Sherri Thomas v. United of Omaha Life Insurance Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2493
SHERRI THOMAS,
Plaintiff - Appellant,
v.
UNITED OF OMAHA LIFE INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:12-cv-00973-PJM)
Submitted: June 7, 2013 Decided: July 30, 2013
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gerald I. Holtz, LAW OFFICES OF GERALD I. HOLTZ, LLC, Rockville,
Maryland, for Appellant. Jeaneen J. Johnson, Colleen K.
O'Brien, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sherri Thomas (Plaintiff) appeals the district court’s
grant of summary judgment in favor of United of Omaha Life
Insurance Company (United of Omaha) with respect to her claim
for accidental death benefits under an insurance policy (the
Policy) issued by United of Omaha. We affirm.
I.
On February 12, 2010, Plaintiff’s husband, Duane Middleton
(Middleton), underwent a partial colonoscopy during which the
cecum of his colon was unintentionally perforated, resulting in
his death approximately seven hours later.* Plaintiff, the named
beneficiary under the Policy, subsequently filed a claim with
United of Omaha for $67,000.00 in accidental death benefits
under the Policy. The parties do not dispute that the Policy is
subject to the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1001 et seq.
Under the section of the Policy entitled “ACCIDENTAL DEATH
AND DISMEMBERMENT BENEFITS,” the Policy provides that United of
Omaha will pay the “Loss of Life” benefit if Middleton was
“injured as a result of an Accident, and that Injury is
* The colonoscopy was aborted prior to its completion due to
suboptimal bowel preparation by Middleton.

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independent of Sickness and all other causes . . . .” (J.A.
47). In relevant part, the Policy specifically defines the term
“Accident” for purposes of this provision as:
a sudden, unexpected and unintended event, independent
of Sickness and all other causes. Accident does not
include Sickness, disease, bodily or mental infirmity
or medical or surgical treatment thereof, bacterial or
viral infection, regardless of how contracted.
(J.A. 47).
Under the Policy, United of Omaha possesses “the discretion
to determine eligibility for benefits and to construe and
interpret all terms and provisions of the Policy.” (J.A. 87).
Moreover, “[b]enefits under the Policy will be paid only if
[United of Omaha] decide[s], after exercising [its] discretion,
that the Insured Person is entitled to them,” and “[i]n making
any decision, [United of Omaha] may rely on the accuracy and
completeness of any information furnished by the Policyholder,
an Insured Person or any other third parties.” Id.
The administrative record that United of Omaha had before
it in making its final decision regarding whether to pay or deny
Plaintiff’s claim for accidental death benefits under the
Policy, included, inter alia: (1) the amended death certificate
for Plaintiff’s husband, issued by the State of Maryland; (2)
the Post Mortem Examination Report prepared by Assistant Medical
Examiner Victor Weedn, M.D., for the Office of the Chief Medical
Examiner for the State of Maryland; (3) the private autopsy

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report prepared by Allen Burke, M.D.; (4) Middleton’s medical
records from the Montgomery Endoscopy Center where he underwent
the colonoscopy; and (5) the professional opinion of United of
Omaha’s Medical Director, Thomas Reeder, M.D., regarding the
cause of Middleton’s death, following his review of the claim
file.
The amended death certificate for Middleton listed the
manner of death as an accident and the cause of death as acute
peritonitis due to (or as a consequence of) perforation of the
cecum during a colonoscopy, with hepatitis C, cirrhosis of the
liver, hypertension, and chronic renal insufficiency as other
significant conditions contributing to his death.
In the Post Mortem Examination Report prepared by Dr. Weedn
(Dr. Weedn’s Report), Dr. Weedn concludes that Middleton died of
acute peritonitis due to perforation of the cecum during a
colonoscopy. He further concludes that hepatitis C, cirrhosis
of the liver, hypertension, and chronic renal insufficiency also
contributed to Middleton’s death. Of particular relevance to
the present appeal, Dr. Weedn’s Report states that Middleton, at
the time of his death, was on a liver transplant list, and that
he underwent the colonoscopy as part of his workup for an
anticipated liver transplant due to a family history of colon
cancer. Dr. Weedn learned this information from his first-hand
review of Middleton’s medical records, including records from:

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(1) Shady Grove Adventist Hospital (emergency services); (2) Dr.
Mikhail (primary care physician); (3) Dr. David Doman (the
gastroenterologist who performed the colonoscopy at issue); (4)
Dr. Mark Sulkowski (infectious disease, internal medicine); and
(5) Dr. Alan Kravitz (surgeon). According to Dr. Weedn’s
Report, “[t]he manner of [Middleton’s] death is ACCIDENT.”
(J.A. 134).
In the private autopsy report prepared by Dr. Burke, Dr.
Burke lists Middleton’s immediate cause of death as cecal
perforation with submucosal hemorrhage and early acute
peritonitis.
The colonoscopy procedure report prepared by Dr. Doman
lists “Screening\family history colon cancer” as the
preoperative diagnosis. (J.A. 114).
After reviewing the medical documents in the claim file,
Dr. Reeder, United of Omaha’s Medical Director, opined as
follows in writing:
This seems very straightforward.
He underwent screening colonoscopy to look for colon
pathology in preparation for liver transplantation.
Bowel preparation was poor and the cecum was
perforated as a result of this medical/surgical
procedure. There was no evidence of underlying colon
disease prior to the colonoscopy. The perforation
caused peritonitis, and he died of the resulting
bacteria sepsis.
The perforation did not aggravate his existing health
condition.

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His health condition did not aggravate the effect of
the perforated cecum and peritonitis.
Colon perforation is a known risk of colonoscopy and
would have been noted in the consent form.
(J.A. 93).
United of Omaha denied Plaintiff’s claim for accidental
death benefits upon initial consideration of the claim and upon
administrative appeal. In its final decision letter on
administrative appeal, United of Omaha informed Plaintiff as
follows regarding its reasoning for denying her claim:
Ms. Thomas, we understand that Dr. Weedn indicated
that Mr. Middleton’s death was an accident and the
death certificate was amended to reflect this.
However, perforation is a known risk of a colonoscopy
and therefore, the perforation is not an accident as
defined under the [P]olicy. Also, Mr. Middleton died
of bacterial sepsis. Under the [P]olicy definition of
accident it specifically states accident does not
include bacterial or viral infection, regardless of
how contracted.
In summary, Mr. Middleton’s death was not a sudden,
unexpected or unintended event, independent of
sickness and all other causes. Therefore, we are
unable to provide benefits under the Accidental Death
and Dismemberment portion of [the Policy].
(J.A. 102).
Plaintiff originally brought this action in state court,
but United of Omaha removed it to federal court as an ERISA
case. The parties cross moved for summary judgment. The
district court granted summary judgment in favor of United of
Omaha. This timely appeal followed.

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II.
In an appeal under ERISA, we review the district court’s
grant of summary judgment in favor of United of Omaha de novo,
applying the same standards governing the district court’s
review of United of Omaha’s decision to deny Plaintiff the
sought after accidental death benefits under the Policy.
Williams v. Metropolitan Life Ins. Co., 609 F.3d 622, 629 (4th
Cir. 2010). Because the Policy granted United of Omaha, as the
plan administrator, “the discretion to determine eligibility for
benefits and to construe and interpret all terms and provisions
of the Policy,” (J.A. 87), we review United of Omaha’s decision
to deny Plaintiff the sought after accidental death benefits for
abuse of discretion. Williams, 609 F.3d at 629.
The law in the Fourth Circuit is well-settled that,
“[u]nder the abuse-of-discretion standard, we will not disturb a
plan administrator’s decision if the decision is reasonable,
even if we would have come to a contrary conclusion
independently.” Id. at 630. “To be held reasonable, the
administrator’s decision must result from a deliberate,
principled reasoning process and be supported by substantial
evidence.” Id. (internal quotation marks omitted). In
reviewing the reasonableness of the plan administrator’s
decision, we consider the following nonexclusive factors:

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(1) the language of the plan; (2) the purposes and
goals of the plan; (3) the adequacy of the materials
considered to make the decision and the degree to
which they support it; (4) whether the fiduciary’s
interpretation was consistent with other provisions in
the plan and with earlier interpretations of the plan;
(5) whether the decisionmaking process was reasoned
and principled; (6) whether the decision was
consistent with the procedural and substantive
requirements of ERISA; (7) any external standard
relevant to the exercise of discretion; and (8) the
fiduciary’s motives and any conflict of interest it
may have.
Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan,
201 F.3d 335, 342-43 (4th Cir. 2000).
We note that Plaintiff relies upon Ellis v. Metropolitan
Life Ins. Co., 126 F.3d 228 (4th Cir. 1997) for the proposition
that we must review United of Omaha’s interpretation of the term
“Accident” in the Policy under a modified abuse of discretion
standard because United of Omaha’s dual roles under the Policy
of payor and plan administrator mean that United of Omaha
operates under a conflict of interest in making benefit
decisions. Plaintiff’s reliance on Ellis is behind the times--
indeed, wrong. In Champion v. Black & Decker (U.S.) Inc., 550
F.3d 353 (4th Cir. 2008), we held that the Supreme Court’s
holding in Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105
(2008) required us to abandon our modified abuse-of-discretion
standard in conflict-of-interest cases in favor of the normal
abuse-of-discretion standard. Champion, 550 F.3d at 358-59.
Following Glenn, a plan administrator’s conflict of interest

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should be viewed “as but one factor among the many identified in
Booth for reviewing the reasonableness of a plan administrator’s
discretionary decision.” Williams, 609 F.3d at 631. See also
id. at 630 (citing Ellis, 126 F.3d at 233, as example of pre-
Glenn Fourth Circuit case applying modified abuse-of-discretion
standard in reviewing benefit decision of plan administrator who
operated under a conflict of interest).
Our careful review of the briefing, appellate record, and
relevant case law, including analysis of the Booth factors,
compels us to conclude that United of Omaha did not abuse its
discretion in denying Plaintiff the sought after accidental
death benefits under the Policy for the death of her husband.
The crux of the matter is that United of Omaha acted reasonably
in concluding that Middleton’s death was not an “Accident” as
that term is defined in the Policy. Critically, the
administrative record before United of Omaha contained the Post
Mortem Examination Report of Assistant Medical Examiner Victor
Weedn, M.D. for the Office of the Chief Medical Examiner for the
State of Maryland, which reported that: (1) in September of
2009, due to the advanced stage of Middleton’s liver disease,
“it was decided that he should be referred for liver
transplant”; (2) Middleton was subsequently placed on the liver
transplant list; and (3) “[h]is workup for the liver transplant
included a colonoscopy due to a family history of colon cancer

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(he had benign polyps in at least two previous colonoscopies in
2001 and 2006).” (J.A. 116). The administrative record also
contained the report of Dr. Reeder who, after reviewing the
claim file, stated that “[Middleton] underwent screening
colonoscopy to look for colon pathology in preparation for liver
transplantation.” (J.A. 93). From this evidence, United of
Omaha acted reasonably in concluding that Middleton did not die
as the result of “a sudden, unexpected and unintended event,
independent of Sickness and all other causes.” (J.A. 47).
Rather, the evidence supports the reasonable conclusion that he
died as the result of medical or surgical treatment for liver
disease, which cause of death is excluded from the definition of
accident under the plain language of the Policy. See Whetsell
v. Mutual Life Ins. Co. of New York, 669 F.2d 955, 956 (4th Cir.
1982) (wife not entitled to accidental death benefits as
beneficiary of life insurance policy covering husband who died
as the result of contracting bacterial endocarditis from
infected needle used to administer saline solution intravenously
while recovering from cataract surgery because policy expressly
excluded from coverage “the risk of death caused or contributed
to, directly or indirectly, by disease, by bodily or mental
infirmity, or by treatment or operation for disease or bodily or
mental infirmity”) (internal quotation marks omitted) (emphasis

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omitted); see also id. at 957 (“all deaths caused by medical
treatment necessarily involve mistreatment . . .”).
Plaintiff takes issue with this analysis on the ground that
the administrative record lacks substantial evidence from which
United of Omaha, as the plan administrator, could reasonably
conclude that Middleton’s colonoscopy was ordered and performed
because of his underlying liver disease. In support, Plaintiff
highlights that the administrative record does not contain an
actual medical record belonging to Middleton indicating that he
was on a liver transplant list at the time of his colonoscopy.
Plaintiff also contends that the preoperative diagnosis of
“Screening\family history colon cancer” listed on Dr. Doman’s
colonoscopy procedure report is at odds with the statements in
Dr. Weedn’s Report to the effect that Middleton underwent the
colonoscopy as part of the workup for an anticipated liver
transplant.
Plaintiff’s position is without merit. Dr. Weedn prepared
his report after reviewing first hand Middleton’s medical
records from five providers spanning more than forty years.
There is no evidence in the administrative record to suggest
that Dr. Weedn, who is a licensed medical professional employed
by the State of Maryland, reported Middleton’s medical history
inaccurately based upon such review. Moreover, the statements
in Dr. Weedn’s Report to the effect that Middleton underwent the

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colonoscopy as part of the workup for an anticipated liver
transplant are not inconsistent with the preoperative diagnosis
of “Screening\family history colon cancer” listed on Dr. Doman’s
colonoscopy procedure report. This is because Dr. Weedn’s
Report took the screening\family history of colon cancer
information into account when he stated that Middleton’s “workup
for the liver transplant included a colonoscopy due to a family
history of colon cancer (he had benign polyps in at least two
previous colonoscopies in 2001 and 2006).” (J.A. 116) (emphasis
added). In other words, a colonoscopy was indicated prior to
Middleton undergoing a liver transplant on account of his family
history of colon cancer. In sum, there is no basis upon which
to conclude that United of Omaha acted unreasonably in relying
upon the portions of Dr. Weedn’s Report in which he recounts
medical information he learned about Middleton by reviewing
first hand Middleton’s medical records.
III.
In conclusion, we hold United of Omaha did not abuse its
discretion in denying Plaintiff’s claim for accidental death
benefits under the Policy with respect to the death of her
husband. Accordingly, the district court did not err in
granting summary judgment in favor of United of Omaha. We,
therefore, affirm the judgment below.

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We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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