United States District Court, Northern District of Illinois, Eastern Division
February 28, 2000
CARLA A. HOWE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ROBERT CHARLES HOWE, DECEASED, PLAINTIFF,
ZURICH AMERICAN INSURANCE COMPANY, DEFENDANT.
The opinion of the court was delivered by: Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Carla Howe ("Carla"), both individually and as personal
representative of the estate of her late husband Robert Charles
Howe ("Robert"), has sued Zurich American Insurance Company
("Zurich")*fn1 to recover
death benefits under a policy issued by Zurich to implement the
Flexible Benefit Plan ("Plan") adopted by Zurich for its
employees. Zurich has moved for summary judgment under
Fed.R.Civ.P. ("Rule") 56, the parties have complied with the
requirements of Rule 56 and this District Court's related LR 56.1
and the motion is ripe for decision. For the reasons stated here
with comparative brevity, the motion is granted and this action
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
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 dispute in this case — instead the
question is one of law.
On that score our Court of Appeals has consistently read the
seminal decision in Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) as teaching
that where, as in this case, such broad discretion as is
expressed in Plan § 5.2(d) is granted to a plan administrator,
judicial intervention is appropriate only where the decision is
arbitrary and capricious (see, e.g., the recent case cited in
Carla's own response to Zurich's motion, Carr v. Gates Health
Care Plan, 195 F.3d 292, 294 (7th Cir. 1999)). It would be
difficult to draft a plainer vesting of such discretion than the
one quoted from Plan 5.2(d).*fn3 And although our Court of
Appeals has on occasion used even more colorful language to
characterize the limitation placed on judicial scrutiny of plan
administrator determinations under such circumstances, it
suffices to list "downright unreasonable" (Carr, 195 F.3d at
294) or "completely unreasonable" (Mers v. Marriott Int'l Group
& Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1021
(7th Cir. 1998)) as typical statements that define the highly
limited scope of review..
As stated in n. 2, "aircraft" is not defined in the Policy, and
that word might perhaps be arguably susceptible of more than one
reading in the context of a non-powered means of air travel such
a glider or hang glider. But that is not really the issue —
rather the question is whether Zurich was "arbitrary and
capricious" or "downright unreasonable" or "completely
unreasonable" in its reading of the term to include a hang
glider. And given the existence of such decisions as Totten v.
New York Life Ins. Co., 298 Or. 765, 772, 696 P.2d 1082, 1087
(1985) and Fielder v. Farmers New World Life Ins. Co.,
435 F. Supp. 912, 914 (C.D.Cal. 1977),*fn4 and the breadth of the
definition of "aircraft" in such sources as Webster's Third New
Int'l Dictionary at 46 (1986) — all of them reading "aircraft"
broadly enough to embrace a hang glider — that question must be
answered in the negative.
Just two other points bear brief discussion. For one, there is
no basis for applying a different standard of review or reaching
a different conclusion on any premise that Zurich is somehow
involved in an inappropriate conflict of interest (see Carr,
195 F.3d at 296 and the numerous cases cited there). Second,
Carla is availed nothing by the fact that back in 1989 (some
years before issuance of the Policy) a Zurich employee responded
to Robert's question whether "any of the insurance plans
available through Zurich" contained any "exclusions for high-risk
sports" by stating that the then-available accidental death and
dismemberment policy did not cover "injuries or loss of life
caused by or resulting from piloting an airplane." Nothing has
been offered up by Carla to support any asserted reliance by
Robert on the use of the word "airplane" rather than "aircraft"
in that extremely brief note, even apart from the question
whether any such reliance — even if it had been shown — would
have been reasonable under all the circumstances.
There is no genuine issue of fact, and Zurich is entitled to a
judgment as a matter of law. This action is dismissed.
The hazards insured against by this policy are:
Injury sustained by a Covered Person anywhere in the
world. This includes injury sustained while the
Covered Person is a passenger, riding in or on;
boarding; or getting off:
A. any civilian aircraft with a current and valid
standard category airworthiness certificate (if it
is not owned, leased or operated by the
Policyholder). The aircraft must be operated by a
pilot with current and valid:
1. Medical certificate; and
2. Pilot certificate with proper rating to pilot
B. any transport type aircraft operated by the
Military Airlift Command (MAC) of the United
States. This includes similar air transport service
run by any government agency.
Insurance is not provided:
If the Covered Person is the pilot, operator, member
of the crew, or cabin attendant of the aircraft.
For any loss caused by, contributed to or resulting
from injury sustained in or on, boarding, or getting
1. any aircraft being used for or in connection with
2. any aircraft being used for tests or experimental
3. any aircraft that requires a special permit or
waiver from the agency that has jurisdiction over
civil aviation, even if granted;
4. any aircraft used or under lease and operated by
the Policyholder or a Covered Person. This includes
operation by their employees or members of their