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Celina Whinery v. Life Insurance Company of North America

November 7, 2012


The opinion of the court was delivered by: Percy Anderson United States District Judge


This is an Employee Retirement Income Security Act ("ERISA") action for recovery of accidental death benefits. Plaintiff Celina Whinery ("Plaintiff") seeks benefits under a group insurance policy issued to Citigroup, N.A. by Life Insurance Company of North America ("LINA"). Plaintiff's husband, Timothy Whinery, was an insured under the policy. Mr. Whinery died on December 16, 2007, after the automobile he was driving crashed into a tree. Plaintiff made a claim for accidental death benefits under the policy. After LINA denied her claim, Plaintiff commenced this action on December 3, 2010.

After providing Plaintiff with an opportunity to conduct discovery concerning LINA's potential conflict of interest. LINA filed the Administrative Record (Docket Nos. 35 & 36) and Plaintiff's counsel submitted additional materials obtained through discovery (Docket Nos. 38, 44, & 52). Then, on December 20, 2011, the Court, sitting without a jury, conducted a bench trial. However, rather than issue Findings of Fact and Conclusions of Law at that time, the Court remanded Plaintiff's claim to LINA so that it could apply the definition of "accident" adopted by the Ninth Circuit in Padfield v. AIG Life Ins. Co., 290 F. 3d 1121, 1126 (9th Cir. 2002).

On remand, LINA again denied Plaintiff's claim. Plaintiff appealed LINA's denial through LINA's internal appeals procedure and LINA upheld its denial. At the Court's direction, following Plaintiff's exhaustion of her administrative remedies, the parties submitted a Joint Status Report to the Court on July 3, 2012. The Court then issued a Scheduling Order that required the filing of a Supplemental Administrative Record, allowed the parties to submit trial briefs, and set the matter for a Court trial on November 6, 2012.

The Administrative Record (pages 1-117) and Supplemental Administrative Record (pages 118-1100) are numbered sequentially. The Court will therefore cite collectively to the Administrative Record and Supplemental Administrative Record as "AR __."

After LINA submitted the Supplemental Administrative Record (Docket No. 65), Plaintiff filed a Motion to Augment the Supplemental Administrative Record (Docket No. 74). In its Motion to Augment, Plaintiff asserted that LINA had not included in the Supplemental Administrative Record communications between LINA's legal department and outside counsel and those handling Plaintiff's claim on remand and appeal. Relying on Stephan v. Unum Life Ins. Co., No. 10-16840, 2012 WL 3983767 (9th Cir. Sept. 12, 2012), Plaintiff asserted that communications between LINA's in-house and outside counsel and those handling her claim from the date of the first trial on December 20, 2011, through July 3, 2012, when the parties submitted their Joint Status Report following rejection of Plaintiff's final appeal, were subject to the fiduciary exception to the attorney-client privilege and were both discoverable and relevant to the amount of deference this Court should apply.

To assess the merit of Plaintiff's assertions, the Court ordered LINA to file what it considers to be communications subject to the attorney-client privilege under seal and in camera without providing a copy to Plaintiff. LINA submitted these "privileged" documents to the Court on October 25, 2012 (Docket No. 102).*fn1 The Court has reviewed the documents and concludes that they should not be provided to Plaintiff or made part of the Administrative Record. First, as the Ninth Circuit indicated in Stephan, "[t]here is no binding precedent in this circuit delineating precisely when the interests of a Plan fiduciary and its beneficiary become sufficiently adverse that the fiduciary exception no longer applies." Stephan, 2012 WL 3983767, at *13. Because Plaintiff had already commenced litigation and this action was technically still pending during the remand, the Court concludes that the fiduciary exception does not apply. Second, Stephan was not decided until LINA had already issued its decision denying Plaintiff's appeal and the matter was back on this Court's active calendar, so LINA had little notice that the communications between its lawyers and those handling the claim might be discoverable. Finally, as will be discussed in more detail below, nothing contained in those documents alters the ultimate determination the Court reaches.

Having considered the materials submitted by the parties and after reviewing the evidence, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Any finding of fact that constitutes a conclusion of law is hereby adopted as a conclusion of law, and any conclusion of law that constitutes a finding of fact is hereby adopted as a finding of fact.

I. Findings of Fact

1. Citigroup, N.A. ("Citigroup") established an employee welfare benefit plan (the "Plan") for the benefit of its employees which paid benefits in the event of a covered employee's accidental injury or death. (AR 91-117).

2. The Plan was funded through the purchase of a group accident insurance policy (the "Policy") by Citigroup from LINA. The Policy number was OK 815669, effective January 1, 2001, and was in effect at all relevant times during the events described below. (AR 91-117).

3. The Policy provides: "We agree to pay benefits for loss from bodily injuries: (a) caused by an accident which happens while an insured is covered by this policy; and (b) which, directly and from no other causes, result in a covered loss." (AR 91).

4. The Policy does not define the term "accident." (AR 91-117)

5. The Policy does not contain an exclusion for deaths resulting from intoxication or the use of controlled substances. (AR 91-117).

6. The Policy grants LINA "the authority, in its discretion, to interpret the terms of the Plan documents, to decide questions of eligibility for coverage or benefits under the Plan, and to make any related findings of fact." (AR 94).

7. In December of 2007, Timothy Whinery was a 41-year-old resident of Thousand Oaks, California who was a project manager with Smith Barney, a subsidiary of Citigroup. (AR 70-71).

8. As a result, he was covered by the Plan and Policy and entitled to benefits under the Plan and Policy in the event of a covered loss. (AR 82).

9. Mr. Whinery was insured for $418,000 under the Policy. (AR 82).

10. Mr. Whinery's job was very stressful and he had a history of cardiac problems. (AR 71). On his physician's recommendation, Mr. Whinery had taken a medical leave of absence from his job in October 2007. (AR 71). Plaintiff informed investigators that Mr. Whinery was taking several medications, including Plavix, Seroquel, Zoloft, Klonopin, Vytorin, Trazadone, Singulair, and Lamictal. (AR 71).

11. According to his Plaintiff, Mr. Whinery had been sober for over a year and was doing well. (AR 71). He was planning on taking his family on a snowboarding trip to Mammoth Mountain at Christmas. (AR 79).

12. On December 16, 2007, Mr. Whinery had an argument with his wife. He left his house at approximately 2:00 p.m. (AR 71).

13. At approximately 10:45 p.m., Mr. Whinery was traveling westbound on Pederson Road in Thousand Oaks, California. (AR 70).

14. The posted speed limit was 45 miles per hour. (AR 43).

15. The weather was clear and conditions were dry. (AR 34).

16. Police records show that Mr. Whinery was driving around a long right curve on Pederson Road when his vehicle twice struck the median, which was raised and landscaped. He overcorrected his steering, skidded, and then struck the median again, continuing through it until the side of his car collided with a tree and stopped. (AR 42-47, 70).

17. Police estimated Mr. Whinery's vehicle's speed at approximately 89-95 miles per hour. (AR 46). Although LINA never relied on this fact in making any of its determinations, the police report also states that Mr. Whinery was not wearing his seat belt at the time of the collision. (AR 43-44).

18. Mr. Whinery was declared dead at the scene by the Ventura County Fire Department. (AR 70).

19. There was no evidence of alcohol at the scene (AR 70), but Mr. Whinery's blood alcohol content ("BAC") was measured at .22%, nearly three times the legal limit. (AR 59). Cannabinoids were also detected in Mr. Whinery's blood. (AR 57).

20. The Ventura County Medical Examiner concluded in its Death Investigation Report that the "Cause of Death" was "Multiple blunt force injuries," and the "Manner of Death" was "Accident." (AR 70-71).

21. The County of Ventura subsequently issued a death certificate which confirmed that the "immediate cause" of death was ...

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