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HOWE v. ZURICH AM. INS. CO.

February 28, 2000

CARLA A. HOWE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ROBERT CHARLES HOWE, DECEASED, PLAINTIFF,
V.
ZURICH AMERICAN INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Shadur, Senior District Judge.

MEMORANDUM OPINION AND ORDER

Facts

Robert had been employed by Zurich since 1987 as a risk engineer (an ironic title given the manner of his April 23, 1997 death), and at the time of his death his job title was Chief Risk Engineer. Robert's death came from a crash that occurred while he was a pilot operating a hang glider for recreational purposes.

In relevant part the policy at issue ("Policy," Zurich's No. GTU-83-32-370) set out this among other coverage exclusions:

Coverage Excluded. We do not pay any claim that is caused by, contributed to, or results from:
h. Travel or flight in any aircraft*fn2 except to extent stated in the "Description of Hazards."

And that "Description of Hazards" (reproduced in Ex. 1 to this opinion) expressly included any injury that an insured sustains while a passenger in certain specified aircraft, and it then went on to specify this express exclusion:

Insurance is not provided:

If the covered person is the pilot, operator, member of the crew, or cabin attendant of the aircraft.

After its review of Carla's claim, Zurich as the designated Plan Administrator — ultimately through reaffirmance by its ERISA review committee — rejected the claim on the ground that a hang glider is an "aircraft" within the scope of that exclusion. That determination was made by Zurich pursuant to the authority granted by Plan § 5.2(d):

The Plan Administrator shall have the sole responsibility for the administration of the Plan subject to duties that it has delegated to third parties. Except as herein expressly provided, the Plan Administrator shall have the exclusive right to: interpret the provisions of the Plan, determine any questions arising hereunder or in connection with the administration of the Plan (including the remedying of any omission, inconsistency or ambiguity). The Plan Administrator's decision or action in respect thereof shall be conclusive and binding upon any and all Participants, Dependents, or former Participants.

Relevant Standards and their Application

Although Rule 56 requires that the facts be viewed from the nonmovant's perspective, taken with the benefit of all reasonable inferences, that provides no solace for nonmovant Carla here. There is after all no factual ...


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