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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND EDNA LAMM v. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY * * * Civil No. JFM-04-1341 * * * ***** MEMORANDUM Edna Lamm has brought this action under ERISA seeking recovery from Provident Life & Accident Insurance Company of benefits for injuries sustained by her husband in a lawn mower accident.1 Plaintiff and Provident have filed cross-motions for summary judgment. Provident's motion will be granted, and plaintiff's motion will be denied. Although the accident in which Mr. Lamm was involved was extremely unfortunate, no extended discussion of the facts or law is necessary.2 The policy issued by Provident has a provision conferring "discretionary authority [upon the plan administrator] to interpret the Plan and the Policy and to determine eligibility for benefits." The decision-maker was not Provident but an adjusting firm, A. C. Newman. Therefore, it appears that an abuse of discretion standard applies to reviewing the decision that was made to deny benefits. See, e.g., Laser v. Provident Life & Accident Ins. Co., 211 F. Supp. 2d 645, 649 (D. Md. 2002). In any event, the decision to deny benefits to plaintiff was entirely reasonable and supported by substantial evidence. Therefore, even assuming that the relationship between A. C. Newman and Provident creates a

Mrs. Lamm purchased the insurance policy in issue through her employer, Northrup Grumman Corporation.
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Mr. Lamm is now deceased.

conflict of interest invoking a more stringent standard of review, the decision must be affirmed. Plaintiff contends that Mr. Lamm suffered "accidental bodily injury" within the meaning of the subject policy. Under Fourth Circuit law it is clear that for purposes of interpreting insurance policies subject to ERISA, injury or death "that occurs as the result of driving while intoxicated, although perhaps unintentional, is not an `accident' because that result is reasonably foreseeable." Baker v. Provident Life & Acc. Ins. Co., 171 F.3d 939, 942 (4th Cir. 1999) (quoting Cozzie v. Metro Life Ins. Co., 140 F.3d 1104, 1110 (7th Cir. 1998)). See also Poeppel v. Hartford Ins. Co., 87 Fed. Appx. 885, 886, 2004 W.L. 298414,*1 (4th Cir. Feb. 17, 2004). Therefore, the sole issue presented here is whether there is sufficient evidence in the record to support A. C. Newman's finding that Mr. Lamm was intoxicated at the time of the incident.3 The evidence in the medical record supporting that finding was overwhelming. Mr. Lamm had been an alcoholic for over 25 years. The ambulance response notes indicated "Pt/o amputation injury from lawn mower. Pt states 10/10 on pain. + smell believed to be ETOH."4 Although the triage nurse in the emergency room did not record that Mr. Lamm was intoxicated, she did note "ETOH" next to the box for "tox screen" under Diagnostic Orders. A consultation report preceding surgery prepared by Thomas Graham, M.D., described the incident as: "76 y.o. RHD [right hand dominant] WM [white male] intoxicated, got RUE [right upper extremity]

In stating the issue in this way, I am perhaps framing it too generously in favor of plaintiff. Plaintiff has the burden of proving that Mr. Lamm suffered accidental bodily injury which was direct and independent of any other cause. See Lincoln Nat'l Life Ins. Co. v. Evans, 943 F. Supp. 564, 567 (D. Md. 1996). Therefore, it may be more accurate to say that the issue presented is whether plaintiff met her burden of proof. However, my decision does not hinge upon this technical distinction. ETOH is a shorthand for the chemical designation of ethanol which is the alcohol in alcoholic beverages. 2
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caught in lawn mower this afternoon." The report further noted "SH;+etoh abuse." The Operative/Procedure Note, dictated by Vaishali Doolabh, M.D., and ascribed to by Dr. Graham, also reflected that "Mr. Lamm is a 76-year-old right hand dominant individual who was intoxicated and fell off a riding lawn mower on the day of presentation." The note went on to state that "[t]he patient was unable to fully comprehend any discussion secondary to his intoxication."5 Plaintiff suggests that contrary to what is stated in the medical records, Mr. Lamm was not injured as the result of falling off the lawn mower but that the lawn mower ran into him before he got on it. However, she cites no evidence in support of this proposition. Likewise, she suggests that the intoxication observed by Dr. Graham and Dr. Doolabh was caused by morphine injections Mr. Lamm had received, not by alcohol. In that regard plaintiff notes that the triage nurse had indicated that Mr. Lamm was "conscious and oriented +3, i.e., oriented as to time place and self, and that his emotional state was "calm" and his speech was "coherent." Further plaintiff notes that the triage nurse did not record that Mr. Lamm was intoxicated. However, as stated above, the triage nurse did record "ETOH" next to the box where "tox screen" under Diagnostic Orders. In any event, plaintiff's contention that the intoxication noted by the medical doctors was due to morphine rather than alcohol is sheer speculation. Finally, plaintiff has submitted with her motions papers a toxicology report reflecting that Mr. Lamm's blood alcohol level was .076%, which is less than the alcohol concentration level set by Section 10-307 of the Courts & Judicial Proceedings Article of the Maryland Code for

The medical records also reflect that Mr. Lamm had been involved in a prior incident involving a lawn mower in which his right foot had been injured. 3

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considering a person to be "under the influence of alcohol per se."6 There are two fallacies in this contention. First, Mr. Lamm's blood alcohol level of .076% constituted "prima facie evidence" that he was driving while impaired by alcohol under Section 10-307(d). Second, the test reflected in the toxicology report was taken at least two hours after the injury occurred. According to the United States Department of Health and Human Services, blood alcohol content decreases at a minimum rate of 0.01% every 40 minutes. This translates to a 0.015% decrease per hour. Thus, when the injury occurred, Mr. Lamm may be presumed to have had a blood alcohol content of at least 0.106% and to have been "under the influence of alcohol per se" within the meaning of Section 10-307(g). In sum, the evidence fully supports the determination that was made that Mr. Lamm did not suffer an "accidental bodily injury" within the meaning of the subject policy. Accordingly, the decision to deny benefits to plaintiff must be affirmed.

Date: August 6, 2004

/s/ J. Frederick Motz United States District Judge

Provident points out that plaintiff did not submit the toxicology report during the administrative review and therefore contends that the report is inadmissible. See Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 125 (4th Cir. 1994). Presumably, however, the toxicology report was in the medical records available to A.C. Newman, and I will therefore consider it. 4

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND EDNA LAMM v. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY * * * Civil No. JFM-04-1341 * * * ***** ORDER For the reasons stated in the accompanying memorandum, it is, this 6th day of August 2004 ORDERED 1. Plaintiff's motion for summary judgment is denied; 2. Defendant's motion for summary judgment is granted; and 3. Judgment is entered in favor of defendant against plaintiff.

/s/ J. Frederick Motz United States District Judge



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