My client’s brother was riding his motorcycle when another driver turned left in front of him.  The motorcyclist struck the front right corner of the car.  The motorcyclist died at the scene.

The driver of the car received a ticket for violation of right of way.  The motorcyclist was not speeding, and was not found to be engaging in any improper driving.  However, the motorcyclist’s blood alcohol content was .09% – slightly over Florida’s legal limit of .08.

My client’s brother was insured under an ERISA Accidental Death and Dismemberment insurance policy issued by Humana.  My client submitted the claim, but Humana denied the claim based on the following exclusion:

Accidental Death or Bodily Injury benefits do not cover loss resulting from:

º The voluntary taking of any sedative, drug, alcohol, poison or inhalation of any gas unless taken or inhaled as prescribed or administered by a Qualified Practitioner.

º Driving or operating a motorized vehicle while legally intoxicated or under the influence of illegal substance. Intoxication means that blood alcohol content or the results of other means of testing blood alcohol level meet or exceeds the legal presumption of intoxication under the law of the state where the accident took place;

Humana simply concluded without explanation that the claim was not covered because the motorcyclist had a BAC of .09.  However, the exclusion requires that Humana prove that the accident resulted from driving while intoxicated.  From the facts of the crash it was obvious that there was nothing the motorcyclist could have done to avoid this collision.  Out of an abundance of caution, I retained an accident reconstruction engineer to reconstruct the crash.  The engineer concluded that

The cause of the MVC was that [the driver of the car] improperly made a left turn in front of [the motorcyclist], leaving insufficient time and distance for a normal alert driver to avoid the crash.

Consequently, Humana cannot carry its burden of proving that the loss “resulted from” the motorcyclist impairment.

Because this accidental death insurance policy is governed by ERISA I must file an administrative appeal with the insurance company.  The appeal in ERISA is extremely important as the administrative record developed during the appeal will likely be the only evidence a federal judge will review if this case is ever litigated.  Under ERISA, the insured is typically required to show that the insurance company’s decision was arbitrary and capricious based on the evidence which it had before it at the time it makes its decision.  Thus, the appeal must be thorough and complete, as there will likely be no more evidence allowed even if a lawsuit is filed.

This case is proceeding on a contingency fee basis.  If I am forced to litigate I will seek fees from Humana or the ERISA plan administrator under 29 U.S.C. Section 1132(g).