Intoxication Exclusion in Group Life Insurance Policy With Accidental Death Benefit–Fort Worth Texas Contracts Lawyers

Likens v. Hartford Life and Acc. Ins. Co., — F.Supp.2d —- (2011)

United States District Court,
S.D. Texas,
Houston Division.
Cheryl LIKENS, Plaintiff,
Civil Action No. H–10–155. June 29, 2011.

GRAY H. MILLER, District Judge.
*1 This is a removal action wherein plaintiff seeks payment
of accidental death benefits under a policy of insurance.
Before the court are the parties’ cross-motions for summary
judgment. Dkts. 10, 11. After consideration of the motions,
responses, replies, exhibits, and the applicable law, plaintiff’s
motion (Dkt.10) is DENIED and defendant’s motion (Dkt.11)
Wesley Wood Vincent (“Vincent”) fell at his home on the
evening of February 23, 2008, and suffered injuries to his
cervical spine. Dkt. 1–1 at 10. He died as a result of that
injury on February 27, 2008. Id. The discharge summary from
the hospital listed his cause of death as “anoxic brain injury
secondary to cardiopulmonary arrest.” Id.
Vincent had a group life insurance policy with defendant
Hartford Life and Accident Insurance Company (“Hartford”),
obtained through Vincent’s employer, which provided a
benefit for “accidental” death. Dkt. 10–1 at 10. Plaintiff
Cheryl Likens is the listed beneficiary on the policy, and
she sought payment of the benefits. Id. Hartford denied the
claim due to Vincent’s intoxication at the time of his injury.
Dkt. 13–3 at 1–3. More specifically, Hartford relied upon
provisions of the Policy requiring that the injury must arise
from an accident “independently of all other causes,” and that
the policy excludes injuries “sustained as a result of being
legally intoxicated from the use of alcohol.” Dkt. 13–3 at
1–2. In Hartford’s view, Vincent’s death was “as a result of
being legally intoxicated from the use of alcohol,” Vincent
therefore “did not suffer bodily injury independent of all other
causes,” and no benefits were due. Id. at 2–3. Plaintiff sued in
state court to recover under the policy, and Hartford removed
the matter to this court on January 18, 2010, on the basis of
diversity of citizenship.
1. The insurance policy.
The insurance policy in this case is a Group Benefits policy
issued by Hartford (“Policy”). Dkt. 10 at 12–29. The Policy,
which the parties agree was issued in August, 2004, provides
for an accidental death and dismemberment benefit for an
injury leading to death in the maximum amount of $300,000.
Dkt. 12 at 5–9. 1 An “injury” is defined as “bodily injury
resulting directly from accident and independently of all other
causes which occurs while [Vincent] is covered under the
Policy. Loss resulting from: a) sickness or disease …; or
b) medical or surgical treatment of a sickness or disease;
is not considered as resulting from injury.” Id. at 5. The
“Exclusions” section of the Policy provides in relevant part
as follows:
1 Plaintiff asserts that application of other applicable
Policy provisions results in a death benefit of $263,500
for Vincent. Dkt. 10 at 30. Hartford asserts that the death
benefit available for a covered injury is $250,000. Dkt.
11 at 3. Resolution of this dispute is not necessary to the
court’s ruling on the pending motions.
The Policy does not cover any loss resulting from … 8.
Injury sustained as a result of being legally intoxicated
from the use of alcohol. (For residents of Minnesota,
Exclusion 8 is deleted and is replaced by the following:
8. Injury sustained while operating a motor vehicle while
legally intoxicated from the use of alcohol.)
*2 Id. at 6.
2. Circumstances of Vincent’s death.
Likens v. Hartford Life and Acc. Ins. Co., — F.Supp.2d —- (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 2
Vincent drank alcohol at a local bar on February 22, 2008,
and he arrived back home at approximately 11:30 p.m. Dkt.
12 at 14. An EMS report contains the following description
of events:
[F]amily state that [Vincent] went out drinking tonight and
that he was brought home by the bartender around 11 or
11:30. [Vincent’s] wife states that [he] was very intoxicated
and keep [sic] falling down, she states that she tried to help
him, but he told her that he was fine and that he was going
to sit out on the porch … her granddaughter came home and
found [Vincent] between the bbq pit and the hedge … she
moved him onto his back … [and] realized that he was not
Dkt. 12 at 19. A hospital report confirms that plaintiff reported
an initial fall by Vincent, and that she also reported that
Vincent was unable to make it from the yard into the house.
Dkt. 12 at 26. A sheriff’s report for that same incident states
that it was Vincent’s daughter, Kayla Hutson, who later found
him on the ground, but she reported she was “not alarmed
[be]cause this was a regular occurrence.” Dkt. 12 at 32.
Vincent was transported to the hospital, and his serum blood
alcohol content shortly after the incident was reported as
being .328 mg/dl. Id. at 16. He never regained consciousness,
and his life support was removed on February 27, 2008. Dkt.
12 at 37. The cause of death was reported as “anoxic brain
injury secondary to cardiopulmonary arrest.” Id.
A Certificate of Death dated March 17, 2008, lists the
“immediate cause” of his death as “complications following
blunt trauma with fracture of cervical spine,” and the “manner
of death” is listed as “accident.” Dkt. 10 at 32. Also listed
under “significant conditions contributing to death but not
resulting in the underlying cause” is “chronic ethanolism.” Id .
I. Summary Judgment
A timely motion for summary judgment shall be granted “if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” FED.R.CIV.P. 56(c); see also Carrizales v. State
Farm Lloyds, 518 F.3d 343, 345 (5th Cir.2008). Upon a
defendant’s motion for summary judgment, the plaintiff “must
set forth specific facts showing that there is a genuine issue
for trial. If he does not so respond, summary judgment, if
appropriate, shall be entered against him.” FED.R.CIV.P.
56(e). Ultimately, “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’ “ Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348 (1986). An issue is “material” if its resolution could
affect the outcome of the action. Burrell v. Dr. Pepper/Seven
Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir.2007).
“[A]nd a fact is genuinely in dispute only if a reasonable jury
could return a verdict for the non-moving party.” Fordoche,
Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir.2006).
*3 The moving party bears the initial burden of informing
the court of all evidence demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S.Ct. 2548 (1986). Only when the moving
party has discharged this initial burden does the burden shift
to the non-moving party to demonstrate that there is a genuine
issue of material fact. Id. at 322. If the moving party fails
to meet this burden, then it is not entitled to a summary
judgment, and no defense to the motion is required. Id.
“For any matter on which the non-movant would bear the
burden of proof at trial …, the movant may merely point to the
absence of evidence and thereby shift to the non-movant the
burden of demonstrating by competent summary judgment
proof that there is an issue of material fact warranting trial.”
Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718–19
(5th Cir.1995); see also Celotex, 477 U.S. at 323–25. To
prevent summary judgment, “the non-moving party must
come forward with ‘specific facts showing that there is a
genuine issue for trial.’ “ Matsushita Elec. Indus. Co., 475
U.S. at 587 (quoting FED.R.CIV.P. 56(e)).
When considering a motion for summary judgment, the court
must view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the nonmovant. Envtl. Conservation Org. v. City of Dallas,
Tex., 529 F.3d 519, 524 (5th Cir.2008). The court must review
all of the evidence in the record, but make no credibility
determinations or weigh any evidence; disregard all evidence
favorable to the moving party that the jury is not required
to believe; and give credence to the evidence favoring the
non-moving party as well as to the evidence supporting
the moving party that is uncontradicted and unimpeached.
Moore v. Willis Ind. Sch. Dist., 233 F.3d 871, 874 (5th
Cir.2000). However, the non-movant cannot avoid summary
judgment simply by presenting “conclusory allegations and
denials, speculation, improbable inferences, unsubstantiated
Likens v. Hartford Life and Acc. Ins. Co., — F.Supp.2d —- (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 3
assertions, and legalistic argumentation.” See TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002);
see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir.1994) (en banc). By the same token, the moving
party will not meet its burden of proof based on conclusory
“bald assertions of ultimate facts.” Gossett v. Du–Ra–Kel
Corp., 569 F.2d 869, 872 (5th Cir.1978); see also Galindo v.
Precision Amer. Corp., 754 F.2d 1212, 1221 (5th Cir.1985).
II. Contract Interpretation
“Texas courts interpret insurance policies according to the
rules of contract construction.” de Laurentis v. U.S. Auto.
Ass’n, 162 S.W.3d 714, 721 (Tex.App.-Houston [14th Dist.]
2005, pet. denied). The primary objective of the court is
to ascertain the parties’ intent, as expressed in the written
instrument. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d
132, 133 (Tex.1994). “[T]he parties’ intent is governed by
what they said, not by what they intended to say but did
not.” Nautilus Ins. Co. v. Country Oaks Apartments, Ltd., 566
F.3d 452, 455 (5th Cir.2009) (quoting Fiess v. State Farm
Lloyds, 202 S.W.3d 744, 746 (Tex.2006)) (internal quotation
*4 If an insurance policy is worded so that it can be
given a definite meaning or certain legal meaning, then
the policy is not ambiguous and is construed by the court
as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer,
124 S.W.3d 154, 157 (Tex.2003). An ambiguity exists
where a policy is susceptible to more than one meaning.
Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Courts
interpreting contractual provisions give terms their plain,
ordinary, and generally accepted meanings, unless otherwise
defined by the parties. “ ‘Both the insured and the insurer
are likely to take conflicting views of coverage, but neither
conflicting expectations nor disputation is sufficient to create
an ambiguity.’ “ Nat’l Union Fire Ins. Co. of Pittsburgh, PA
v. U.S. Liquids, Inc., 271 F.Supp.2d 926, 932 (S.D.Tex.2003)
(quoting Forbau, 876 S.W.2d at 134). “[I]f, and only if,
the court finds an ambiguity in the contract provisions,
particularly in exclusionary clauses, the court should construe
the policy strictly against the insurer.” Nat’l Union Fire Ins.
Co. of Pittsburgh, PA, 271 F.Supp.2d at 932; see also Waffle
House, Inc. v. Travelers Indem. Co. of Ill., 114 S.W.3d
601, 607 (Tex.App.-Ft. Worth 2003, pet. denied) (cautioning
that exclusionary provisions “must be clearly expressed and
must not be ambiguously worded”). And, “if the insured’s
construction of an exclusionary provision is reasonable, it
must be adopted, even if the insurer’s construction is more
reasonable.” Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 271
F.Supp.2d at 931.
Under Texas law, an insured has the burden of establishing
coverage under the terms of an insurance policy. Gilbert Tex.
Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d
118, 124 (Tex.2010). If the insured proves coverage, then to
avoid liability the insurer must prove that the loss is within an
exclusion. Id. If the insurer proves that an exclusion applies,
the burden shifts back to the insured to show that an exception
to the exclusion brings the claim back within coverage. Id.
III. Application
In this case, no reasonable jury could find facts that would
avoid the intoxication exclusion of the Policy. 2 The facts of
this case clearly establish that Vincent’s intoxication on the
night he fell in his front yard is the proximate cause of his
death, and this prevents plaintiff from recovering under the
2 The court will not, therefore, address Hartford’s
argument that plaintiff failed to establish that Vincent’s
death was caused by an accident independent of other
“The Policy does not cover any loss resulting from … [i]njury
sustained as a result of being legally intoxicated from the use
of alcohol.” Dkt. 12 at 6. Hartford’s evidence conclusively
establishes that the injuries Vincent sustained on February
23, 2008, and which led to his death, were caused by his
extreme intoxication. Plaintiff asserts that the autopsy report
on Vincent’s body discounts alcohol consumption as a cause
of his death. Plaintiff’s argument is premised upon a form
where “chronic ethanolism” is listed in box pre-labeled for
“significant conditions contributing to death but not resulting
in the underlying cause.” Dkt. 10 at 32. A review of the
more complete report of the findings, however, reveals that
the medical examiner made no finding that intoxication did
not cause the injuries. Dkt. 13–1 at 2–9. In fact, the medical
examiner’s notes reflect that the “blunt force trauma” occurred
because “[d]ecedent fell at home while intoxicated and hit his
head on a barbecue pit.” Id. at 9. Thus, the medical examiner
did not make any finding that would permit a jury to conclude
that intoxication did not cause Vincent’s injuries. Indeed, such
a finding is compelled by the record evidence.
*5 The sole question remaining, then, is one of interpretation
of the exclusion at issue. More specifically, what is meant by
the term “legally intoxicated” as used in the Policy? Plaintiff
asserts that this language is ambiguous and, accordingly,
Likens v. Hartford Life and Acc. Ins. Co., — F.Supp.2d —- (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 4
presents her own proposed definition. There is no challenge to
whether Vincent met the legal definition in terms of the level
of his intoxication. Indeed, the record reflects that Vincent
was approaching the level of blood alcohol content that is
considered medically “toxic.” Dkt. 12 at 16. Rather, plaintiff
points to Hartford’s reliance in its briefing on the definition
of legal intoxication from the Texas Penal Code, and asserts
that “legal intoxication” therefore necessarily requires that
Vincent be not only intoxicated, but intoxicated in a legally
relevant fashion. Dkt. 10 at 9. More specifically, the exclusion
would only apply in plaintiff’s view if Vincent were driving,
or otherwise “operating a motor vehicle, motorboat or vessel”
in violation of Texas law. Id.
Hartford responds that there is no indication in the Policy that
intoxication must involve a violation of Texas law, or that
operation of a motor vehicle is required for such a finding.
Indeed, Hartford is correct. In fact, the exclusion at issue is
immediately followed in the Policy by an alternate version
of the exclusion applicable only in Minnesota and which
specifically limits the exclusion to injuries sustained while
“operating a motor vehicle while legally intoxicated from the
use of alcohol.” Dkt. 12 at 6. Thus, there is no support for
plaintiff’s argument in the language of the Policy itself.
For purposes of Texas law, “intoxicated” is defined as:
(A) not having the normal use of mental or physical
faculties by reason of the introduction of alcohol,
a controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances, or any
other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
V.T.C.A., Penal Code § 49.01 (emphasis added). While
Hartford relies upon this definition, drawn from the Texas
Penal Code, for purposes of establishing a definition
of “legal intoxication” in the Policy exclusion, Hartford
points out that Texas law also provides for similar
definitions of “intoxicated” for determining issues in workers’
compensation cases, Tex. Labor Code § 401.103, and for
determining when a customer may no longer be served
alcoholic beverages. Tex. Admin. Code § 50.2. This broad
application of the definition of “intoxicated” in Texas law
distinguishes cases such as MacDonald v. Unicare Life
& Health Ins. Co., No. 3:07–0345, 2008 WL 169142
(S.D.W.Va. Jan. 18, 2008) and cases cited therein where the
state law referenced in, or applicable to, a policy exclusion
required an adjudication or a finding that the intoxication
was actually in violation state law. Here, Texas defines
“intoxicated” in more than just a criminal context, and the
court finds no basis to read into the Policy such an additional
*6 Not every difference in interpretation of an insurance
policy amounts to an ambiguity. Kelley–Coppedge, Inc. v.
Highlands Ins. Co., 980 S.W.2d 462, 465 (Tex.1998). Here,
the court does not perceive an ambiguity in the Policy as
written. The exclusion applies if Vincent’s death was caused
by his being “legally intoxicated,” i.e., being “intoxicated”
as that term is defined in Texas law. Texas law provides a
uniform definition of “intoxicated” that Vincent easily met at
the time he fell and struck his head.
And, in any event, even if some ambiguity existed in
the exclusionary language, an insured’s construction of the
exclusion will only be adopted if it is reasonable. Nat’l Union
Fire Ins. Co. of Pittsburgh, PA, 271 F.Supp.2d at 931. In
this case, there is simply no basis for reading into the Policy
exclusion an additional requirement that Vincent not only be
impaired as described in Texas law, but that he also have been
committing a crime.
Finally, plaintiff argues in the alternative that it is improper to
utilize a definition of intoxication drawn specifically from the
Texas Penal Code unless there was an express adoption of that
standard in the Policy. This is a potential ambiguity, however,
that does not benefit plaintiff. A contractual clause that is
ambiguous as applied to certain facts may be unambiguous as
applied to others. State Farm Fire and Cas. Co. v. Vaughan,
968 S.W.2d 931, 934 (Tex.1998). Vincent met any definition
of “intoxicated” during the relevant time frame. Choosing one
that differs slightly from the one found in the Texas Penal
Code would not avail plaintiff in this case.
After consideration of the motions, responses, replies,
exhibits, and the applicable law, plaintiff’s motion for
summary judgment (Dkt .10) is DENIED, and defendant’s
motion for summary judgment (Dkt.11) is GRANTED.



Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas insurance defense and contract law attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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