Jensen v. Life Insurance Company of North America

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 4, 2025
• Docket: 24-4014
• Status: Unpublished

Opinion

Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS April 4, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court JILL L. JENSEN,

Plaintiff - Appellant,

v. No. 24-4014 (D.C. No. 2:22-CV-00293-DAK) LIFE INSURANCE COMPANY OF (D. Utah) NORTH AMERICA,

Defendant - Appellee.

_________________________________

ORDER AND JUDGMENT * _________________________________

Before MORITZ, MURPHY, and CARSON, Circuit Judges. _________________________________

Jill Jensen’s husband suffered from chronic pain and anxiety, conditions that

his doctors treated with oxycodone and clonazepam. He died from toxicity of those

drugs in 2019, and Life Insurance Company of North America (LINA) denied

accidental-death benefits based on an exclusion for loss caused by medical treatment

of sickness. Like the district court, we affirm the denial because the policy’s

language unambiguously excludes benefits.

This order and judgment is not binding precedent, except under the doctrines *

of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 2

Background

Before his death, Steven Jensen worked for Codale Electric Supply, Inc., a

Delaware entity and multistate employer that established a group employee welfare

benefit plan (the Plan) governed by the Employee Retirement Income Security Act

(ERISA), 29 U.S.C. §§ 1001–1461. The Plan provides benefits for accidental death

and dismemberment (AD&D) through a group accident policy from LINA. The

policy’s effective date is July 1, 2010, and it includes a choice-of-law provision

stating that it is governed by Delaware law. Codale, the Plan administrator, gave

LINA “the authority, in its discretion, to interpret the terms of the Plan, including the

[p]olic[y]; to decide questions of eligibility for coverage or benefits under the Plan;

and to make any related findings of fact.” App. 87.

Steven suffered from chronic pain for years, which his doctor treated with a

prescription for oxycodone. Steven’s doctor renewed that prescription six weeks

before Steven’s death. On January 30, 2019, Steven saw a different doctor for his

anxiety and received a prescription for clonazepam. On the morning of February 1,

2019, Jensen found Steven dead in their bedroom. An autopsy determined that Steven

died of oxycodone and clonazepam toxicity. 1

Jensen sought AD&D benefits from LINA, but LINA denied the claim in

December 2019, citing the policy’s exclusions for losses caused by voluntary

1 As the district court noted and the parties don’t dispute, “[t]he potential for death when mixing oxycodone and clonazepam is documented in medical literature.” App. 260. 2 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 3

ingestion of drugs and by medical treatment of sickness. Jensen administratively

appealed, and in April 2020, LINA dropped the voluntary-ingestion exclusion but

maintained that the medical-treatment exclusion precluded AD&D benefits. 2

Jensen then filed this action under 29 U.S.C. § 1132(a)(1)(B), which

authorizes a beneficiary of an ERISA-governed plan to bring a civil action “to

recover benefits due to [them] under the terms of [the] plan.” 3 At summary judgment,

the district court entered judgment for LINA, determining under de novo review that

the medical-treatment exclusion unambiguously precluded payment of benefits. 4

Jensen appeals.

Analysis

We review the district court’s summary-judgment ruling de novo. LaAsmar,

605 F.3d at 795–96. And “[l]ike the district court, we must first determine the

2 LINA approved and paid Jensen’s life-insurance claim. 3 Jill’s complaint named both LINA and Cigna Health and Life Insurance Company as defendants, but she voluntarily dismissed her claims against Cigna before it was served. 4 Summary judgment in an ERISA case “is merely a vehicle for deciding the case; the factual determination of eligibility for benefits is decided solely on the administrative record, and the non[]moving party is not entitled to the usual inferences in its favor.” LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment & Dependent Life Ins. Plan, 605 F.3d 789, 795–96 (10th Cir. 2010) (quoting Bard v. Bos. Shipping Ass’n, 471 F.3d 229, 235 (1st Cir. 2006)). To be sure, LaAsmar describes summary judgment as a vehicle for deciding the case when “the parties in an ERISA case both move[] for summary judgment and stipulate[] that no trial is necessary,” whereas here, only Jensen moved for summary judgment. Id. at 796 (emphasis added). But Jensen has not disputed LINA’s position that it did not need to file its own summary-judgment motion. And we have noted in an unpublished but persuasive decision that one party’s summary-judgment motion is sufficient to “trigger[] the district court’s determination of final judgment in an ERISA case.” Mohammed v. Metro. Life Ins. Co., 535 F. App’x 722, 723 (10th Cir. 2013). 3 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 4

appropriate standard to be applied to [LINA’s] decision to deny benefits,” which is

the ultimate object of our review. Id. at 796 (quoting Weber v. GE Grp. Life

Assurance Co., 541 F.3d 1002, 1010 (10th Cir. 2008)); see also Ian C. v.

UnitedHealthcare Ins. Co., 87 F.4th 1207, 1219 (10th Cir. 2023) (“Our review goes

to the plan administrator’s decision, not the district court’s.”). We review a benefits

denial de novo “unless the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or to construe the terms of

the plan,” in which case review is for abuse of discretion. 5 LaAsmar, 605 F.3d at 796

(quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).

Here, the Plan includes a discretionary-authority provision, but Jensen argues

that it’s unenforceable because in 2018, Utah passed a law banning discretionary-

authority clauses in insurance contracts. See Utah Code Ann. § 31A-21-314(2)(d).

LINA responds that Utah law is irrelevant because under applicable federal choice-

of-law principles, the policy’s choice of Delaware law—which does not ban

discretionary-authority clauses—is binding. See Ellis v. Liberty Life Assurance Co. of

Bos., 958 F.3d 1271, 1284 (10th Cir. 2020) (outlining ERISA choice-of-law inquiry).

The parties also brief various issues related to retroactivity issues with applying a

2018 statute to a 2010 policy, ERISA preemption, and a different Utah law that bans

choice-of-law provisions in insurance contracts. But we need not address or decide

5 We sometimes describe the more deferential abuse-of-discretion standard as “arbitrary-and-capricious review”; the two descriptions are interchangeable in the ERISA context. See Ian C., 87 F.4th at 1219. 4 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 5

any of these matters because even if Jensen were to successfully evade application of

the discretionary-authority provision, her appeal fails under de novo review. 6

We thus proceed to the merits of Jensen’s appeal—whether LINA’s AD&D

policy provided benefits for Steven’s death—applying de novo review. When

interpreting an ERISA plan, we assess “the plan documents as a whole.” Carlile v.

Reliance Standard Life Ins. Co., 988 F.3d 1217, 1223 (10th Cir. 2021) (quoting

Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1250 (10th Cir. 2007)). In so

doing, we consider the “common and ordinary meaning as a reasonable person in the

position of the [plan] participant, not the actual participant, would have understood

the words to mean.” Miller, 502 F.3d at 1250 (alteration in original) (quoting Admin.

Comm. of Wal-Mart Assocs. Health & Welfare Plan v. Willard, 393 F.3d 1119, 1123

(10th Cir. 2004)). We “will apply unambiguous plan provisions as written.” Carlile,

988 F.3d at 1223. But if a “plan provision is reasonably susceptible to more than one

meaning, or [if] there is uncertainty as to the meaning of the term,” we will find

ambiguity. Id. (quoting Miller, 502 F.3d at 1250). And ambiguous terms “‘must be

construed against [the insurer] in accordance with the doctrine of contra

proferentem,’ which ‘construes all ambiguities against the drafter.’” Id. (quoting

Miller, 502 F.3d at 1253).

6 The district court took the same approach. And although Jensen faults the district court for doing so, we reject her argument on that front because courts routinely decline to decide the standard of review when they determine that the result will be the same under any standard. See, e.g., Ian C., 87 F.4th at 1218 (declining to decide standard of review because insurer would not prevail even under deferential abuse-of-discretion review). 5 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 6

In reviewing LINA’s decision to deny benefits, we are limited to considering

only the rationale given by LINA for that denial. See Spradley v. Owens-Ill. Hourly

Emps. Welfare Benefit Plan, 686 F.3d 1135, 1140 (10th Cir. 2012). 7 Although LINA

initially cited two exclusions, it ultimately denied benefits under only the medical-

treatment exclusion, which states that “benefits will not be paid for” a covered loss

that “is caused by or results from . . . [s]ickness, disease, bodily or mental infirmity,

bacterial or viral infection or medical or surgical treatment thereof, except for any

bacterial infection resulting from an accidental external cut or wound or accidental

ingestion of contaminated food.” App. 223 (emphasis added).

Jensen first argues, as she did below, that this exclusion unambiguously does

not apply because under the last-antecedent rule, the phrase “medical or surgical

treatment thereof” applies only to the last item in the list, “bacterial or viral

infection.” In support, she emphasizes that the “medical or surgical treatment” phrase

is not set off by a preceding comma. The last-antecedent rule is an interpretive

7 Jensen seeks to extend this principle, (1) faulting LINA for not explaining in its denial letters why it disagreed with her proffered reading of the policy and (2) asserting that we should now prohibit LINA from advancing any such explanation on appeal. To be sure, we require ERISA insurers “to provide a claimant with the specific reasons for a claim denial” and engage in “‘a full and meaningful dialogue regarding the denial of benefits.’” Spradley, 686 F.3d at 1140 (quoting Glista v. Unum Life Ins. Co., 378 F.3d 113, 129 (1st Cir. 2004)). But here, LINA did just that: it told Jensen that it was denying benefits under the medical-treatment exclusion, expressed disagreement with Jensen’s proffered interpretation of that exclusion, and continues to assert in litigation that the medical-treatment exclusion precludes benefits. See id.; Ian C., 87 F.4th at 1219. This is simply not a situation in which LINA has “sandbagged” Jensen with an “after-the-fact plan interpretation.” Spradley, 686 F.3d at 1140. 6 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 7

strategy that courts sometimes use for “a list of terms or phrases followed by a

limiting clause.” Lockhart v. United States, 577 U.S. 347, 351 (2016). This “rule

provides that ‘a limiting clause or phrase should ordinarily be read as modifying only

the noun or phrase that it immediately follows.’” Id. (cleaned up) (quoting Barnhart

v. Thomas, 540 U.S. 20, 26 (2003)). “The rule reflects the basic intuition that when a

modifier appears at the end of a list, it is easier to apply that modifier only to the item

directly before it.” Id.

As LINA does not dispute, a straightforward application of the last-antecedent

rule supports Jensen’s view that the medical-treatment exclusion does not apply here.

Under that view, the exclusion does not apply because Steven’s death was caused by

medical treatment of sickness, disease, or bodily or mental infirmity and not by

medical treatment of bacterial or viral infection.

But “as with any canon of statutory interpretation, the rule of the last

antecedent ‘is not an absolute and can assuredly be overcome by other indicia of

meaning.’” Id. at 352 (quoting Barnhart, 540 U.S. at 26). Those indicia of other

meaning typically come from “structural or contextual evidence.” Id. at 355. Or,

stated more simply, “sometimes context weighs against the application of the rule of

the last antecedent.” Id. at 355–56; see also Payless Shoesource, Inc. v. Travelers

Cos., 585 F.3d at 1366, 1370–71 (10th Cir. 2009) (explaining that last-antecedent

rule is a “presumption based on the grammatical rule against misplaced modifiers”;

because “grammatical rules are bent and broken all the time,” courts “will not

enforce the more grammatical interpretation of a contract ‘when evident sense and

7 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 8

meaning require a different construction’” (quoting Link, Inc. v. City of Hays, 972

P.2d 753, 758 (Kan. 1999))).

We agree with LINA that the context here cuts strongly against Jensen’s last-

antecedent interpretation. The purpose of AD&D insurance is to provide benefits

when death (or another covered loss) results solely from an accident; such insurance

does not typically provide benefits for accidents that occur in the course of medical

treatment. As one court has explained, AD&D insurance “carve[s] out physical

injuries not caused by illness from those that are so caused, and while injuries caused

not by the illness itself but by the treatment of the illness could be put in either bin,

the normal understanding is that they belong with illness, not with accident.” Senkier

v. Hartford Life & Accident Ins. Co., 948 F.2d 1050, 1052–54 (7th Cir. 1991). And

the policy at issue here follows this traditional view.

The cover page states that the policy “does not pay benefits for loss caused by

sickness.” App. 208 (capitalization and formatting standardized). Additionally, the

policy defines the term “covered accident” as “[a] sudden, unforeseeable, external

event that results, directly and independently of all other causes, in a [c]overed

[i]njury or [c]overed [l]oss and . . . is not contributed to by disease, [s]ickness, [or]

mental or bodily infirmity.” Id. at 218 (emphases added). The terms “covered injury”

and “covered loss” are likewise limited to “[a]ny bodily harm that results directly and

independently of all other causes” and a loss that is “the result, directly and

independently of all other causes, of a [c]overed [a]ccident,” respectively. Id.

(emphases added). These provisions strongly indicate that AD&D benefits under the

8 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 9

policy are only available for losses caused by an accident alone, with no sickness-

related contributing causes.

Thus, the context in which the medical-treatment exclusion appears weighs

strongly against Jensen’s last-antecedent reading. Indeed, the Third Circuit has held

as much in a case involving an identical exclusion in a LINA AD&D policy. See

Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 418–20 (3d Cir. 2011). There, like

Jensen here, the plaintiff argued that the comma usage in this exclusion “suggests

that the term ‘medical or surgical treatment thereof’ would not be extended to the

terms ‘sickness, disease, bodily or mental infirmity.’” Id. at 419. But the Third

Circuit rejected that view as inconsistent with “the indicia of meaning in the

[p]olicy,” explaining that “[w]here the meaning of the contract language is clear, the

last-antecedent rule should not be used to create ambiguity.” Id.

Moreover, it would make little sense, from a practical perspective, for the

policy to exclude benefits for loss caused by medical treatment of bacterial or viral

infection but to pay benefits for loss caused by medical treatment of sickness,

disease, or bodily or mental infirmity. Jensen offers no explanation for why bacterial

or viral infection should be handled differently than other kinds of sickness, disease,

or infirmity. See Lockhart, 577 U.S. at 355 (listing examples where Court declined to

apply last-antecedent rule because context suggested no reason for limiting

application of modifying phrase to only the last item in list); Payless, 585 F.3d at

1370–71 (rejecting application of last-antecedent rule where it would have excluded

coverage for litigation under host of federal laws but retained coverage for litigation

9 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 10

under similar or identical state laws). Because Jensen’s last-antecedent reading is

“overcome by other indicia of meaning,” we reject her argument that the medical-

treatment exclusion unambiguously does not apply here. Lockhart, 577 U.S. at 352

(quoting Barnhart, 540 U.S. at 26).

Alternatively, Jensen argues that the medical-treatment exclusion is ambiguous

and must be construed in her favor under contra proferentem. At the outset, for the

contextual reasons just explained, we do not agree that Jensen’s last-antecedent

reading is reasonable, such that the exclusion “is reasonably susceptible to more than

one meaning” and therefore ambiguous. Carlile, 988 F.3d at 1223 (quoting Miller,

502 F.3d at 1250); see also Viera, 642 F.3d at 419–20 (determining that last-

antecedent reading of this policy language “is not reasonable” and does not create

ambiguity). But Jensen further argues that the medical-treatment exclusion is

nevertheless ambiguous because “there is uncertainty as to [its] meaning” when it is

read in conjunction with the voluntary-ingestion exclusion. Carlile, 988 F.3d at 1223

(quoting Miller, 502 F.3d at 1250).

The voluntary-ingestion exclusion states that no benefits will be paid for any

loss that “directly or indirectly, in whole or in part, is caused by or results from . . .

voluntary ingestion of any narcotic, drug, poison, gas or fumes, unless prescribed or

taken under the direction of a [p]hysician and taken in accordance with the prescribed

dosage.” App. 223. According to Jensen, if the medical-treatment exclusion precludes

benefits for loss caused by taking medication to treat an illness, then the “unless”

portion of the voluntary-ingestion exclusion is rendered meaningless. Or, put

10 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 11

differently, Jensen contends that the “unless” clause in the voluntary-ingestion

exclusion “clearly contemplate[s] covering accidental deaths resulting from taking

medications as prescribed,” Rep. Br. 16, and that this clause is inconsistent with the

medical-treatment exclusion, which precludes benefits for an accidental death

resulting from taking medications as prescribed.

But as LINA explains, the two exclusions are not, in fact, contradictory. The

carve-out in the voluntary-ingestion exclusion for taking medications as prescribed is

general—it does not specify the purpose for which the medication is taken. That

means the “unless” clause within the voluntary-ingestion exclusion is functionally

broader than the medical-treatment exclusion, which excludes loss caused by taking

medications as prescribed only for the listed maladies: sickness, disease, or bodily or

mental infirmity. And in the sliver of daylight created by the voluntary-ingestion

exclusion’s slightly broader scope, its “unless” clause preserves benefits for loss

caused by taking medications as prescribed for accidental injuries. This preservation

of benefits makes sense in the context of this AD&D policy, which aims to provide

benefits for loss caused by accidents. So the “unless” clause of the voluntary-

ingestion exclusion does not conflict with the policy’s exclusion of benefits for loss

caused by taking medications prescribed for sickness, illness, or bodily or mental

infirmity.

Jensen attempts to resist this reading by suggesting that there is no daylight

between the provisions because taking medication as prescribed for an accidental

injury would constitute taking medication as prescribed for a bodily infirmity. But

11 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 12

the commonly understood definition of “infirmity” relates to states of weakness or

disease and does not encompass injuries. See Infirmity, Merriam-Webster,

https://www.merriam-webster.com/dictionary/infirmity [https://perma.cc/D3TK-

FJFL] (“the quality of being feeble” or “disease, malady”); Infirmity, Black’s Law

Dictionary (12th ed. 2024) (“[p]hysical weakness caused by age or disease”). So

taking medication prescribed for an accidental injury would not constitute medical

treatment of a bodily infirmity (or of sickness or disease), and the medical-treatment

exclusion would not apply to preclude benefits.

In sum, and at the risk of repetition, the “unless” clause of the voluntary-

ingestion exclusion allows for benefits under the policy when a participant is injured

in an accident, is prescribed medication to treat the injury, takes that medication as

prescribed, but then dies from doing so. This scenario does not fall within the

medical-treatment exclusion because taking medication as prescribed for an

accidental injury does not constitute medical treatment of a bodily infirmity (or of

sickness or disease). Viewed in this light, there is no conflict between the two

exclusions and no ambiguity to interpret in Jensen’s favor under contra proferentem. 8

And because Steven’s death resulted from medical treatment of sickness, the

8 Cases in lower courts have faced similar issues and arguments. Compare Grobe v. Vantage Credit Union, 679 F. Supp. 2d 1020, 1031–33 (E.D. Mo. 2010) (explaining consistency between exclusions for medical treatment and ingesting drugs), with Clark v. Metro. Life Ins. Co., 369 F. Supp. 2d 770, 778 (E.D. Va. 2005) (finding medical-treatment and drug-use exclusions in conflict). Because these cases are fact-intensive and rest on the specific policy language at issue—none of which directly tracks the policy language at issue here—we decline to rely on them and instead focus our analysis strictly on the policy language at issue here. 12 Appellate Case: 24-4014 Document: 59 Date Filed: 04/04/2025 Page: 13

unambiguous medical-treatment exclusion precludes benefits.

Conclusion

Even assuming de novo review applies, the policy’s medical-treatment

exclusion unambiguously precludes AD&D benefits for Steven’s death. So we affirm

the district court’s grant of summary judgment for LINA.

As a final matter, we deny LINA’s motion asking us to take judicial notice of

various information related to Codale’s corporate structure because those facts are

relevant only to the standard-of-review issue that we do not decide in this appeal.

Entered for the Court

Nancy L. Moritz Circuit Judge