United States District Court, W.D. Wisconsin
UNIVERSITY OF WISCONSIN HOSPITAL AND CLINICS, INC., and UNIVERSITY OF WISCONSIN MEDICAL FOUNDATION, INC., Plaintiffs,
AIR PRODUCTS AND CHEMICALS, INC., AS SUCCESSOR PLAN ADMINISTRATOR TO EPCO CARBON DIOXIDE PRODUCTS, INC., HEALTH PLAN, Defendant.
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
consuming a No. of alcoholic drinks, Brennan Cain fell down
the basement stairs of his sister's house in the early
morning hours of December 25, 2010. Despite receiving
extensive treatment at the University of Wisconsin Hospital,
Cain tragically died from injuries resulting from that fall.
In an initial lawsuit before this court, plaintiffs
University of Wisconsin Hospital and Clinics, Inc. and
University of Wisconsin Medical Foundation, Inc.
(collectively, “UWHC”), as assignees of his
claims for reimbursement, challenged the decision by the
administrator of his employee health benefits plan to deny
coverage for Cain's injuries. See Univ. of Wis. Hosps.
& Clinics Auth. v. EPCO Carbon Dioxide Prods., Inc.
Health Care Plan, No. 12-cv-031-wmc, slip op. (W.D. Wis. Apr.
18, 2015). In that case, the court remanded the
administrator's decision for reconsideration, finding
that the original denial under the coverage exclusion for
“accidental bodily Injury sustained or Illness
contracted as a result of alcohol or drug use” was
arbitrary and capricious absent an investigation and ruling
out of possible causes for Cain's fall and resulting
injuries other than alcohol intoxication. (Id., dkt.
#52.) In this case, plaintiffs again challenge the denial of
their claim under the Employee Retirement Income Security Act
of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.,
this time naming as defendant the administrator of the
plan's successor, defendant Air Products and Chemicals,
Inc. (“Air Products”).
the court are plaintiffs' motion for judgment on the
pleadings (dkt. #12), defendant's motion for summary
judgment (dkt. #18), and plaintiffs' motion for partial
summary judgment (dkt. #32). Based on the undisputed facts,
the court finds that the plan administrator has now
sufficiently investigated the possible causes of Cain's
fall. The court further finds that the administrator
reasonably interpreted and applied the facts to the relevant
coverage exclusion. Accordingly, the plan's denial of
coverage was not arbitrary and capricious, and the court will
grant summary judgment to defendant.
December 25, 2010, Brennan Cain was an employee of EPCO
Carbon Dioxide Products, Inc. (“EPCO”) and an
employee-participant of the EPCO Employee Health and Welfare
Plan (the “Plan”). After acquiring EPCO, Air
Products became the administrator of the Plan. Accordingly,
Air Products handled Cain's claim on remand.
Plan grants its administrator, Ms. Elizabeth Reese,
“sole authority and discretion to interpret and
construe the terms of the Plan and to determine any and all
questions in relation to . . . payment of benefits or claims
under the Plan[.]”
afternoon of December 24, 2010, Cain worked at EPCO for a
total of six hours. Somewhere between 6:30 and 7:00 p.m.,
Cain and his girlfriend, Beth Sutton, arrived at his sister
and brother-in-law's house. That night, Cain and Sutton
went to two bars with his sister and brother-in-law, Temple
and Patrick Palmer, before returning home sometime between
11:00 p.m. and midnight.
12:30 a.m. on December 25, 2010, Cain went to the basement to
sleep. Having consumed “several” alcoholic
drinks, Sutton recalled that he was “staggering a
little bit at that time.” At approximately 2:30 a.m.,
Cain returned upstairs to convince Sutton to come to
She followed Cain to the basement stairs, but as he stepped
down from the threshold, Cain lost his balance, fell down the
stairs and landed on the floor, knocking himself unconscious.
Cain received emergency medical treatment on the scene and
was then rushed to the University of Wisconsin Hospital.
There, he underwent treatment for Level I head trauma, but
never recovered. Cain passed away at the hospital due to his
injuries on October 5, 2011.
time he fell down the stairs, Cain was wearing slippers with
rubber soles. There were no objects lying on the stairs,
although the first step leading down into the basement was
shorter than the rest, with a height of approximately three
to four inches. At 4:21 a.m., the hospital measured
Cain's blood alcohol content (“BAC”), which
was still 0.25g/dL, or roughly three times the legal driving
limit in Wisconsin.
Cain presented his claim for reimbursement, a third party
claim manager, Cottingham & Butler, reviewed the
emergency room report and ruled out a stroke as the cause of
his fall. Eric Wiesemann, the administrator of the plan at
that time, then denied Cain's claim under General
Limitation 52, which excludes coverage for “accidental
bodily Injury sustained . . . as a result of alcohol or drug
use.” In anticipation of litigation, the Plan also
referred Cain's claim to Dr. Christopher Long, a
board-certified toxicologist, who wrote a letter opining that
Cain's alcohol use was a cause of his injuries. After the
Plan Administrator denied Cain's appeal, plaintiffs sued
EPCO in state court. EPCO then properly removed the case to
this court because a federal question was presented under
initial lawsuit involving Cain's claim for benefits, the
court granted summary judgment to plaintiffs, explaining
that, as the then administrator, EPCO did not conduct a
sufficient investigation into the circumstances surrounding
Cain's fall before ruling that it resulted from his
alcohol use. For example, the court found that the
administrator should have arranged for an examination of the
allegedly irregular stairs at Palmers' house, inquired
about Cain's ability to traverse the stairs when sober,
examined the footwear Cain was wearing when he fell or at
least spoke to Sutton, who witnessed Cain's fall. See
EPCO, No. 12-cv-031-wmc, slip op. at *4, *7. Ordering
that the matter be remanded for further review, the court
further noted that the plan administrator should clarify his
interpretation of the phrase “as a result of, ”
as found in the alcohol exclusion. See Id. at *7
The investigation on remand
remand, Elizabeth Reese, the Plan's new administrator for
Air Products as EPCO's successor, conducted an additional
investigation into the circumstances surrounding Cain's
fall. Among other things, Reese interviewed Temple Palmer at
her home on August 7, 2014, who confirmed that: (1) no
changes had been made to the stairs since they were carpeted
in the late 1990s; (2) Ms. Palmer's family used the
stairs on a daily basis in various types of footwear; (3) Ms.
Palmer's insurance company told her that the stairs were
up to code and did not cause the accident; and (4) the
slippers Mr. Cain was wearing when he slipped had rubber
soles and were in good condition. At Palmer's home, Reese
also walked the basement stairs and took pictures of them.
administrator next considered an expert report prepared by
Kenneth Graham, Ph.D., a forensic toxicologist, who reviewed
Cain's claim at the request of the administrator. Dr.
Graham opined that the “effects associated with Mr.
Cain's significant alcohol intoxication were direct
causes of his inability to safely negotiate the flight of
stairs . . . and the subsequent injuries he sustained from
his fall.” In reaching his conclusion, Dr. Graham
specifically dismissed the notion that Cain's personal
tolerance for alcohol would have minimized the impairment of
his executive functions required to navigate safely a flight
addition, the administrator considered more than 3, 553 pages
of documents that Mark Sweet, counsel for UWHC, submitted to
supplement the record. Among these documents were two expert
reports prepared by Dr. Richard Tovar. In the first report,
Dr. Tovar concluded that after reviewing Cain's records,
“[a]lthough the alcohol played a large roll in his
fall, there were other factors such as potentially unfamiliar
terrain such as the stairs, and the use of foot appliances,
that is the slippers, which could have enhanced his lack of
coordination resulting in a fall.” A week after his
first report, Dr. Tovar also submitted a second, in which he
still opined that “the alcohol did play a role in his
fall, but [a] much more decreased [role than he had first
opined] in light of the new information by Ms. Sutton that
Mr. Cain was a chronic drinker.”
the administrator also reviewed a report plaintiffs submitted
from Robert Wozniak, an engineer who examined the
Palmers' basement stairs. Wozniak noted in his report
that Cain's slippers were in good condition, but stated
that the stairs were not up to code and may have contributed
to Cain's fall.
The administrator's decision after
decision dated November 25, 2014, the administrator again
denied Cain's claim for benefits. Specifically, Ms. Reese
The preponderance of the evidence supports that Mr.
Cain's significant alcohol intoxication was the direct
cause of his inability to safely navigate the flight of
stairs or quickly react to his loss of footing, was the
direct cause of the subsequent injuries sustained from the
fall, and that the accident would not have occurred in the
absence of alcohol. Thus, medical expenses arising from such
fall[s] are excluded from coverage under Item 52 of the
General Limitations Section of the Plan.
written decision, the administrator also attempted to address
the two primary concerns the court raised in the
EPCO lawsuit. First, the administrator
interpreted the “as a result of alcohol . . .
use” coverage exclusion to mean that alcohol need
not be the “but for” cause of
any accident. The administrator reached this conclusion after
reviewing the text of other exclusions in the Plan. She
reasoned that the Plan uses “sole” or
“solely” where a finding of “but for”
causation is required, as opposed to “as a result
of” language in the relevant provision here.
the administrator ruled out other possible causes for
Cain's fall. With respect to the condition of the
basement stairs, the administrator explained that she
personally walked them with no difficulty and further
credited Ms. Palmer's belief that the stairs were safe.
Additionally, concerning fatigue, the administrator noted
that Cain had been working only six hours the day before his
fall, had never fallen due to fatigue at any other time even
when he worked more than six hours, and was not too tired to
socialize. Finally, the administrator explained that
Cain's slippers did not appear unusual, at least based on
the pictures she reviewed and Ms. Palmer's statement that
Cain had worn the rubber-soled slippers with no concern on
the Plan expressly grants the administrator discretionary
authority to interpret its terms and determine whether claims
are eligible for benefits, the parties agree that the
arbitrary and capricious standard of review applies here.
See Wetzler v. Ill. CPA Soc. & Found. Ret. Income
Plan, 586 F.3d 1053, 1057 (7th Cir. 2009) (citing
Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989)). Under this deferential standard, “an
administrator's interpretation is given great deference
and will not be disturbed if it is based on a reasonable
interpretation of the plan's language.”
Id. Only if an administrator's decision is
“downright unreasonable” can the court reverse
her decision. Blickenstaff v. R.R. Donnelley & Sons
Co. Short Term Disability Plan, 378 F.3d 669, 677 (7th
Cir. 2004). Still, because the administrator applied a
provision excluding coverage for benefits, defendant has the
burden of showing that the exclusion applies. See,
e.g., Fuja v. Benefit Tr. Life Ins. Co., 18
F.3d 1405, 1408 (7th Cir. 1994).
court is to consider “reasonableness” in light of
the following factors: “the impartiality of the
decision making body, the complexity of the issues, the
process afforded the parties, the extent to which the
decision makers utilized the assistance of experts where
necessary, and finally the soundness of the fiduciary's
ratiocination.” Chalmers v. Quaker Oats Co.,
61 F.3d 1340, 1344 (7th Cir. 1995). Rather than address these
factors head on, plaintiffs take a scatter-shot approach to
challenging the administrator's decision on remand on
both procedural and substantive grounds. While keeping the
applicable reasonable factors in mind, the court will address
plaintiffs' arguments in turn.
begin, plaintiffs contend that the plan administrator
committed a variety of procedural errors. As plaintiffs
acknowledge, those purported errors would not themselves
entitle plaintiffs to a remedy or alter the standard of
review. (Pls.' Opp'n Br. (dkt. #27) 13.) Instead, any
procedural violations would be considered in determining
whether the plan administrator's decision was arbitrary
and capricious. See Weitzenkamp v. Unum Life Ins. Co. of
Am., 661 F.3d 323, 329 n.3 (7th Cir. 2011).
Timing of the administrator's decision
first challenge the administrator's compliance with 29
C.F.R. § 2560.503-1(f)(1), which states in pertinent
if a claim is wholly or partially denied, the plan
administrator shall notify the claimant . . . of the
plan's adverse benefit determination within a reasonable
period of time, but not later than 90 days after receipt of
the claim by the plan, unless the plan administrator
determines that special circumstances require an extension of
time for processing the claim. If the plan administrator
determines that an extension of time for processing is
required, written ...