Tourdot v. Rockford Health Plans, Inc.

• Decision Date: 15 February 2005
• Docket Number: No. 04-C-0404-C.,04-C-0404-C.
• Citation: 357 F.Supp.2d 1100
• Parties: Bryan TOURDOT, Plaintiff, v. ROCKFORD HEALTH PLANS, INC., Defendant.
• Court: U.S. District Court — Western District of Wisconsin

357 F.Supp.2d 1100

Bryan TOURDOT, Plaintiff, v. ROCKFORD HEALTH PLANS, INC., Defendant.

No. 04-C-0404-C.

United States District Court, W.D. Wisconsin.

February 15, 2005.

Steven T. Caya, for Plaintiff.

Stephen E. Balogh, Williams & McCarthy, Rockford, IL, for Defendant.

OPINION AND ORDER

CRABB, District Judge.

This is a civil action brought pursuant to 29 U.S.C. § 1132(e) of the Employee Retirement Income Security Act and 28 U.S.C. § 1331. Plaintiff Bryan Tourdot is suing for benefits he believes are due him under the terms of his employer's group health plan. Defendant denies that it owes plaintiff any benefits, arguing that plaintiff was injured as a result of an illegal act (driving while intoxicated) and the plan provides no coverage for services provided as a result of an illegal act. The case is before the court on cross-motions for summary judgment filed by the parties.

Plaintiff began this action in a Wisconsin state court; defendant removed the case to this court. It is not entirely clear whether plaintiff is suing the correct defendant or whether venue is proper in this district. Section 1132(e)(2) of ERISA provides that actions may be brought "in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found." The parties have not explained whether defendant is the administrator of the employer's group health plan; presumably it is and therefore is a proper defendant under § 1132(e). Assuming that it is, however, defendant should have removed this case to the Northern District of Illinois, the district in which the plan is administered (because it is the district in which defendant has its place of business) and also the district in which the alleged breach (refusal to pay benefits under the plan) would have occurred. Despite these questions, I see no reason not to exercise jurisdiction over the dispute. Subject matter jurisdiction is present under § 1132(e)(1); defendant has not denied that it is subject to suit and potentially liable for any remedy plaintiff may be due; and improper venue may be waived, as it has been in this case by plaintiff's failure to raise the subject.

For the purpose of deciding this case, I find that the following facts are undisputed and material.

UNDISPUTED FACTS

Plaintiff Bryan Tourdot is an insured of defendant Rockford Health Plans, Inc. At all relevant times, defendant was an insurance company licensed to issue group health policies to employers, with its principal place of business in Rockford, Illinois. It issued a group health policy to plaintiff's employer.

On July 16, 2003, while plaintiff was covered by his employer's group health policy, he was involved in an accident involving his motorcycle and an automobile. The accident occurred in Janesville, Wisconsin, when plaintiff was momentarily distracted by the activities of dancers at Screamin' Meemies, failed to stop with traffic and ran his motorcycle into the automobile stopped in front of him. He sustained personal injuries requiring medical treatment. During the two-hour period immediately preceding the accident, plaintiff had consumed more than two alcoholic beverages and in the four hours preceding the accident, may have consumed as many as four to five beers.

Plaintiff was issued a traffic citation for inattentive driving, which he resolved later with a plea of no contest. He was given a breathalyzer test, which resulted in a blood alcohol level of .10gm/dL. However, when his blood alcohol level was tested in the emergency room after the accident it was found to be .14 gm/dL.

On July 18, 2003, defendant wrote plaintiff, denying coverage for the cost of the medical services plaintiff's injuries required. Defendant cited Article XI, # 40 that excluded coverage for "treatment, services and supplies in connection with any illness or injury caused by a Member's operation of a motorized vehicle when legally prohibited and/or intentional use of illegal drugs." At some point, defendant realized that the plan in effect at the time of the accident did not contain this exclusion and advised plaintiff that it was relying instead on an exclusion in the policy covering plaintiff that applies to "services which result from war or act of war, whether declared or undeclared, or from participation in an insurrection or riot, or in the commission of an assault, felony, terrorist action, or any illegal act."

As of July 16, 2003, Wis. Stat. § 340.01(46m)(a) set the prohibited blood alcohol concentration at .10 or greater for drivers with 2 or fewer prior convictions, suspensions, or revocations. (The legislature reduced the level to .08, effective September 30, 2003.)

OPINION

Neither party has identified any provision of the plan documents that grants defendant discretion to determine how various provisions of the plan should be interpreted. Without any indication that the plan's administrator has insulated its decisions from close judicial scrutiny, I must exercise de novo review over its decision to deny plaintiff's claim for benefits. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (whether exercise of power to construe disputed or doubtful terms is permissive or mandatory depends on trust terms).

Defendant's denial of plaintiff's claim rested on its determination that plaintiff's operation of his motorcycle while legally drunk was an illegal act. Defendant contends that its term is straightforward and that it covers the act of driving with a blood alcohol level in excess of .10 because the Wisconsin legislature has declared such driving illegal in Wis. Stat. § 346.63, which provides that "(1) No person may drive or operate a motor vehicle while: ... (b) The person has a prohibited alcohol concentration."

Plaintiff argues that the term "illegal act" is ambiguous for a number of reasons. First, the principles of ejusem generis apply, so that the general term, "illegal act," must be understood in reference to the specific terms enumerated in the exclusion provision. Under this canon of construction, a reasonable reader would not read "illegal act" as including a minor traffic violation such as the inattentive driving for which he was ticketed, when the preceding acts are such serious matters as insurrection, commission of a felony or a terrorist act. Moreover, such a reading would apply to other acts punishable by no more than a civil forfeiture, such as driving over the speed limit or not wearing a seat belt. Second, the exclusion is ambiguous because it does not say whether an illegal act requires a conviction and third, it is ambiguous because it does not prescribe whether a causal connection is required between the illegal act and the accident. Finally, plaintiff argues that defendant must have realized that the exclusion on which it is relying is ambiguous because it amended the plan to incorporate a specific exclusion for coverage of injuries caused by the operation of a motorized vehicle when legally prohibited.

None of plaintiff's challenges to defendant's plan is persuasive. The Court of Appeals for the Seventh Circuit decided in 1990 that a similar provision in a health plan barred an injured plaintiff or his assignee from recovering medical expenses incurred for services for injuries while engaging in any illegal or criminal enterprise or activity. In Sisters of the Third Order of St. Francis v. SwedishAmerican Group Health Benefit Trust, 901 F.2d 1369 (7th Cir.1990), the court rejected a number of similar challenges by the plaintiff. It found that that driving with more than the legal limit of blood alcohol was an illegal activity within the meaning of the policy at issue, noting that the state of Illinois made drunk driving a misdemeanor punishable by a year's imprisonment and that it was reasonable for the defendant benefit plan to interpret the words of the exclusion, "while engaged in," as "resulting from." It seemed to hold open the possibility that in some cases a jury trial would be necessary to determine whether the injuries for which benefits were claimed were the result of the impaired driving but it concluded that no such trial was necessary in the case before it because the only argument was that loose gravel on the side of the road might have caused...