Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING TRIAL ON THE MERITS ON WRITTEN SUBMISSIONS BENNETT, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION. 00 05 o A. Findings Of Fact. 00 05 o 1. The crash. 00 05 o 2. Post-mortem analysis. 00 05 o 3. The beneñt plan. 00 05 » — I 4. Denial of West’s claim.. 00 05 ) — I B. Procedural Background. 00 05 ^ II. LEGAL ANALYSIS. 00 Ü1 A. Review Of Benefits Determinations Under ERISA . OO ai 1. Deferential review. 00 05 a. Review of plan interpretation. 00 05 b. Review of factual determinations . 00 Oi c. The deferential review applicable here. 00 i. “Interpretation” or “evaluation of the facts” in the parties’arguments . ii. Blurring in the case law. 2. “Less deferential” review. a. When “less deferential” review is appropriate. b. Plaintiff’s grounds for “less deferential” review. i.Conflict of interest. ii. Procedural irregularitg. c. The appropriate degree of deference . B. Application Of The Five-Factor Test. 1. Aetna’s definition of “accident”. 2. Consideration of the definition in light of the Finleg factors. a. Conflict with ERISA. i. Arguments of the parties. ii. Rules of interpretation for ERISA plans. Hi. “Ordinarg” meaning of “accident.”. iv.Federal decisions defining “accident” for purposes of ERISA plans . v. Consistency of Aetna’s definition with Wickman.,.. vi. Consistency with New York common law .. b. Consistency with yoals of the Plan. c. Internal inconsistencies. i. Inconsistency with the choice-of-law provision. ii. Inconsistency with express limitations. d. Inconsistent interpretation by the administrator. e. Inconsistency with clear language of the Plan . 3. Summary. C. Application Of The “Substantial Evidence” Test. 1. Wickman’s evaluation of the facts. 2. Intoxicated driver cases applying Wickman. 3. Misapplications of Wickman. 4. Aetna’s evaluation of the facts. D. Prejudgment Interes't And Attorney’s Fees . III. CONCLUSION 905 Was an intoxicated driver’s death when the car he was driving missed a curve on a highway as he returned home from an office Christmas party an “accident” within the meaning of an accidental death insurance policy governed by ERISA? The insurer denied coverage under the policy, concluding that the driver’s death was not an “accident” within the meaning of the policy, as interpreted by the insurer as plan fiduciary, because his death was not “unexpected, unusual, and unforeseen.” The driver’s widow contends that the insurer’s conflict of interest and procedural irregularities in denial of her claim were so egregious that the insurer’s determination to deny benefits is entitled to no deference whatsoever, even if the insurer had the discretion under the ERISA plan to define “accident.” In the alternative, however, she contends that the insurer’s determination to deny benefits on the basis of its definition of “accident,” because her husband was intoxicated at the time of his fatal crash, fails even the most deferential “arbitrary and capricious” review. I. INTRODUCTION A. Findings Of Fact The factual background to this case is essentially undisputed. Nevertheless, to place the legal analysis to follow in proper context, the court must detail its findings regarding the circumstances of the plaintiffs decedent’s death and the defendant’s denial of the plaintiffs claim for accidental death benefits. 1. The crash Plaintiffs decedent, Delane 0. West, was 59 years old when he was killed at approximately 11:00 p.m. on the night of December 13, 1997. West, a night manager for United Parcel Service (UPS), had attended a UPS Christmas party that night. He was apparently returning to his home in Denison, Iowa, when his car missed a curve on U.S. Highway 59, three miles south of Denison, struck a tree, and flipped over on the driver’s side. West was not wearing a seatbelt. Dr. D.W. Crabb, M.D., the Crawford County Medical Examiner, declared West dead at the scene. See, e.g., Exhibit 2, Investigating Officer[’]s Report, Joint Appendix at 38-39. Road conditions were clear and dry and neither party contends that they contributed to the cause of the crash. The parties do not dispute that West was intoxicated at the time of the crash. 2. Post-mortem analysis At the request of Dr. Crabb, Dr. Michael T. Kafka, a State Medical Examiner, performed an autopsy on Mr. West on December 14, 1997. Exhibit 4, Report of Autopsy, Joint Appendix at 41-46. Toxicology tests showed that Wests blood alcohol content (“BAC”) was 203 mg/dL, or .203, more than twice the legal limit of .10 under Iowa law. See id., Final Patient Report (Pathology), at 1, Joint Appendix at 46; see also Iowa Code § 321 J.2(l)(b) (“A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state ... [w]hile having an alcohol concentration as defined in section 321J.1 of .10 or more.”); Iowa Code § 321J.l(l)(a) (“As used in this chapter unless the context otherwise requires ... ‘[ajlcohol concentration’ means the number of grams of alcohol per ... [o]ne hundred milliliters of blood.”). Dr. Kafka identified the “PROBABLE CAUSE OF DEATH” as “Multiple traumatic injuries sustained during motor vehicle accident,” and “OTHER SIGNIFICANT CONDITIONS” as “Ethanol intoxication.” Id. at 1, Joint Appendix at 41. Similarly, Dr. Kafka’s “SUMMARY” of the results of the autopsy consisted of the following: The death of this 59-year-old male is due to multiple severe traumatic injuries resulting from a single motor vehicle accident. Ethanol intoxication was a significant contributing factor. Id. On December 17, 1997, Dr. Crabb certified a Certificate of Death for West, indicating that the “immediate cause” of West’s death was “(a) Massive Head Trauma due to (or as a consequence of) (b) Motor Vehicle Crash due to (or as a consequence of) (c) Acute Alcoholic Intoxication.” Exhibit 3, Certificate of Death, Joint Appendix at 40 (underlining showing entries by certifier). The Certificate of Death indicates further that the “approximate interval between onset and death” for the head trauma and motor vehicle crash was “immediate” and for the alcoholic intoxication was “2-4 hrs.” Id. The Certificate of Death states further that the “Toxicology from Autopsy [indicated] Alcohol 274 vitreous, 203 blood, 199 urine.” Id. Dr. Crabb certified the “Manner of Death” on the death certificate as “Accident.” Id. 3. The benefit plan West’s widow, plaintiff Theresa West, made a claim for death benefits under a group benefit plan provided by defendant Aetna Life Insurance Company through West’s employer, UPS. See Exhibit 1, UPS Plan, Joint Appendix. The UPS Plan provides life insurance, accidental death and dismemberment coverage, and disability coverage. In pertinent part, the Accidental Death and Dismemberment Coverage portion of the UPS Plan states, “This Plan pays a benefit if, while insured, you suffer a bodily injury in an accident and if, within 90 days after the accident, you lose, as a direct result of the injury ... [y]our life.” Id. at 5, Joint Appendix at 10. The beneficiary’s “full Principal Sum is payable for loss of life.” Id. However, this portion of the UPS Plan contains the following “Limitations”: Benefits are paid for losses caused by accidents only. No benefits are payable for a loss caused or contributed to by: • Bodily or mental infirmity. • Disease, ptomaines or bacterial infections.* • Medical or surgical treatment.* • Suicide or attempted suicide. • Intentionally self-inflicted injury. • War or any act of war (declared or undeclared). • These do not apply if the loss is caused by: • An infection which results directly from the injury. • Surgery needed because of the injury. Id. The accidental death benefits portion of the UPS Plan thus does not contain an express limitation excluding benefits for a loss caused or contributed to by intoxication. 4. Denial of West’s claim Aetna paid Mrs. West’s claim for basic life insurance benefits under the UPS Plan, but, by letter dated June 15, 1998, denied payment of her claim for benefits under the Group Accidental Death and Dismemberment Coverage portion of the UPS Plan. See Exhibit 5, June 15, 1998, Letter from Gail H. Drake, Investigator, Aetna Life Insurance Company (June 15, 1998, Denial Letter), Joint Appendix at 47-49. In pertinent part, the June 15, 1998, Denial Letter states the following: We are in receipt of the additional information needed to review your claim for the accidental death benefits. Thank you for your patience during this difficult time. We have completed our review of the information submitted on the claim for the Accidental Life Insurance benefit. We regret to inform you we must deny payment of the accidental death benefit in the amount of $14,000 Basic and $53,000 Flex. Information on the death certificate indicated Mr West [sic passim] died on December 13, 1997 as the result of “massive head trauma due to motor vehicle creash [sic] due to acute alcoholic intoxication”. The injuries were sustained when Mr West drove his car off the road on Highway 59 and struck a tree and flipped over about 11:00 P.M. on the 23rd [sic]. This information in [sic] from the Iowa Department of Transportation Investigation [sic] Officers [sic] Report. This report also indicates no protective devices were is [sic] use. Through a telephone call to the Crawford County Sheriff we were able to verify that the road condition wa's dry and the weather was clear. We also secured a copy of the autopsy report. According to the Iowa State Medical Examiner, the autopsy was performed on December 14, 1997. This report indicates Mr. West had a blood alcohol level of 203 mg/dL. The autopsy summary states “The death of this 59-year old male is due to multiple severe traumatic injuries resulting from a single motor vehicle accident. Ethanol intoxication was a significant contributing factor.” Mr. West intentionally consumed alcohol which resulted in his blood ethonal [sic] level to exceed [sic] the Iowa State legal limit of lOmg/dL [sic]. According to “Forensic Pathology” written by Dominick and Vincent DiMaio (1989), the signs and symptoms of an ' individual with Acute Alcohol Intoxication with a blood alcohol level of 20-30mg/dL [sic] are as follows: “Staggering, grossly impaired in motor activities, reaction times, attention, visual acuity and judgment; drunk. Progressive increase in disorientation, emotional lability. Loss of cordination [sic], slurred speech. May be lethargic and sleepy or hostile and aggressive”. Mr. West’s intentional act exposed himself to unnecessary risks which were reasonably foreseeable and such that he should have knoum or appreciated the consequences of his intentional acts, including the liklihood [sic] or strong possibility of death. The serious risks associated with driving while intoxicated are widely publicized. Our review of this Accidental Death claim has determined that Mr. West’s death, in this instance, was not the result of an accident as required by the plan of insurance. An accident is an event which happens by chance, or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen. In theis [sic] situation, the insured should have foreseen the consequences of drinking and operating a motor vehicle while intoxicated. Although we do not know his true level of impairment prior to the incident, based on the above published documentation, there eould [sic] have been some degree of impairment with a blood alcohol level ofZOSmg/dL. Accidental Death Insurance benefits are payable if an insured dies from an accident and the death is within 90 days of the accident. This benefit is not payable for a death caused by: bodily or mental infirmity, disease, ptomaines or bacterial infections, medical or surgical treatment, suicide or intentionally self-inflicted injury, war or any act of war and your committing an unlawful act of agression [sic], including a misdemeaner [sic] or felony. Therefore, we must deny the claim for the Accidental Death benefit and no additional benefits will be payable as this loss does not meet the definitio [sic] of an accident. We regret our decision could not have been more favorable. June 15, 1998, Denial Letter at 1-2, Joint Appendix at 47-48 (emphasis added). The remainder of the June 15, 1998, Denial Letter informs Mrs. West of her rights to further review of the investigator’s benefits determination and a reservation of Aetna’s rights and defenses. Id. at 2-3, Joint Appendix at 48-49. On October 5, 1998, Aetna’s investigator wrote another letter, this time to Mrs. West’s attorney. See Exhibit 6, October 5, 1998, Letter from Gail H. Drake, Investigator, Aetna Life Insurance Company (October 5, 1998, Reaffirmation of Denial Letter), Joint Appendix at 50-51. This letter was apparently in response to a letter from Mrs. West’s attorney dated September 18, 1998, which is not in the record, but which apparently indicated that Mrs. West did not agree with Aetna’s decision to deny the accidental death benefit in response to her request for payment of her claim. See id. at 1, Joint Appendix at 50 (first paragraph). In the letter of October 5, 1998, Aetna reaffirmed its denial of Mrs. West’s claim for accidental death benefits under the UPS Plan, as follows: In my letter of June 15, I advised the cause of death on the death certificate was indicated as “massive head trauma due to motor vehicle crash due to acute alcoholic intoxication”. The manner of death was indicated as “accident”. Based on this information we secured a copy of the Iowa State Medical Examiner’s report for details of the injuries and toxocology [sic] results. We also secured a copy of the Iowa Department of Transportation Investigation [sic] Officers [sic] Report and also spoke with the Sheriffs office for information on driving and road conditions. Based on the Iowa State Medical Examiner’s toxicology results, Mr West’s [sic passim] blood alcohol level was stated as 203 mg/dL. The report also stated that “ethanol intoxication was a significant contributing factor.” Based on the Sheriffs office investigation, it did not appear that the road, vehicle or weather conditions were a contributing factor to cause a motor vehicle accident. My letter also stated we did not know Mr West’s true level of impaiment [sic] due to his intoxication. However, according to our source, “Forensic Pathology”, the signs and symptoms of a person with Acute Alcohol Intoxication with a blood alcohol level of 20-30 mg/dL [sic] are staggering, gross impaired motor activities and reaction time, loss of coordination and slurred speech. The Accidental Death Insurance benefit is payable if an insured dies from an accident. Enclosed is a copy of the Accidental Death provision from United Parcel. I stated in my previous letter that the loss does not meet the definition of an accident. No where [sic] in my letter did I state Mr West commited [sic] suicide nor did I imply he commited [sic] suicide. Our denial of the claim for the accidental death benefit was not based on any of the limitations indicated in this provision. However, the limitations were listed in the letter for your reference. An accident is an event which happens by chance, or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen. In this situation, Mr. West intentionally consumed alcohol. He should have rea sonably foreseen the consequences of drinking and operating a motor vehicle while intoxicated. The serious risks associated with driving while intoxicated are widely publicized. We maintain the denial of the Accidental Death benefit as the incident does not qualify as an accident. Therefore, no Accidental Death benefits are payable. We would like to reference here case law which addresses the issue of denial of benefits on the grounds that decedent’s death in a traffic accident while operating a vehicle under the influence was not an accident. Please refer to: Miller v Auto-Alliance International, Inc. (1997, United States District Court E.D. Michigan), Fowler v Metropolitan Life Insurance (1996, United States District Court W.D. Tennessee) and Cozzie v Metropolitan Life Insurance (1997, United States District Court N.D. Illinois). We regret our decision could not have been more favorable. As always, we are willing to review any additional information submitted. October 5, 1998, Reaffirmation of Denial Letter at 1-2, Joint Appendix at 50-51. B. Procedural Background On December 2, 1998, plaintiff Theresa West filed this lawsuit against defendant Aetna Life Insurance Company in the Iowa District Court for Crawford County alleging wrongful denial of insurance benefits under the accidental death portion of the UPS Plan following her husband’s death in the automobile crash on December 13, 1997. Aetna answered the original petition on February 1, 1999. On December 3, 1999, Mrs. West filed a motion for leave to amend her petition to assert, as Count II, a claim of failure to pay benefits in violation of the Employee Retirement Income Security Act of 1974 (ERISA), as amended, 29 U.S.C. § 1001 et seq. On the basis of this federal claim, Aetna removed this action to this federal court on December 22, 1999, and answered the amended petition in this court on December 23, 1999. On December 27, 1999, a magistrate judge of this court granted Theresa West’s motion for leave to amend her complaint, directing her to file an amended and substituted complaint by January 17, 2000. Mrs. West complied by serving an Amended and Substituted Complaint on January 14, 2000, which was filed on January 18, 2000. In her Amended and Substituted Complaint, Mrs. West asserts a single claim of breach of fiduciary duty in violation of ERISA in denial of death benefits under the accidental death portion of the UPS Plan. Specifically, Mrs. West alleges the following: 10. Defendant breached its fiduciary duty in denying death benefits to the Plaintiff in the following particulars: (A) In failing to conduct an adequate, thorough investigation prior to determining that the cause of death was not accidental; (B) In determining the cause of death was not accidental without a factual basis to support the conclusion; (C) In claiming that intoxication is a justification to refuse to pay accidental death benefits without a basis to support that denial for that sole reason under the terms of the plan document; (D) In favoring its own interests to deny payment over plan interests to provide compensation for accidental death. Amended and Substituted Complaint, ¶ 10. Mrs. West seeks an order compelling Aet-na to pay all death benefits due under the UPS Plan, pre-judgment interest from the date the death benefits should have been paid until the date of judgment, attorney’s fees and costs, and such other relief as the court deems just and proper. Id. at Prayer. Aetna answered the Amended and Substituted Complaint on January 27, 2000. On May 23, 2001, the parties jointly requested adjudication of this matter on written submissions. Pursuant to a scheduling order, as amended, the parties filed a Joint Appendix on July 20, 2001; Mrs. West filed her trial brief on July 30, 2001; Aetna filed a responsive trial brief on August 27, 2001; and Mrs. West filed her reply brief on September 7, 2001. The court heard oral arguments on the merits of the case on September 14, 2001. At the oral arguments, plaintiff Theresa West was represented by Michael R. Mundt of Mundt, Franck & Schumacher in Denison, Iowa. Defendant Aetna Life Insurance Company was represented by Sarah J. Kuehl of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl in Sioux City, Iowa. The oral arguments were highly informative and spirited. This matter is now fully submitted for determination on the merits. II. LEGAL ANALYSIS (Including Further Necessary Findings Of Fact) A. Review Of Benefits Determinations Under ERISA The Eighth Circuit Court of Appeals recently summarized the standard ordinarily applicable to a court’s review of a fiduciary’s benefits determination under ERISA as follows: “ERISA provides a plan beneficiary with the right to judicial review of a benefits determination.” Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir.1998); see 29 U.S.C. § 1132(a). It is undisputed that the Toro Plan gives the administrator discretionary authority to determine eligibility for benefits, so we would ordinarily review the administrator’s decision for abuse of discretion. See Woo, 144 F.3d at 1160. “This deferential standard reflects our general hesitancy to interfere with the administration of a benefits plan.” Layes v. Mead Corp., 132 F.3d 1246, 1250 (8th Cir.1998). Under such standard, a reviewing court should consider only the evidence before the plan administrator when the claim was denied. Id. at 1251. Heaser v. Toro Co., 247 F.3d 826, 833 (8th Cir.2001). The parties here agree that, as in Heaser, the UPS Plan gives Aetna discretionary authority to determine eligibility for benefits, so that the court would ordinarily review Aetna’s decision to deny accidental death benefits in this case for abuse of discretion. Id. Indeed, the UPS Plan unequivocally states both Aetna’s discretionary authority and the “abuse of discretion” standard of review: For the purpose of section 503 of Title 1 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), Aetna is a fiduciary with complete authority to review all denied claims for benefits under this policy. This includes, but is not limited to, the denial of certification of the medical necessity of hospital or medical treatment. In exercising such fiduciary responsibility, Aet-na shall have discretionary authority to: determine whether and to what extent employees and beneficiaries are entitled to benefits; and construe any disputed or doubtful terms of this policy. Aetna shall be deemed to have properly exercised such authority unless Aetna abuses its discretion by acting arbitrarily and capriciously. UPS Plan at 9190, Joint Appendix at 37. The court therefore begins its legal analysis with consideration of the deferential “abuse of discretion” standard of review “ordinarily” applicable to a plan administrator’s discretionary denial of benefits. See Heaser, 247 F.3d at 833. 1. Deferential review Under the deferential “abuse of discretion” standard of review, “an administrator’s decision to deny benefits will stand if reasonable.” Farley v. Arkansas Blue Cross & Blue Shield, 147 F.3d 774, 777 (8th Cir.1998). However, as the Eighth Circuit Court of Appeals has also explained, the nature of the review for “reasonableness” depends upon the basis on which the plan administrator denied the claim for benefits. See Donaho v. FMC Corp., 74 F.3d 894, 898-900 (8th Cir.1996); see also Farley, 147 F.3d at 777 & n. 6 (citing Donaho). a. Review of plan interpretation ‘"When determining whether an administrator’s interpretation of a plan is reasonable, [courts in this circuit] apply a five-factor test.” Farley, 147 F.3d at 777 n. 6 (citing Finley v. Special Agents Mut. Benefit Ass’n, Inc., 957 F.2d 617, 621 (8th Cir.1992)); Donaho, 74 F.3d at 899 n. 9 (same, also citing Finley). That five-factor test, as explained in Finley v. Special Agents Mutual Benefit Association, Inc., 957 F.2d 617 (8th Cir.1992), consists of the following: In determining whether the [plan administrator’s] interpretation of [disputed terms] and decision to deny the [claimed] benefits are reasonable, [courts] consider [1] whether [the plan administrator’s] interpretation is consistent with the goals of the Plan, [2] whether [the plan administrator’s] interpretation renders any language in the Plan meaningless or internally inconsistent, [3] whether [the plan administrator’s] interpretation conflicts with the substantive or procedural requirements of the ERISA statute, [4] whether [the plan administrator] ha[s] interpreted the words at issue consistently, and [5] whether [the plan administrator’s] interpretation is contrary to the clear language of the Plan. See de Nobel v. Vitro Corp., 885 F.2d 1180, 1188 (4th Cir.1989) (citing cases). Finley, 957 F.2d at 621. b. Review of factual determinations However, when the court is “asked to review the administrator’s evaluation of the facts to determine the application of the Plan ... the five-factor test is not instructive.” Farley, 147 F.3d at 777 n. 6 (citing Donaho, 74 F.3d at 899-900 n. 9). Instead, in such circumstances, “[i]n determining reasonableness, [courts of this circuit] focus on whether the decision is supported by substantial evidence.” Id. at 777 (citing Donaho, 74 F.3d at 900); Donaho, 74 F.3d at 900 (concluding that “ ‘substantial evidence’ is only a quantified reformulation of reasonableness” in cases involving the plan administrator’s evaluation of the facts to determine plan application). “Substantial evidence” is “ ‘more than a scintilla but less than a preponderance.’ ” Woo, 144 F.3d at 1162 (quoting Donaho, 74 F.3d at 900 n. 10). As to the process to determine whether the administrator’s determination is supported by “substantial evidence,” “[courts] consider only the evidence that was before the administrator when the claim was denied.” Farley, 147 F.3d at 777 (citing Brown v. Seitz Foods, Inc., Disability Benefit Plan, 140 F.3d 1198, 1200 (8th Cir.1998)). However, courts do not “substitute [their] own weighing of the evidence for that of the administrator.” Id. (citing Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th Cir.1997)). Despite this deference to the plan administrator’s weighing of the evidence, “[t]he unreasonableness of a plan administrator’s decision can be determined by both the quantity and quality of the evidence supporting it.” Donaho, 74 F.3d at 900. c. The deferential review applicable here The parties agree that, if only deferential review is appropriate here, the determination by Aetna in question involves interpretation of the UPS Plan, and specifically, the interpretation of “accident,” so that the applicable “reasonableness” review is the five-factor test outlined in Finley v. Special Agents Mutual Benefit Association, Inc., 957 F.2d 617, 621 (8th Cir.1992). The court agrees, to the extent that Aetna’s interpretation of “accident” within the meaning of the UPS Plan was in fact outcome determinative of the denial of Mrs. West’s claim for accidental death benefits. However, the court has taken some pains to distinguish review of an administrator’s interpretation of plan terms from review of an administrator’s evaluation of the facts to determine the application of the plan, because the court finds that the parties’ arguments do not reflect a clear application of that distinction in this ease. Thus, the court must determine whether the parties have addressed the “reasonableness” of Aetna’s benefits determination in this case in terms of “plan interpretation,” “evaluation of the facts,” or both. i. “Interpretation” or “evaluation of the facts” in the parties’ arguments. In the portion of her brief asserting that Aet-na’s decision to deny accidental death benefits was arbitrary and capricious, Mrs. West argues primarily that Aetna’s decision is “unreasonable” in light of the five-factor test in Finley. See Plaintiffs Trial Brief, § IV, beginning on page 9. However, she states the standard of review as follows: [T]he Plan Administrator’s decision to deny benefits will stand if reasonable and supported by substantial evidence. See Farley, 147 F.3d at 776. The five (5) factors to determine whether the decision is reasonable are discussed in Cash, 107 F.3d 637 at 641.... Plaintiffs Trial Brief at 10. This statement clearly mixes the two distinct kinds of “reasonableness” review, which, as explained in Donaho and Farley, and by this court above, are applicable to different bases for the administrator’s decision to deny benefits, “substantial evidence” review for the administrator’s evaluation of the facts and the Finley five-factor test for review of the administrator’s plan interpretation. Mrs. West also plainly contests the administrator’s evaluation of the facts when she asserts that, “[ujnless a Court [and presumably a plan administrator] can provide objective facts to support its conclusion that a person who drives while intoxicated knows serious injury or death will result, the court is simply reading into the term ‘accident’ a moralistic judgment,” and then argues that there are not sufficient facts identified by Aetna to demonstrate that a person driving while intoxicated is “highly likely” to die. See Plaintiffs Trial Brief at 28-31. Moreover, in her Amended and Substituted Complaint, Mrs. West’s first two specifications of Aetna’s breach of fiduciary duty appear to be aimed at Aetna’s factual determinations leading to its denial of benefits in this case. Specifically, Mrs. West’s apparent challenges to factual determinations by Aetna consist of the following: 10. Defendant breached its fiduciary duty in denying death benefits to the Plaintiff in the following particulars: (A) In failing to conduct an adequate, thorough investigation prior to determining that the cause of death was not accidental; (B) In determining the cause of death was not accidental without a factual basis to support the conclusion. Amended and Substituted Complaint, ¶ 10. Thus, even though Mrs. West has couched her arguments primarily in terms of a challenge to Aetna’s interpretation of plan terms under the Finley five-factor test, she actually contests Aetna’s decision to deny benefits on the basis of both interpretation of “accident” and Aetna’s evaluation of the facts in the case leading to Aetna’s conclusion that the “accidental death” coverage under the UPS Plan is inapplicable. Aetna also argues the “reasonableness” of its evaluation of the facts to determine application of the plan. Aetna expressly argues, on the basis of citations to the “substantial evidence” standard in Farley, 147 F.3d at 776, that its decision to deny benefits in this case was “supported by the facts which undisputedly show that decedent was acutely intoxicated at the time he drove his car off the road and into a tree” and by “other evidence” suggesting that Mr. West’s intoxication was the cause of the fatal crash. Defendant’s Trial Brief at 8-9. Aetna also argues, on the basis of the evidence of Mr. West’s intoxication, that the consequences of a fatal crash were reasonably foreseeable, see id. at 10, including an argument that the autopsy report is sufficient to establish intoxication as a cause of the crash. See id. at 12-13. Aetna also argues that the autopsy report’s identification of the cause of death as “accident” is not determinative here of the applicability of the UPS Plan. See id. On the other hand, Aetna argues the merits of its interpretation of “accident” within the meaning of the UPS plan under the Finley factors. See id. at 14-16. Thus, the court finds that, although somewhat blurred in their submissions, the parties contest the “reasonableness” of Aetna’s decision both in terms of plan interpretation and evaluation of the facts to decide whether the plan, as interpreted, is applicable. ii. Blurring in the case law. It is not surprising that there is some blurring of the applicable standards in the parties’ submissions, because the distinction in Farley between review of plan interpretation and review of evaluation of facts to determine application of the plan as interpreted has not always been articulated so distinctly. Consideration of three decisions of the Eighth Circuit Court of Appeals will demonstrate the point. The Eighth Circuit Court of Appeals attempted to distinguish between the “reasonableness” review for plan interpretation and the “reasonableness” review for evaluation of facts in Donaho v. FMC Corp., 74 F.3d 894 (8th Cir.1996). In Donaho, the court explained the “reasonableness” determination for evaluation of facts as follows: [A] trustee decision is reasonable if a reasonable person could have reached a similar decision, given the. evidence before him, not that a reasonable person would have reached that decision. Put another way, the committee’s decision need not be the only sensible interpretation, “so long as its decision ‘offer[s] a reasoned explanation, based on the evir dence, for a particular outcome.’” Krawczyk v. Harnischfeger Corp., 41 F.3d 276, 279 (7th Cir.1994) (citations omitted). Donaho, 74 F.3d at 899 (emphasis of “could” and “would” in the original; other emphasis added). Immediately after the text quoted in block above, the court in Donaho pointed out that the Finley factors are not applicable to this sort of factual evaluation. See id., 74 F.3d at 899-900 n. 9. Thus, this quotation and the reference to the Finley factors in the Donaho decision distinguished between reasonableness of “interpretation” of applicability of the plan, “based on the evidence,” ie., as a matter of evaluation of the facts to determine the applicability of the plan, and “interpretation of the plan,” the reasonableness of which is measured by the Finley factors. However, in Cash v. Wal-Mart Group Health Plan, 107 F.3d 637 (8th Cir.1997), although the court relied on Donaho for the applicable standard of review, the distinction between the standards of review applicable to interpretation of plan terms and factual determinations is not as plain as it was in Donaho. First, in Cash, the court explained, The [plan administrator’s] decision will be deemed reasonable if “a reasonable person could have reached a similar decision, given the evidence before him, not that a reasonable person would have reached that decision.” [Donaho, 74 F.3d at 899], If the decision is supported by a reasonable explanation, it should not be disturbed, even though a different reasonable interpretation could have been made. See id. Cash, 107 F.3d at 641 (emphasis in the original). Thus, in the first instance, the court in Cash described “reasonableness” review in terms of “reasonableness” of the decision in light of the evidence before the plan administrator. The “reasonable interpretation” referred to in the second sentence from Cash quoted above, in context, must therefore refer to reasonable interpretation of the evidence. Indeed, this would be consistent with the Donaho decision, upon which the court in Cash relied, in that the court in Donaho stated that “the committee’s decision need not be the only sensible interpretation, ‘so long as its decision offer[s] a reasoned explanation, based on the evidence, for a particular outcome.’ ” Donaho, 74 F.3d at 899 (quoting Krawczyk, 41 F.3d at 279, with citations omitted) (emphasis added here), a matter the court in Donaho described as “evaluation of] facts to determine the plan’s application.” See id. at 899-900 n. 9. Although the court in Cash began with a standard of review for evaluation of the facts, consistent with Donaho, it then identified and applied the Finley factors in reference to the plan administrator’s interpretation of “preexisting condition.” See Cash, 107 F.3d at 641-44. While this was consistent with Donaho, what is confusing is that, immediately following the identification of the Finley factors — which the Donaho decision had stated were not applicable to a factual determination — the court in Cash inserted a statement that, “[i]n making its evaluation, the court does not substitute its own weighing of the evidence for that of the Committee,” which is a standard articulated in Donaho in reference to factual determinations. See Cash, 107 F.3d at 641. The distinction between “reasonableness” review of “plan interpretation” and “evaluation of the facts” becomes even less clear in Solger v. Wal-Mart Stores, Inc., 144 F.3d 567 (8th Cir.1998), a decision that relies on Cash. In Solger, the court apparently read the reference to “interpretation” in Cash as meaning plan interpretation, and/or used “interpretation” as synonymous with “decision”: Applying this deferential standard of review, we will reverse the plan administrator’s interpretation of the plan only if it is unreasonable. We will sustain the administrator’s interpretation if it is reasonable, even if it is not the only reasonable interpretation of the plan, and even if we would have chosen a different interpretation had the initial decision been ours to make. See [Cash, 107 F.3d at 641.] Solger, 144 F.3d at 568 (emphasis added); and compare Cash, 107 F.3d at 641 (as quoted above). Although the court in Sol-ger attempted to state the standard of review for reasonableness of a plan administrator’s “interpretation of the plan,” in reliance on Cash, the court made no reference whatsoever to the Finley factors the court in Cash actually applied to the interpretation of the plan term “preexisting condition.” Indeed, the court in Solger decided the case entirely on the basis of the reasonableness of factual findings that a benefits cap for TMJ treatments and conditions applied to particular treatments and that a condition requiring treatment had been caused by both the claimant’s TMJ and her TMJ implants, and thus treatment for that condition was subject to the TMJ benefits cap. See Solger, 144 F.3d at 569. While the courts in Cash and Solger had the Donaho decision available to them, they did not have the benefit of the subsequent decision in Farley v. Arkansas Blue Cross and Blue Shield, 147 F.3d 774 (8th Cir.1998), which even more clearly distinguishes between the “reasonableness” determination for plan interpretation, on the one hand, and the “reasonableness” determination for factual evaluation, on the other. In Farley, as explained above, the court expressly related the Finley five-factor test to “plan interpretation” and explained that, when “[w]e are asked to review the administrator’s evaluation of the facts to determine the application of the Plan ... the five-factor test is not instructive.” Farley, 147 F.3d at 777 n. 6 (citing Donaho, 74 F.3d at 899-900 n. 9). Instead, Farley holds, in determining the “reasonableness” of the administrator’s evaluation of the facts, courts of this circuit must “focus on whether the decision is supported by substantial evidence.” Id. at 777 (citing Donaho, 74 F.3d at 900). Because the “reasonableness” of Aetna’s decision to deny benefits in this case is contested on the basis of both the “reasonableness” of Aetna’s interpretation of the plan, as regards the meaning of “accident,” and the “reasonableness” of Aetna’s evaluation of the facts to determine whether the UPS Plan is applicable, in light of Aetna’s interpretation of “accident,” the court must conduct both a five-factor Finley test of Aetna’s interpretation of the key plan term and a “substantial evidence” analysis of Aetna’s factual finding that Mr. West’s death does not fit the definition of “accident,” as Aetna has interpreted that plan term. However, before performing this “ordinary” deferential review, see Heaser, 247 F.3d at 833, the court must also take up Mrs. West’s contention that “less deferential” review is appropriate in this case. 2. “Less deferential” review a. When “less deferential” review is appropriate Although courts must “ordinarily review the administrator’s decision for abuse of discretion,” see Heaser, 247 F.3d at 833, as the Eighth Circuit Court of Appeals also explained in Heaser, an administrator’s denial of benefits is not always entitled to that sort of “deferential” review: A plaintiff may obtain less deferential review by presenting “material, probative evidence demonstrating that (1) a palpable conflict of interest or a serious procedural irregularity existed, which (2) caused a serious breach of the plan administrator’s fiduciary duty to her.” Woo, 144 F.3d at 1160. An alleged conflict or procedural irregularity must have some connection to the substantive decision reached. Id. at 1161. A claimant must offer evidence that “giveg rise to serious doubts as to whether the result reached was the product of an arbitrary decision or the plan administrator’s whim” for us to apply the less deferential standard. Layes, 132 F.3d at 1250 (internal quotation marks omitted). Heaser, 247 F.3d at 833. Thus, when faced with a contention that less deferential review is appropriate, the court must decide whether the claimant has “offer[ed] evidence that ‘gives rise to serious doubts as to whether the result reached was the product of an arbitrary decision or the plan administrator’s whim.’ ” Id. (quoting Layes, 132 F.3d at 1250). There are two steps in that process: The court must first decide whether the claimant has presented “material, probative evidence demonstrating that ... a palpable conflict of interest or a serious procedural irregularity existed,” then determine whether that conflict or irregularity “ ‘caused a serious breach of the plan administrator’s fiduciary duty to her.’” Id. (quoting Woo, 144 F.3d at 1160). If the claimant has persuaded the court that there is a conflict of interest or procedural irregularity that caused a breach of the administrator’s fiduciary duty, such that “less deferential” review is appropriate, the court must decide what “proportion” of deference should be given the plan administrator’s determination in light of the conflict of interest or procedural irregularities. See Woo, 144 F.3d at 1161-62. For example, in Woo, after finding a conflict and irregularities that “had a sufficient connection to the decision reached to trigger a less deferential review,” the court decided that the conflict and irregularities were so “egregious” that the court would “require that the record contain substantial evidence bordering on a preponderance to uphold [the administrator’s] decision” to deny benefits on factual grounds. Id. at 1162. b. Plaintiff’s grounds for “less deferential” review i. Conñict of interest. Mrs. West argues that “less deferential” review is appropriate here, because Aetna had a conflict of interest as both insurer and plan administrator for the UPS Plan. She argues that, as a profit-making company, Aetna had a financial interest in denying her claim, to the extent of the benefits it would have to pay. She relies on Armstrong v. Aetna Life Insurance Company, 128 F.3d 1263 (8th Cir.1997), in which the court found that a conflict of interest required heightened scrutiny — indeed, de novo review — of the administrator’s denial of benefits on this ground. Mrs. West argues that her case is an example of why an insurer responsible for paying claims out of its own assets should never be a plan administrator. Although Aetna did not cite the Armstrong decision in its written submissions — despite the fact that the case is clearly on point and clearly involved a related defendant — Aetna argues that an insurer does not necessarily have a conflict of interest, simply because it is the plan administrator and the financially responsible entity, citing Lawyer v. Hartford Life and Accident Insurance Company, 100 F.Supp.2d 1001, 1009 (W.D.Mo.2000), and Davolt v. Executive Committee of O’Reilly Automotive, 206 F.3d 806, 809 (8th Cir.2000). Aetna contends that other authority, including the decision in Lawyer, suggests that any “conflict of interest” arising from its financial interest in whether or not a particular claim was paid was negated in the circumstances presented here by its long-term business interests, which would be hurt by unwarranted denial of claims. In Armstrong, the Eighth Circuit Court of Appeals concluded that the Aetna entity that was the plan administrator in that case “faces a continuing conflict in playing the dual role of administrator and insurer of health benefit plans” because “[a]s the insurer, Aetna has an obvious interest in minimizing its claim payments,” Aetna had “claims savings” incentives for its claims reviewers, and this arrangement was not “the type ERISA provides as administered ‘solely in the interest of the participants and beneficiaries.’ ” Armstrong, 128 F.3d at 1265 (quoting 29 U.S.C. § 1104(a)(1)). Similarly, here, the Aetna entity that administered the UPS Plan also has “an obvious interest in minimizing its claim payments,” where it is also the insurer, which means that it “faces a continuing conflict in playing the dual role of administrator and insurer of the [accidental death benefits] plan.” Of. id. This is not a case in which the administrator/insurer is a not-for-profit organization, such that it would not necessarily be conflicted by a profit motive in its benefits determinations. See Farley, 147 F.3d at 777 & n. 5. Although Mrs. West urges the court to find that the same kind of “claims savings” incentives were at work here as in Armstrong, in the absence of any evidence that such incentives had been discontinued in the relatively brief interval between the Armstrong decision and the denial of her claim for accidental death benefits, the court will not do so, because, as Aetna rightly points out, there is no showing that the same claims investigation personnel were involved in the denial of health benefits in Armstrong and the denial of accidental death benefits in this case, or that similar “claims saving” incentives were ever used in the processing of accidental death benefits claims. In a more recent decision, Davolt v. Executive Committee of O’Reilly Automotive, 206 F.3d 806 (8th Cir.2000), the Eighth Circuit Court of Appeals concluded that Armstrong “did not ... create a blanket rule mandating de novo review in all cases where the insurer of a health benefits plan is also the plan administrator.” Davolt, 206 F.3d at 809. Rather, the court in Davolt read Armstrong to hold “that the inquiry is fact specific and limited to instances where the relationship places the ERISA benefits plan administrator in a ‘perpetual’ conflict of interest.” Id. (citing Armstrong, 128 F.3d at 1265). Thus, “[although the fact that the plan administrator is also the insurer may give rise to a conflict of interest, the district court [in Davolt ] erred when it assumed an automatic conflict of interest existed.” Id.; see also Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583, 587 (8th Cir.1999) (where an insurer/plan administrator “will have a direct financial benefit when it denies a claim[, s]uch a conflict of interest may trigger a less deferential standard of review”) (emphasis added). Reading Armstrong through the lens of Davolt, this court notes that, in Armstrong, the court found a “perpetual conflict” warranting de novo review on the basis of the “continuing conflict in playing the dual role of administrator and insurer of the ... plan,” and the presence of a “claims savings” incentives program for claims reviewers that violated the requirement of ERISA that the plan be administered “ ‘solely in the interest of the participants and beneficiaries.’ ” Armstrong, 128 F.3d at 1265 (quoting 29 U.S.C. § 1104(a)(1)). Here, the “continuing conflict” is also present, because Aetna is once again the plan administrator and insurer, but the court concluded above that it could not assume the same “claims savings” incentives were still at work. Thus, while a conflict of interest exists, the evidence that Aetna is both the insurer and plan administrator is not sufficient, standing alone, to demonstrate a “perpetual conflict.” See Davolt, 206 F.3d at 809. Aetna argues that the decision in Lawyer demonstrates that any conflict of interest is not sufficiently “palpable” and “perpetual” to invoke less deferential review, when the supposed conflict is measured against Aetna’s long-term business interest in not arbitrarily denying claims. In Lawyer, Hartford Life argue[d] that while its dual roles may not provide for total neutrality, its financial interest (as benefits payor) in Lawyer’s benefits claim was minimal. At most, Hartford Life would have been liable for a total of $65,000 in benefits to Lawyer over a ten-year period. Considering the fact that Hartford Life’s long-term business goals would not be well-served by routine denial of valid claims for benefits, the minimal financial impact that Lawyer’s claim would have militates against a conflict of interest finding in this case. Lawyer, 100 F.Supp.2d at 1009-1010 (citations omitted). Aetna argues that Mrs. West’s $67,000 likewise has “minimal” impact on Aetna’s financial interests. However, as Mrs. West contends, the Lawyer decision is distinguishable, because the $67,000 in accidental death benefits at issue in this case is payable in a lump sum, not over several years. See id. Nevertheless, the court finds that even this lump sum may provide only “minimal” financial impact upon Aetna, when Aetna’s size and financial base are considered. What is more persuasive to the court is Mrs. West’s contention that the conflict of interest here should not be considered only in light of her own claim for accidental death benefits, but in light of the impact of Aet-na’s definition of “accident” and denial of accidental death benefits under that definition upon all fatal automobile crash cases in which the decedent’s intoxication is a significant contributing factor. The court agrees that, on this basis, there is sufficient evidence of a “perpetual conflict” in this case to impose some heightened scrutiny upon Aetna’s determination, because that determination involves an interpretation of policy terms that may reach far beyond this particular case. Cf. Armstrong, 128 F.3d at 1265 (a systemic interest in claims savings demonstrated by “claims savings” incentives created a “perpetual” conflict of interest). Moreover, the “connection” between the conflict of interest and the benefits determination in this case is direct and substantial. See Heaser, 247 F.3d at 833 (in addition to a “palpable conflict of interest,” the claimant must show that the conflict of interest “caused a serious breach of the plan administrator’s fiduciary duty to her”); Woo, 144 F.3d at 1161-62 (considering whether a conflict and irregularities “had a sufficient connection to the decision reached to trigger a less deferential review”). Interpretation of “accident” and application of that term, as interpreted, in cases involving the claims of intoxicated drivers for accidental death benefits in such a way as to deny those claims would be of direct financial benefit to Aetna, and the interest in avoiding such claims in the aggregate on a purportedly “valid” basis of plan interpretation is not ameliorated by long-term business interests or the relative smallness of any individual claim. ii. Procedural irregularity. Mrs. West also argues that Aetna engaged in procedural irregularities in the denial of her claim, because Aetna failed to apply New York law in arriving at its interpretation of “accident,” even though application of New York law was required by the express terms of the UPS Plan. Mrs. West contends that Aetna ignored New York law, because application of New York law would have barred Aetna’s interpretation of “accident.” Aetna argues that this is not the sort of “procedural irregularity” contemplated in Woo, because the evidence here is that Aetna thoroughly investigated Mrs. West’s claim and there is no complaint about the way the claim was processed. In Woo, the court found a “serious procedural irregularity,” sufficiently connected to the benefits decision to add support to its conclusion that “sliding scale” review at the least deferential end was required, as follows: Hartford was confronted with medical evidence of an uncommon disease and the opinions of two treating physicians stating that, in retrospect, Woo had been disabled from her job before she resigned. We hold that, under these circumstances, Hartford failed to use proper judgment by not having a sclero-derma expert review her claim. Woo, 144 F.3d at 1161. The court agrees that there is some similarity between a failure to interpret a policy term in accord with the law applicable to the contract by virtue of a choice-of-law clause, as in this case, and the failure to employ a properly qualified expert to review a claim involving an uncommon disease, as in Woo. However, as will be discussed more fully below, the impact of a choice-of-law clause in an ERISA plan may be of less significance than it might be in another kind of insurance case. Therefore, the court cannot find a procedural error that is of sufficient gravity, standing alone, to invoke less deferential review or to heighten the level of scrutiny above what is required in light of Aetna’s conflict of interest. c. The appropriate degree of deference When the plaintiff establishes that “less deferential” review is appropriate, as Mrs. West has done here on the basis of Aetna’s “perpetual” conflict of interest, one panel of the Eighth Circuit Court of Appeals has held that the reviewing court should apply a “sliding scale” approach, under which the court “will decrease the deference given to the administrator in proportion to the seriousness of the conflict of interest or procedural irregularity.” Woo, 144 F.3d at 1162-63 (adopting the “sliding scale” approach formulated in this way). Thus, when the question is whether there is “substantial evidence” to support an administrator’s factual determination to deny benefits under the plan, “sliding scale” review requires that “the evidence supporting the plan administrator’s decision must increase in proportion to the seriousness of the conflict or procedural irregularity.” Id. The Eighth Circuit Court of Appeals does not appear to have applied the “sliding scale” approach to review of an administrator’s interpretation of a plan. Nevertheless, it follows from the explanation of the “sliding scale” approach offered in Woo that the weight of each factor in the five-factor test favoring the administrator’s interpretation of the plan must increase in proportion to the seriousness of the conflict or procedural irregularity. Cf. Woo, 144 F.3d at 1162 (defining the “sliding scale” approach in relation to a factual determination made by the administrator in light of a conflict of interest or procedural irregularity). However, the court finds that the question of whether proof of a conflict of interest or procedural irregularity on the part of the plan administrator invokes only less deferential “sliding scale” review for “abuse of discretion,” or instead invokes de novo review, is not altogether settled in this circuit. Compare Armstrong, 128 F.3d at 1265 (holding that the plan administrator’s conflict of interest required the court “to review Aetna’s decision to deny benefits de novo,” over Judge Beam’s dissent asserting that the review should be “sliding scale” review for abuse of discretion), with Woo, 144 F.3d at 1161-62 (opinion by Judge Beam, holding that “sliding scale” review, rather than de novo review, is appropriate where a plan administrator has a conflict of interest, and that such a rule “adheres to” Armstrong, because in that decision “the egregious circumstances essentially required the court to give no deference to the administrator’s decision”). See also Heaser, 247 F.3d at 833 (referring only to “less deferential review” without defining such review as de novo or “sliding scale” review for abuse of discretion, because the court found insufficient evidence of a conflict or irregularity); Davolt, 206 F.3d at 809 (recognizing that, when the claimant asserts that the plan administrator had a conflict of interest or engaged in procedural irregularities, the appropriate standard of review might be “arbitrary and capricious” review, de novo review, or “even one determined on an intermediate ‘sliding scale,’ ” citing Woo). Although the court finds that Aetna suffered from a conflict of interest in this case that is sufficiently connected to the benefits determination and sufficiently grave to deprive Aetna of fully deferential review, the court need not decide the precise proportion of deference due Aetna’s determination under the “sliding scale” approach, nor must it decide whether the conflict is so “egregious” as to require only de novo review, until such time as it is clear that the standard of review would be outcome determinative. See Davolt, 206 F.3d at 809 (“We need not resolve this question [of the degree of deference or applicability of de novo review], however, because any standard of review (“even one determined on an intermediate ‘sliding scale,’ see Woo, 144 F.3d at 1161-62) will yield the same result”). Indeed, Mrs. West herself contends that, even if Aetna is entitled to fully deferential review for an abuse of discretion, Aetna’s denial of benefits on the basis of its interpretation of “accident” under the UPS Plan was an abuse of discretion, in light of the five-factor test applied in Finley, 957 F.2d at 621. Therefore, the court will consider, at least in the first instance, whether or not Aetna’s decision can be upheld under a fully deferential review of its plan interpretation. B. Application Of The Five-Factor Test As explained above, “[w]hen determining whether an administrator’s interpretation of a plan is reasonable, [courts in this circuit] apply a five-factor test” derived from Finley v. Special Agents Mut. Benefit Ass’n, Inc., 957 F.2d 617 (8th Cir.1992). See, e.g., Farley, 147 F.3d at 777 n. 6 (citing Finley, 957 F.2d at 621). However, before attempting to apply the five-factor test articulated in Finley, the court must first decide precisely how Aetna defined “accident” within the meaning of the accidental death benefits portion of the UPS Plan. This step is important, because the court finds that the parties have not clearly distinguished between Aetna’s interpretation of the critical plan term and Aetna’s evaluation of the facts in this case to determine the application of the Plan in light of the chosen definition of “accident.” 1. Aetna’s definition of “accident” Mrs. West, in particular, seems to equate Aetna’s definition of “accident” with its determination that the death of an intoxicated driver, in this case, is not an “accident.” For example, in analyzing the first Finley factor, Mrs. West argues that “[t]here is no doubt that Aetna’s decision to deny benefits cannot be consistent with the goals of the plan,” where she argues that “Aetna denied payment of benefits in this case because [her] husband was intoxicated the night he was killed.” See Plaintiffs Trial Brief at 10; see also id. at 16 (arguing that Aetna’s definition of “accident” “reads in” an intoxication exclusion). However, the Finley factors are not applicable to determining whether the administrator’s “decision” was reasonable, but to “whether an administrator’s interpretation of a plan is reasonable.” Farley, 147 F.3d at 777 n. 6 (emphasis added); Donaho, 74 F.3d at 899-900 & n. 9; Finley, 957 F.2d at 621. To the extent that Mrs. West challenges Aetna’s interpretation of “accident,” she contends that Aetna is “utilizing” or “resurrecting” the outmoded “accidental means” test, which looks to the insured’s conduct to determine if there was any intentional act by the decedent that increased the risk of harm and, if so, holds that the event causing death was not an “accident.” See Plaintiffs Trial Brief at 10 and passim. Thus, she argues that Aet-na’s definition of “accident” simply excludes benefits where the decedent’s death is “by reason of intoxication,” because intoxication purportedly increased the risk of harm. Aetna acknowledges that “accident” is not defined in the policy itself. See Defendant’s Trial Brief at 9. Rather, Aetna contends that, in the discretion granted it under the policy, it defined “accident” as “an event which happens by chance, or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen.” Defendant’s Trial Brief at 9-10 (quoting June 15, 1998, Denial Letter at 2, Joint Appendix at 48, and October 5, 1998, Reaffirmation of Denial Letter at 2, Joint Appendix at 51, with emphasis added by Aetna in its brief); see also id. at 15 (reiter