Alane King, as Conservator and Natural Parent of Amber Lynn Schanus v. Hartford Life and Accident Insurance Company

414 F.3d 994, 35 Employee Benefits Cas. (BNA) 1518, 2005 U.S. App. LEXIS 14935, 2005 WL 1704866

Opinions

COLLOTON, Circuit Judge.

Footnotes

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This appeal involves the review of a decision by Hartford Life and Accident Insurance Company (“Hartford”) to deny a claim for benefits under an employee benefit plan governed by the Employee Retirement Income and Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461. We reverse the decision of the district court granting summary judgment in favor of Hartford, and remand the case to the district court with directions that it be returned to the administrator for further consideration.

I.

Hartford issued a group insurance policy to Prairie Island Indian Community d/b/a Treasure Island Resort and Casino in Minnesota. As part of its employee benefit plan, Treasure Island provided its employees with life insurance benefits and accidental death benefits under the Hartford policy. Martin Schanus, an employee of Treasure Island, died in a motorcycle crash in June 2000, and this dispute involves whether his designated beneficiary is entitled to an accidental death benefit. The beneficiary is Schanus’s daughter, Amber Lynn Schanus, and this action was brought by her mother, Alane King, as conservator for Amber Lynn.

Schanus was killed after the motorcycle he was operating’veered off a road and struck a fence. Schanus was ejected from the motorcycle and suffered fatal head injuries. Blood tests taken after the accident showed that Schanus was legally intoxicated at the time of the crash (with a blood-alcohol level of 0.19), and his death certificate listed “acute alcohol intoxication” as a significant condition contributing to death.

Hartford denied a claim for an accidental death benefit, which would have doubled the life insurance benefit paid to Amber Lynn, on the ground that Schanus’s death was not the result of an “accidental bodily injury” within the meaning of the policy. Alternatively, Hartford asserted that the claim fell within a policy exclusion for losses caused by an “intentionally self-inflicted injury, suicide, or suicide attempt, whether sane or insane.” King then brought an action in Minnesota state district court, alleging that Hartford’s denial of the accidental death benefit was “arbitrary, capricious, and not a fair or logical reading of the policy, language.” Hartford removed the action to the United States District Court for the District of Minnesota because the claim arises under ERISA. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).

In the district court, despite the general rule that a challenge to the decision of a benefits administrator under ERISA should be decided based on the evidence presented to the administrator, see, e.g., Short v. Central States, Southeast and Southwest Areas Pension Fund, 729 F.2d 567; 571 (8th Cir.1984), King presented new evidence in support of the claim for benefits, and Hartford did not object to this unusual procedure;¹ With the record so developed, the parties agreed that the facts were undisputed and filed cross-motions for summary judgment.

Hartford defended its decision that Schanus’s death did not result from an “áccidental bodily injury” by invoking the definition of “accident” set forth in Wick-man v. Northwestern National Insurance Co., 908 F.2d 1077 (1st Cir.1990). The Wickman decision excluded from the scope of “accident” those cases in which “a reasonable person ... would have viewed the injury as highly likely to occur as a result of the insured’s intentional conduct.” Id. at 1088. Applying Wickman, the district court concluded that “neither Hartford’s definition of its plan terms nor its application of those terms to the facts can be considered either arbitrary or capricious,” (Hr’g Tr. at 23), and it granted summary judgment in favor of Hartford. The court, however, expressed “no hesitation whatsoever in indicating that this is an extraordinarily hard rule of law,” and remarked that “[i]t would be very pleasing to this court were the .court of appeals to take a very careful look at this.” (Id. at 26).

On appeal, a panel of this court reversed the grant of summary judgment in-favor of Hartford and remanded the case for further proceedings. King v. Hartford Life and Accident Ins. Co., 357 F.3d 840 (8th Cir.2004). The panel adopted the opinion in Wickman as the applicable test for determining whether Schanus died as a result of accidental bodily injury, and then evaluated whether Schanus’s death was “highly likely to occur” as a result of his drunk driving. Relying on statistical ■ evidence that drunk driving deaths constitute less than one percent of the number of people arrested for drunk driving, the panel concluded that such “long-shot chances” of death by drunk driving failed to satisfy the Wickman test. Id., at 844. We subsequently granted rehearing en banc and vacated the panel’s opinion.

Having considered the matter en banc, we now reverse the grant of summary judgment in favor of Hartford, but we do so on a narrower ground than that articulated by the panel. For the reasons detailed below, we conclude that Hartford’s litigating position concerning the proper interpretation of “accidental bodily injury” is fundamentally inconsistent with its stated basis for denying the claim in 2001 during the administrative process. Under these circumstances, we hold that the administrator’s decision cannot be sustained, and the appropriate remedy is to remand the case to the district court, with directions to return the case to the administrator for application of the standard that Hartford now says should govern the claim.

II.

Several basic principles govern our ■ review of challenges to the decision of an plan administrator to deny a claim for benefits under a plan governed by ERISA. Congress enacted the statute with “expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop.” Pilot Life v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). As distinguished from the “brooding omnipresence in the sky” that was federal common law .prior to Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), see Southern Pac. R. Co. v. Jensen, 244 U.S. 205, 222, 37 S.Ct. 524, 61 L.Ed. 1086 (1917) (Holmes, J., dissenting), Congress intended as a matter of positive law under ERISA that “a body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans.” Franchise Tax Bd. v. Const. Laborers Vacation Trust, 463 U.S. 1, 24 n. 26, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (quoting 120 Cong. Rec. 29,942 (1974) (remarks of Sen. Jav-its)).

In Firestone Tire and Rtibber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court took a major step in developing this “federal common law” of ERISA by explaining the appropriate standard of review for actions brought under 29 U.S.C. § 1132(a) to recover benefits allegedly due to a participant or beneficiary under an ERISA-regu-lated plan. The Court in Bruch concluded that principles of trust law should guide the determination of a standard of review. Under these established principles, unless a benefit plan gives the plan administrator power to construe disputed or doubtful terms, or provides that eligibility determinations are to be given deference, judicial review of the administrator’s decision is de novo. Id. at 115,109 S.Ct. 948. In such a case, a federal court may apply other aspects of the federal common law developed under ERISA to construe disputed terms in a plan, e.g., Brewer v. Lincoln National Life Insurance Co., 921 F.2d 150, 153-54 (8th Cir.1990), and, if there is good cause to do so, the court may allow parties to introduce evidence beyond the materials presented to the administrator. Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir.1993); Weber v. St. Louis Univ., 6 F.3d 558, 560-61 (8th Cir.1993).

Where a plan gives the administrator discretionary power to construe uncertain terms or to make eligibility determinations, however, the landscape is much different. In those circumstances, the administrator’s decision is reviewed only for “abuse ... of his discretion,” Bruch, 489 U.S. at. Ill, 109 S.Ct.- 948 (quoting Restatement (Second) of Trusts § 187 (1959)), and the administrator’s interpretation of uncertain terms in a plan “will not be disturbed if reasonable.” Id. In an effort to give content to the requirement of “reasonable” interpretation by plan administrators, our court has catalogued several factors to be considered in the analysis. These include “whether their interpretation is consistent with the goals of the Plan, whether their interpretation renders any language of the Plan meaningless or internally inconsistent, whether their interpretation conflicts with the substantive or procedural requirements of the ERISA statute, whether they have interpreted the words at issue consistently, and whether their interpretation .is contrary to the clear language of the Plan.” Finley v. Special Agents Mut. Benefit Assoc., Inc., 957 F.2d 617, 621 (8th Cir.1992) (citing de Nobel v. Vitro Corp., 885 F.2d 1180, 1188 (4th Cir.1989)). These so-called “Finley factors” inform, our analysis, but “[t]he dispositive principle remains ... that where plan fiduciaries have offered a ‘reasonable interpretation’ of disputed provisions, courts may not replace [it] with an interpretation of their own — and therefore cannot disturb as an ‘abuse of discretion’ the challenged benefits determination.” de Nobel, 885 F.2d at 1188 (alteration in original) (internal quotes omitted). Thus, while a court may develop the “federal common law” of ERISA to interpret a benefit plan in a case governed by de novo review, an administrator with discretion under a plan to construe uncertain terms is -not bound by this same interpretation, so long as the administrator adopts an interpretation that is “reasonable.” Cf. National Cable and Television Ass’n v. Brand X Internet Serv., — U.S. —, 125 S.Ct. 2688, 2700-01, — L.Ed.2d-(2005) (holding that de novo interpretation of ambiguous statute by court of appeals does not preclude administrative agency from adopting a different “reasonable” interpretation under the doctrine of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Review for abuse of discretion also ensures that an administrator’s decision is supported by substantial evidence, that is, “such relevant evidence as a reasonable mind might accept as adequate to •support a conclusion.” Donaho v. FMC Corp., 74 F.3d 894, 900 & n. 10 (8th Cir.1996) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L:Ed. 126 (1938)), abrogated on other grounds ■ by Blacic & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S.Ct. 1965, 155 ’L.Ed.2d 1034 (2003). When reviewing a denial of benefits by an administrator who has discretion under an ERISA-regu-lated plan, a reviewing court “must focus on the evidence available to the plan administrators at the time of their decision and may not admit new evidence or consider post hoc rationales.” Conley v. Pitney Bowes, 176 F.Sd 1044, 1049 (8th Cir.1999). Because ERISA requires employee benefit plans to “provide adequate notice” to any ■participant or beneficiary whose claim is denied, “setting forth the specific reasons for such denial” in a manner “calculated to be understood by the - participant,” 29 U.S.C. § 1133, we have held that plan trustees must “briefly state the facts of the case and the rationale for their decision,” Brumm v. Bert Bell NFL Retirement Plan, 995 F.2d 1433, 1436 (8th Cir.1993) (internal quotation omitted), and we have refused to allow claimants “to be sandbagged by after-the-fact plan interpretations devised for purposes of litigation.” Marolt v. Alliant Techsystems, Inc., 146 F.3d 617, 620 (8th Cir.1998); see also Short, 729 F.2d at 575. In sum, an administrator with discretion under a benefit plan must articulate its reasons for denying benefits when it notifies the participant or beneficiary of an adverse decision, and the decision 'must be supported by both a reasonable interpretation of the plan and substantial evidence in the materials considered by the administrator.

III.

A.

The benefit plan at issue in this case gives discretion to the administrator. A general provision of the group life insurance policy, in explaining who interprets terns and conditions in the policy, states that “[w]e have full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of the Group Insurance Policy.” (Appellant’s App. at 58) (hereinafter “App.”). The administrator’s decisions, therefore, are subject to review for abuse of discretion under the Bruch framework. Our court, of course, reviews de novo the district court’s decision to grant summary judgment.

In describing the accidental death benefit sought by Amber Lynn Schanus, the policy explains that:

The Hartford will pay [the accidental death benefit] if [the participant] suffer[s] accidental bodily .injury while [his] insurance is in force and:

(1) a Loss results directly from such injury, independent of all other causes; and

(2) such a Loss occurs within 90 days after the date- of the accident causing the injury.

(App. at 56) (emphasis- added). The plan does not define the term “accidental.” It then provides a list of exclusions for accidental death benefits, including that “[n]o benefit will be paid for a loss caused or contributed to by ... (6) any intentionally self-inflicted injury, suicide, or suicide attempt, whether sane dr insane.” (App. at 57).²

After Martin Schanus’s death, King presented proof of death and the necessary claim forms to Hartford. On December 26, 2000, Hartford awarded a death benefit of $42,916.04 to Amber Lynn, but denied her claim for an accidental death benefit. Hartford’s initial denial letter stated that:

The information reviewed including the toxicology findings demonstrates that by driving while intoxicated, Mr. Schanus voluntarily exposed himself to an unnecessary danger which resulted in a fatal self inflicted injury. The Black’s Law Dictionary, Sixth Edition, West Publishing Company, 1990, defines Accidental as:

“Happening by chance, or unexpectedly; taking place not according to usual course of things; casual; fortuitous.” these conditions that a serious bodily injury would occur and that he voluntarily caused these conditions to exist, we have also concluded that Mr. Scha-nus’ death was caused or contributed to by a self-inflicted injury. Since his death was caused or contributed to by an injury specifically excluded from coverage, no Group Accidental Death benefits are payable.

Given his blood alcohol level, his bodily injury can in no way be considered unexpected, happening by 'chance or fortuitous. On the contrary, it could be expected that if he drove his vehicle in such a reckless manner and in an intoxicated condition, serious bodily injury could result. As such, we have concluded that the insured did not suffer an accidental bodily injury within the meaning of the policy. .

Since it could be expected that if Mr. Schanus operated his vehicle under

(App. at 86-87).

According to - the plan, a beneficiary whose claim is denied initially may “appeal to the Insurance Company for a full and fair review.” (App.67). Hartford then will respond with “a written decision” that “will include specific reasons for the decision and specific references to the plan provision on which the decision is based.” (Id.) King appealed Hartford’s initial denial of an accidental death benefit in a letter dated February 21, 2001, arguing that Hartford’s denial was “unreasonable and not supported by the evidence.” (App. at, 90).

On June 14, 2001, Hartford responded with a decision letter denying King’s appeal and concluding that Sehanus’s death “was not an accident.” (App. at 91). In this written decision, Hartford explained that its letter dated December 26, 2000, (i.e., the initial denial letter) “lists the evidence contained in [Schanus’s] claim file,” and informed King that “[o]ur decision to uphold the denial of his claim for benefits is based upon that evidence and your letter dated 2/21/01.” (Id.)

In explaining its rationale for concluding that Schanus did not suffer “accidental bodily injury” that would trigger the accidental death benefit, Hartford wrote that “a reasonable person would have known that death or serious injury was a reasonably foreseeable result of driving while intoxicated.” (App. at 92). The decision further opined that “[a] death is not accidental when it is a foreseeable result of the insured’s voluntary act of becoming intoxicated,” and concluded that Schanus’s death “was not am accident.” (Id.)

Hartford’s decision cited, as “case law supporting this defense,” the opinion in Weisenhorn v. Transamerica Occidental Life Insurannce Co., 769 F.Supp. 302 (D.Minn.1991), which held that an insured who was killed in a drunk driving accident could not recover an accidental death benefit where the policy said no benefits would be paid if loss “results from” the insured’s “commission of ... [a] felony.” Id. at 304. The court in Weisenhorn reasoned that the insured’s felonious drunk driving had caused the fatal accident and that “being killed while committing felonious drunk driving is a foreseeable risk.” Id. at 306. The Hartford decision also cited as “supporting” authority the case of Brewer v. Lincoln National Life Insurance Co., 921 F.2d 150, 153-54 (8th Cir.1990), which held that an insurer properly denied health insurance coverage under an .exclusion for “mental illness.” The June 2001 decision did not incorporate or otherwise mention the reasoning of Hartford’s initial denial letter from December 2000, and it did not refer to the First Circuit’s decision in Wickman defining the term “accidental.” Finally, Hartford’s decision letter in June 2001 stated that “[i]n some circuits the self-inflicted injury exclusion is also a recognized defense,” and “we assert it as a defense in this case as well.’’ (App. at 92).

B.

As explained above, where a benefit plan ■gives the administrator discretion to interpret uncertain terms in the plan, we typically begin our analysis by considering whether the administrator’s interpretation of the terms is “reasonable.” In its final decision on Amber Lynn’s claim, Hartford said that Martin Schanus did not suffer “accidental bodily injury,” ■ triggering the accidental. death benefit, because “a reasonable person would have known that death or serious injury was a reasonably foreseeable result of driving while intoxicated,” and “[a] death is not accidental when it is a foreseeable result of the insured’s voluntary act of becoming intoxicated.” (App. at 92). Our normal approach, therefore, would be to consider whether it is “reasonable” to construe the term “accidental” to exclude injuries and deaths that are a “reasonably foreseeable” result of the insured’s conduct.

This inquiry would present a debatable question. Some courts have accepted as reasonable an interpretation that excludes “reasonably foreseeable” injuries from the scope of “accidental” injuries, e.g., Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104, 1110 (7th Cir.1998), and these decisions lend support to Hartford’s decision. If “accidental” means “unexpected,” and if “reasonably foreseeable” is a reasonable synonym for “expected,” then one might well conclude that the proffered standard passes muster under the deferential ERISA standard of review. On the other hand, a “reasonably foreseeable” standard is quite broad; if all “reasonably foreseeable” injuries are excluded from coverage, then the definition of accident may frustrate the legitimate expectations of plan participants, for insurance presumably is acquired to protect against injuries that are in some sense foreseeable. If Hartford’s definition of “accidental bodily injury” were so narrow that it could eliminate many injuries that an average plan participant would expect to be covered based on the plain language of the plan, then there would be a question whether it conflicts with the statutory requirement that a plan be “written in a manner calculated to be understood by the average plan participant.” 29 U.S.C. § 1022(a).

We find it unnecessary and inappropriate to reach the issue in this case, because Hartford has not defended its denial of Amber Lynn’s claim for an accidental death benefit on the ground that Martin Schanus’s death was “reasonably foreseeable.” Rather, Hartford consistently has maintained in litigation that the proper definition of “accidental” in its policy is that set forth in the First Circuit’s decision in Wickman, which held that there is no accident if “a reasonable person, with background' and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured’s intentional conduct.” 908 F.2d at 1088 (emphasis added). Hartford argues that this Wickman standard is “a direct descendant” of our court’s decision in City of Carter Lake v. Aetna Cas. & Sur. Co., 604 F.2d 1052 (8th Cir.1979), (Br. of Appellee at 10), which “reject[ed] the argument that a result is expected as that term is used in insurance policies simply because it was reasonably foreseeable,” and held that there was no “accident” under a general liability insurance policy only “[i]f the insured knew or should have known that there was a substantial probability that certain results would follow his acts or omissions.” Id. at 1058-59 (emphases added). Carter Lake specifically distinguished between standards of “reasonably foreseeable” and “substantial probability,” stating that the latter requires not only that a reasonably prudent person would be alerted to the possibility of results occurring, but that such a reasonable person would be forewarned that the results are “highly likely to occur.” Id. at 1059 n. 4; see also Wickman, 908 F.2d at 1088 (citing Carter Lake ).³

Hartford argues that its litigating position is not inconsistent with the rationale for its decision on Amber Lynn’s claim, because although the decision denying the her administrative appeal applied a “reasonably foreseeable” standard, the initial denial letter cited Black’s Law Dictionary, which defined “accidental” as “happening unexpectedly.” Hartford asserts that if the final decision and the initial denial letter are read together, they show that Hartford applied the Wickman standard during the administrative process.

We disagree with Hartford’s interpretation of the administrative decision. The decision on Amber Lynn’s appeal clearly applied a “reasonably foreseeable” standard. The decision letter cited two court decisions as “case law supporting” its rationale; it did not cite Wickman, and neither cited case applied the Wickman rationale. The initial denial letter, which Hartford suggests we should consider as further explanation of its rationale, does not state that the administrator applied the Wickman rationale and- a standard of “substantial probability” or “highly likely to occur” in denying the claim. ’ The initial denial, invoking Black’s Law Dictionary, merely concluded that Schanus’s death “could be expected,” which begs the question whether “expected” means “reasonably foreseeable” or “highly likely.” Hartford acknowledges that the Wickman court itself thought the term “unexpected” left “some ambiguity with respect to the ‘level of expectation ... necessary for an act to constitute'an accident,’” (Br. of Appellee at 15-16 (quoting Wickman, 908 F.2d at 1085)); and ■ Wickman described “accident” and .“unexpected” as “equally ambiguous terms.” 908 F.2d at 1087. Thus, accepting Hartford’s invitation to read the two letters together, the final decision makes clear that Hartford applied a standard that excluded from the definition of “accidental” an injury or death that was “reasonably foreseeable,” even if a reasonable person would not have viewed ’ it as “highly likely to occur.”

We thus conclude that this case falls in the category where an administrator offers a post hoc rationale during litigation to justify a decision reached on different grounds during the administrative process. Even assuming it is reasonable to interpret the term “accidental” to exclude “reasonably foreseeable” injuries, Hartford does not defend the administrator’s decision on that basis. We will not uphold Hartford’s decision on a ground that is fundamentally inconsistent with its emphatic position that Wickman sets forth the proper interpretation of the term “acciden tal” in the Hartford insurance policy, and its assertions that “applying Wiekman here contributes to national uniformity and predictability of results, -which in the future will promote early resolution of similar disputes.” (Br. of Appellee at 11).

Whether a reasonable person would have viewed Schanus’s injuries and death as “highly likely to occur,” Wickman, 908 F.2d at 1088, was not part of the administrator’s stated rationale for .denying Amber Lynn’s claim. We do not know, for example, whether the administrator interprets “highly likely” as used in Wiekman to mean “more likely than not,” some lesser probability that exceeds “reasonably foreseeable” but falls short of a fifty-percent chance, cf. Carter Lake, 604 F.2d at 1059 n. 4 (equating “substantial probability” with “highly likely to occur”), or something else that does not depend at all on statistical probabilities. And the administrator did not discuss whether evidence concerning how a reasonable person would view the likelihood of Schanus’s death was sufficient to satisfy the Wiekman standard, however that might be precisely defined by Hartford. Without a stated rationale from the administrator applying what Hartford now says is the correct legal standard, we cannot determine whether a proffered interpretation of “accidental” is reasonable, or whether there is substantial evidence to support a denial of benefits under such an interpretation.

C.

Hartford argues alternatively that we should affirm on a ground not relied upon by the district court, namely, that Martin Schanus’s injuries and death are ineligible for coverage under a specific policy exclusion. It invokes an exclusion providing that “[n]o benefit will be paid for a loss caused or contributed to by ... (6) any intentionally self-inflicted injury, suicide, or attempted suicide, whether sane or insane.” (App. at 57). Hartford admits that Schanus did not intend to injure himself by driving his motorcycle on the night of his death, but claims that Schanus’s alcohol intoxication was itself an “intentionally self-inflicted injury” that “contributed to” his injuries and death.

We reject this alternative argument because it is based on an unreasonable interpretation of the plan, and because it represents another effort to uphold the administrator’s decision with a post hoc rationale not expressed when benefits were denied. The most natural reading of the exclusion for injuries contributed to by “intentionally self-inflicted injury, suicide, or attempted suicide” does not include injuries that were unintended by the participant, but which were contributed to by alcohol intoxication. The Seventh Circuit seemed to think this self-evident when it explained in a case involving death by drunk driving that the plan at issue “does not specifically exclude from coverage the conduct at issue but does exclude other conduct — notably suicide, attempted suicide and purposefully self-inflicted injury.” Cozzie, 140 F.3d at 1111 (emphases added). One rarely thinks of a drunk driver who arrives home safely as an “injured” party, and to define drinking to the point of intoxication as an “intentionally self-inflicted injury, suicide, or attempted suicide” is at least a “startling construction.” See Brumm, 995 F.2d at 1440.

But even if Hartford’s reading of “intentionally self-inflicted injury” might be a reasonable interpretation of the language standing alone, cf. Nelson v. Sun Life Assurance Co. of Canada, 962 F.Supp. 1010, 1013 (W.D.Mich.1997), it is not reasonable in the context of this policy, because it renders meaningless other important policy language. See Finley, 957 F.2d at 621. The very next exclusion in Hart ford’s policy states that no benefit will be paid for a loss caused or contributed to by “(7) taking drugs, sedatives, narcotics, barbiturates, amphetamines or hallucinogens unless prescribed for or administered to you by a licensed physician.” (App. at 57). If the exclusion for “intentionally self-inflicted injury” eliminated coverage for unintended injuries caused or contributed to by intentionally ingesting substances into the body, then there would be no reason for the seventh exclusion regarding the taking of drugs and narcotics. Nart-ford’s interpretation would render the latter exclusion meaningless, and we think it is therefore unreasonable.

In any event, Hartford’s current position concerning the exclusion for “intentionally self-inflicted injury” is another post hoc rationale that differs from the stated basis for denying benefits. The decision on Amber Lynn’s appeal mentioned the self-inflicted injury exclusion almost as an afterthought, and did not provide any reasoning. ‘ (App. at 92). The initial denial letter, which Hartford says we should consider to understand its reasoning, explained that “[t]he information reviewed including the toxicology findings demonstrates that by driving while intoxicated, Mr. Schanus voluntarily exposed himself to an unnecessary danger ivhich resulted in a fatal self inflicted injury.” (App.86) (emphasis added). This rationale is inconsistent with Hartford’s current position that alcohol intoxication was the “intentionally self-inflicted injury.” Scha-nus’s alcohol intoxication was not a fatal self-inflicted injury; it is evident that when Hartford denied the claim, it was referring to Schanus’s head injury as the “self-inflicted injury,” because the head injury — ■ not the drinking — was “fatal.” Accordingly, we reject Hartford’s argument that we should affirm the district court’s grant of summary judgment on the alternative ground that Schanus’s alcohol intoxication was an “intentionally self-inflicted injury” that contributed to his death. ■

D.

The question remains how to resolve this appeal. We think the posture of this case is comparable to those in which the administrator of an ERISA-regulated plan denies á claim for benefits based on an unreasonable interpretation of terms in the plan. ' Here,’ by asserting that the Wickman test of “highly likely to occur,” rather than a “reasonably foreseeable” standard, should' govern whether, Amber Lynn is entitled' to “accidental death benefits” under the plan,' Hartford effectively concedes that it applied the wrong definition of “accidental” in denying the claim.

Under these circumstances, we believe the proper remedy is to return the case to the administrator for reevaluation of the claim under what Hartford.says is the correct standard. The statute affords -the courts a range of remedial powers under ERISA, 29 U.S.C. § 1132(a), and returning the case to a plan administrator for further consideration is often appropriate. E.g., Shelton v.. ContiGroup Companies, Inc., 285 F.3d 640, 644 (8th Cir.2002); Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1288 (10th Cir.2002); Gallo v. Amoco Corp., 102 F.3d 918, 923 (7th Cir.1996); Miller v. United Welfare Fund, 72 F.3d 1066, 1073-74 (2d Cir.1995), In particular, when an administrator abandons in litigation its original basis for denying benefits, the better course generally is to return the case to the administrator, rather than to conduct de novo review under a plan interpretation offered for the first time in litigation. See Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 392, 398 & n. 11 (5th Cir.1998). For “[i]t is not the court’s function ab initio to apply the correct standard to [the participant’s] claim. That function* under the Plan, is reserved to the Plan administrator.” Saffle v. Sierra Pac. Power Co. Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 461 (9th Cir.1996) (internal quotation omitted); see also Jones v. Metro. Life Ins. Co., 385 F.3d 654, 665 (6th Cir.2004) (remanding to district court for return to administrator after concluding that administrator applied impermissible definition of “accident” in denying benefits). In this case, a return to the administrator has the additional salutary effect of permitting the administrator to. consider in the first instance evidence received by the district court, but not presented to the administrator, concerning whether a reasonable person would have viewed Schanus’s injuries and death as “highly likely to occur” as a result of his operating a motorcycle while intoxicated.⁴

* * - * * * *

For the foregoing reasons, we reverse the judgment of the district court granting summary judgment in favor of Hartford, and remand the case with instructions to return the claim to the administrator for reevaluation of Amber Lynn’s claim ■ for accidental benefits under the Wickman standard that Hartford asserts should be applied.

Lay, Bright, Wollman, Murphy, Bye, Melloy, Smith, and Benton, Circuit Judges, join this opinion in its entirety. Riley, Circuit Judge, joins Parts II, III.A, and III.C of this opinion.

1

. Hartford did object to two exhibits proffered by King, but did not complain about the introduction of statistical evidence concerning the frequency of'injuries and deaths from drunk driving. See Reply Mem. in Supp. of Def.’s Mot. for Summ. J. (R. Doc. 14 at 2).

2

. The other exclusions are (1) sickness, (2) disease, (3) any medical treatment for sickness or disease, (4) any infection, except a pus-forming infection of an accidental cut or wound; (5) war or any act of war, whether war is declared or not, and (6) taking drugs, sedatives, narcotics, barbiturates, amphetamines or hallucinogens unless prescribed for or administered to you by a licensed physician.

3

. The dissent insists that the Wickman court did not adopt a specific definition of accidental injury that calls for an evaluation whether a reasonable person would have viewed the injury as highly likely to occur, and that Hartford did not endorse such a definition in this litigation. Post at 1011. We think the dissent's reading is impossible to square with Hartford's quotation of Wickman 's statement that in the objective analysis of the insured’s expectations, one must ask whether "a reasonable person, with background and characteristic similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured’s intentional conduct,” 908 F.2d at 1088, Hartford's observation that the First Circuit decided Wickman by “applying this test,” and Hartford's assertion that "the Wickman test" is the proper method of analysis in this case. (Br. of Appellee at 9-10).

Nor do we agree that the Wickman court’s analysis is "devoid of any discussion about whether a reasonable person in Mr. Wick-man’s shoes would have viewed death as 'substantially' or ‘highly’ likely to occur.” 'Post at 1011. The heart of the First Circuit's analysis noted the magistrate judge’s conclusion that Wickman should have known that death was "substantially likely to occur,” observed that " 'substantially likely to occur’ is ail equivalent, if not tougher, standard to 'highly likely to occur,' ” and thus concluded that the magistrate "applied an acceptable legal standard.” Id. at 1089. Hartford itself defined the "second prong of the Wickman test” to mean "whether a reasonable person would view the injury as 'highly likely to occur,' " and then urged this court to reject what Hartford characterized as a "strained interpretation” of “highly likely to occur” adopted in West v. Aetna Life Ins. Co., 171 F.Supp.2d 856 (N.D.Iowa 2001). (Br. of Appellee at 30).

4

. The dissent urges that even when a plan administrator abandons in litigation its stated basis for denying benefits, the court should • nonetheless consider whether the abandoned ' rationale provides a sufficient basis to reject the beneficiary's claim. Post at 1012. We think the better course in our adversarial system is for the court to limit its consideration to grounds actually advanced before the court. If Hartford does not wish to defend the interpretation that an injury is not "accidental’' simply because it is "reasonably foreseeable,” then it is not our place to press that position for the insurer. We suspect, moreover, that the claimant in this case will feel less "sandbagged,” post at 1012, if she has an opportunity for consideration of her claim at the administrative level under the standard that Hartford now says should apply, than if her claim is rejected by-this court on a basis not even urged by Hartford in its briefs on appeal.

Of course, if a plan administrator attempts to gain a tactical advantage by proffering a new plan interpretation for the first time in litigation, then we are "free to ignore” it, Marolt, 146 F.3d at 620, and we need not always return a case to an administrator where a new interpretation is offered in litigation. See Schadler, 147 F.3d at 398 n. 11 (disclaiming any such "steadfast rule”). Here, however, Hartford has declined to maintain its original, narrower interpretation of "accidental injury,” and we see no potential for abuse in permitting the administrator to consider in the first instance how Wick-man 's more generous interpretation of accidental injury, which Hartford now embraces, should be applied in this case.