s requirement that benefit plans be ‘written in a manner calculated to be understood by the average plan participant.’ ” Id. at 812-13 (quoting 29 U.S.C. § 1022(a)). 3. The foreseeability of injury Zurich has offered no evidence whatsoever about the foreseeability of harm to Mr. Kovach based on his BAC of .148.

Perhaps the reason that it did not do so is that its outright exclusion of alcohol-related collisions from its definition of “accidental” is not born out by the statistics, as aptly summarized in the Lennon dissent: [AJccording to the National Highway Traffic Safety Administration, 17,105 people died in alcohol-related motor vehicle crashes in 2003, a figure that accounts for 40 percent of all traffic-related deaths that year. The Federal Bureau of Investigation’s 2003 Uniform Crime Report indicates that an estimated 1,448,148 motorists were arrested for driving under the influence that year.

Finally, the Substance Abuse and Mental Health Services Administration, in a report issued September 2005, found an estimated 30.7 million persons nationwide took alcohol-impaired trips during 2003. Even assuming only 10 million alcohol-impaired trips occurred that year, a mere 14.4 percent of impaired motorists were arrested, while 0.17 percent died in alcohol-related incidents. Thus, injury or death most certainly cannot be deemed a “highly likely” consequence of driving while intoxicated. See West v. Aetna Life Ins.

Co., 171 F.Supp.2d 856, 904 (N.D.Iowa 2001) (“What ‘common knowledge’ should actually tell a person driving while intoxicated is that he or she 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.”). Lennon, 504 F.3d at 630 (Clay, J., dissenting).

The Lennon dissent employed a conservative estimate of the number of drunk drivers per year that was more than three times less than the actual estimate provided by the Substance Abuse and Mental Health Services Administration. Using the full 30.7 million figure results in a death rate of only one-twentieth of one percent.

These statistics should not be taken as a dismissal of the tragic consequences of drunk-driving wrecks; instead, they are intended to show only that the likelihood of serious injury or death for each person who drives while intoxicated is something far less than “reasonably foreseeable” — the standard used by Zurich in denying the Kovach’s claim. 4.

Other risky activities We also note that Zurich’s definition of “accidental,” which excludes activities that render the risk of serious injury “reasonably foreseeable,” would bar accidental injury coverage in numerous situations in which the typical policyholder would expect to be covered. For example, a driver who runs off the road while typing a text message into a mobile phone would certainly consider himself or herself to have been involved in an “accident,” and would therefore expect to be entitled to benefits under an accidental-injury policy.

But the New York Times recently reported on a Virginia Tech study showing that text messaging increased a driver’s risk of collision by 23 times. Matt Richtel, In Study, Texting Lifts Crash Risk by Large Margin, N.Y. Times, July 27, 2009. Moreover, a study of young drivers in England found that reaction times of young drivers were reduced by text messaging three times more than by drinking alcohol to the legal limit. Helen Nugent, Texting While Driving Is More Dangerous than Drink-Driving, London Times, September 18, 2008.

A driver also substantially increases his or her risk of a collision by driving while fatigued, see Lori Yerdon, Fatigued Driving Comparable to Drunk Driving, U.S. Army Combat Readiness/Safety Center News Release, June 16, 2008, available at https://safety.army.mil/LinkClick.aspx? fileticket=TpDV4aOpMas= & tabid =691; driving at excessive speeds, see Synthesis of Safety Research Related to Speed and Speed Limits, http://www.tfhrc. gov/safety/speed/speed.htm; and driving after taking certain over-the-counter medications, notably antihistamines, opioids, and muscarinic antagonists, see U.K.

Dept, for Transport, Road Safety Report No. 24: Over-the-Counter Medicines and the Potential for Unwanted Sleepiness in Drivers, available at http://www.dft.gov.uk/pgr/ roadsafety/research/rsrr/theme3/ overthecountermedicinesandth4772. (Note that we do not endorse the results of the cited studies; these citations are included only to bolster the intuitive notion that the risk of driving can be substantially increased when drivers engage in common activities that do not carry the moral stigma of drunk driving.) If Zurich denied coverage for injuries involving the above factors on the basis that they were not caused by an “accident,” we would likely conclude that its decision was arbitrary and capricious in light of a typical policyholder’s expectations.

We see no reason not to reach the same conclusion based on the Kovaches’ legitimate expectations in the present case. 5. Lack of a specific exclusion Zurich could have easily added an exclusion in the Plan for driving while intoxicated if it had wished to do so, but it did not. The sheer number of court cases nationwide involving disputes over claims by drunk drivers certainly would have put it on notice that it would likely face claims under its AN & D policies based on injuries sustained in alcohol-related collisions.

Zurich did, however, include specific exceptions for “skydiving, parasailing, hangglinding [sic], bungee-jumping, or any similar activity.” But under the “reasonably foreseeable injury” standard that Zurich employed to deny the Kovaches’ claim, these exclusions would be unnecessary and redundant because all of the listed activities involve a reasonably foreseeable risk of injury. See Restatement (Second) of Contracts § 203(a) (1981) (“[A]n

interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an

interpretation which leaves a part unreasonable, unlawful, or of no effect.”). In effect, Zurich’s definition of the term “accidental” has added an eligibility requirement (i.e., an exclusion) that is not in the Plan. Based on the facts of the current case, that renders its

interpretation of the Plan arbitrary and capricious. See Jones v. Metro. Life. Ins. Co., 385 F.3d 654, 665 (6th Cir.2004) (“In this case, MetLife added an eligibility requirement under the guise of interpreting the term “accident” that does not exist in either the Plan documents or federal common law; therefore, MetLife’s

interpretation of the Plan is arbitrary and capricious.”). We also note that to the extent Zurich relied on the presence of drugs in Mr. Kovach’s blood samples to deny coverage, where the record provides no basis to find that these drugs were present before the accident, that reliance is a further indication of an arbitrary and capricious decision. 6. Wickman standard Given the varying

interpretations of the word “accidental” that have been employed by the district courts in this circuit, compare Nelson v. Sun Life Assurance Co. of Canada, 962 F.Supp. 1010, 1013 (W.D.Mich.1997) (applying a “reasonable foreseeability” standard) with Harrell v. Metropolitan Life Insurance Co., 401 F.Supp.2d 802, 812-13 (E.D.Mich.2005) (applying a “highly likely to occur” standard), the time is ripe for this court to adopt a uniform standard for determining whether an injury is “accidental” in ERISA cases where the word is not otherwise defined in the applicable policy.

After giving this matter considerable thought, we adopt the key holding announced in the seminal First Circuit case of Wickman v. Northwestern National Insurance Co., 908 F.2d 1077 (1st Cir.1990). This key holding consists of asking “whether a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured’s intentional conduct.” Id. at 1088.

As stated by the concurring opinion in Lennon, Wickman’s standard ... is a high bar, and arguably many collisions involving a drunk driver would not meet it: as a number of courts have noted, the number of drunk driving arrests swamps the number of drunk driving injuries or deaths, making it difficult to conclude that an injurious collision is “highly likely to occur as a result” of driving while intoxicated. 504 F.3d at 625.

The dissent, however, asserts that “[t]he combination of alcohol and Vicodin made it even more likely that a traffic collision would occur, rendering Kovach’s behavior all the more reckless.” (Dissenting Op. at 342) (emphasis added). Driving while intoxicated concededly makes a collision “more likely” to occur than if the driver is not intoxicated, but this does not mean that a collision under such circumstances is “highly likely.” Solely for the purpose of illustration, and without any pretense of being statistically accurate, let us hypothetically assume that a sober driver has a 1% probability of a collision.

By contrast, assume that driving while intoxicated results in a 10% probability of a collision, leading to the conclusion that a collision is “more likely” to occur while driving intoxicated. But to reach the level of “more likely than not,” the probability of an accident would, by definition, have to be in excess of 50%.

And because “highly likely,” which is necessary under the Wickman standard to obviate Zurich’s liability for an accidental injury, obviously means a good bit more probable than simply “more likely than not,” one might contemplate a 75% or higher probability before the average person would be persuaded that a collision was “highly likely” to occur. So even if the motorcycle/Vicodin factors relied on by the dissent made Mr. Kovach’s accident more likely, that is not sufficient to meet the Wickman standard and thereby relieve Zurich of its policy obligations. The dissent criticizes this analysis by citing Stamp v.

Metropolitan Life Insurance Co., 531 F.3d 84 (1st Cir.2008), for the proposition that the “highly likely” standard is not wedded to the “more likely than not” standard. (Dissenting Op. at 342 n. 4) Stamp is distinguishable from the present case, however, because the insured in Stamp, like the insured in Lennon, was driving with a BAC of more than three times the legal limit. Stamp, 531 F.3d. at 86. Thus, Stamp’s behavior was materially closer to the extreme alcohol-related behavior at issue in Lennon than Mr. Kovach’s.

This material distinction in circumstances precisely meshes with a key point stressed by the majority opinion in Stamp that courts have emphasized the decedent’s level of intoxication when determining that a plan administrator’s denial of benefits was reasonable.... We endorse this approach. The Wickman analysis does not require a categorical determination that all alcohol-related deaths are per se accidental or nonaccidental. Rather, it leads us to consider the circumstances of the fatal event in question. Id. at 90-91 (internal citations omitted).

We further believe that the Russian roulette example cited in Stamp and by the dissent is inapposite because playing Russian roulette has zero social utility, whereas using motorized transportation to move about has a very high level of social utility.

In sum, riding a motorcycle while “somewhat impaired” (as opposed to being “grossly intoxicated”) may make an accident more likely to occur, but the risk of such an accident is not so “overwhelmingly disproportionate” when compared to the social utility involved, see id. at 93 (citation omitted), that an ordinary person would consider a collision involving the impaired driver as nonaccidental.

The solution for insurance companies like Zurich is simple: add an express exclusion in policies covering accidental injuries for driving while under the influence of alcohol, or for any other risky activity that the company wishes to exclude. Policyholders would thus be able to form reasonable expectations about what type of coverage they are purchasing without having- to make sense of conflicting bodies of caselaw that deal with obscure issues of contractual

interpretation. Had Zurich included such an exclusion in first place, this litigation would have been entirely unnecessary. 7. Conclusion Zurich’s decision to deny benefits to the Kovaches was contrary to the everyday meaning of the word “accidental” as it would be understood by a typical policyholder, and was based almost entirely on a body of largely distinguishable district court cases. Further, Zurich’s estimation of the foreseeability of Mr.

Kovach’s injuries is undermined by statistics showing that the likelihood of a wreck for an individual driving at less than extreme levels of intoxication is exceedingly small as a percentage of all such driving expeditions, and arguably represents Zurich’s improper insertion of moral judgments into its analysis of the Plan’s provisions. This observation is born out by the fact that insureds would almost certainly expect to be covered for injuries resulting from many other activities that are at least as risky as driving while intoxicated, such as driving while text messaging or while sleep-deprived. In sum, Mr.

Kovach’s injuries were not “highly likely to occur” as a result of his intoxication, in contrast to the injuries that were highly likely t'o occur under the facts in Lennon. Zurich’s

interpretation of the Plan’s provisions amounts to an additional, unwritten exclusion for all drunk-driving injuries, which is not permitted under even the most deferential standard of review. For all of these reasons, we conclude that Zurich’s denial of coverage based on Mr. Kovach’s injuries being nonaccidental was unreasonable in light of the Plan’s provisions, and thus arbitrary and capricious. See Morrison v. Marsh & McLennan Cos., 439 F.3d 295, 300 (6th Cir.2006). F. The self-inflicted-wound exclusion The alternate explanation offered by Zurich for its denial of coverage to the Kovaches was that Mr.

Kovach’s injuries fell under the Plan’s self-inflicted-wound provision. The relevant language provides that no benefits are payable if the loss is “caused by or connected with ... a purposeful self-inflicted wound.” Zurich reasons that Mr. Kovach’s injury resulted from his intentional act of becoming drunk and operating a motorcycle, and was therefore self-inflicted. The Eighth Circuit, sitting en banc, rejected an identical argument in King v. Hartford Life & Accident Insurance Co., 414 F.3d 994 (8th Cir.2004) (en banc). There, the insured had died in a motorcycle accident with a BAC of .19. Id. at 997.

That court held, and we agree, that “[t]he most natural reading of the exclusion for injuries contributed to by ‘intentionally self-inflicted injury ... ’ does not include injuries that were unintended by the participant, but which were contributed to by alcohol intoxication.” Id. at 1004. Although Mr. Kovach acted intentionally in drinking to excess and then riding his motorcycle, nothing in the record indicates that he did so with a mind towards harming himself. Zurich’s

interpretation of the exclusion in question conflates intentional actions with intentional results. Mr. Kovach’s injuries, in other words, were the result of the collision, not simply a consequence of his acts of drinking and driving. After all, “[o]ne rarely thinks of a drunk driver who arrives home safely as an ‘injured’ party.” Id. Mr. Kovach’s intoxication likely contributed to the collision, but to define his excessive drinking as a “purposely self-inflicted wound” would be an illogical and “startling construction.” Id.

Zurich’s denial of the Kovaches’ claim on this basis was therefore arbitrary and capricious. G. Appropriate proceedings on remand This leaves us with a choice as to the appropriate proceedings on remand. In ERISA cases, appellate courts have the power either to send the matter back to the plan administrator for further consideration or to make a final decision on the merits. Cook v.

Liberty Life Assurance Co., 320 F.3d 11, 24 (1st Cir.2003) (“Once a court finds that an administrator has acted arbitrarily and capriciously in denying a claim for benefits, the court can either remand the case to the administrator for a renewed evaluation of the claimant’s case, or it can award a retroactive reinstatement of benefits.”). This court has frequently awarded benefits outright in lieu of a remand for reconsideration by the plan administrator. See, e.g., Cooper v. Life Ins. Co. of N.

Am., 486 F.3d 157, 171 (6th Cir.2007) (“[W]e find no need to remand this matter for additional consideration by LINA because of our conclusion that Cooper has clearly established that she is disabled under the Plan.”); Kalish v. Liberty Mut./Liberty Life Assurance Co., 419 F.3d 501, 513 (6th Cir.2005) (concluding that the appropriate remedy was an immediate award of benefits rather than a remand to allow the plan administrator to consider evidence that it had previously ignored). The case before us has no unresolved factual issues; instead, its resolution revolves around the proper

interpretation of the Plan provisions — a question of law that we have answered in the Kovaches’ favor. Having determined that Mr. Kovach’s collision falls within the definition of “accidental” and is not subject to the self-inflicted- — -wound exclusion, we thus conclude that the proper disposition of this case is an award of benefits to the Kovaches. See Canseco v. Const. Laborers Pension Trust, 93 F.3d 600, 609 (9th Cir.1996) (concluding that no remand is necessary where no new factual determinations remain). III. CONCLUSION For all of the reasons set forth above, we REVERSE the judgment of the district court and REMAND the case for the entry of a judgment in favor of the Kovaches.