United States Court of Appeals For the First Circuit

No. 21-1140

MARY ALEXANDRE,

Plaintiff, Appellant,

v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Thompson and Kayatta, Circuit Judges, and Katzmann, Judge.

Lawrence R. Metsch, with whom Metschlaw, P.A., Amiel Z. Weinstock, and AZW Law, LCC were on brief, for appellant. Lincoln A. Rose, with whom Tamara Smith Holtslag and Peabody & Arnold LLP were on brief, for appellee.

January 3, 2022

 Of the United States Court of International Trade, sitting by designation. KATZMANN, Judge. This action arises under the Employee

Retirement Income Security Act of 1974 ("ERISA"), a federal statute

designed to protect the interests of participants and their

beneficiaries in employee benefit plans.1

et

seq. Plaintiff Mary Alexandre appeals a decision by the U.S.

District Court for the District of Massachusetts upholding

defendant National Union Fire Insurance Company of Pittsburg, PA's

denial of accidental death insurance benefits to Alexandre

following her husband's death on the grounds that he had committed

suicide. Plaintiff asks that we remand to the district court with

instructions to enter judgment in her favor. We are not persuaded

by Plaintiff's arguments and we affirm the district court's

decision.

I. Background

A. Facts

1. The Accidental Death and Dismemberment Insurance Plan

In May 2018, Plaintiff Mary Alexandre ("Alexandre") was

1 ERISA applies to: any employee benefit plan if it is established or maintained -- (1) by any employer engaged in commerce or actively affecting commerce; or (2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or (3) both. Wickman v. Nw. Nat'l Ins. Co.,

(1st Cir. 1990) (citing

(a)).

- 2 - employed by PricewaterhouseCoopers, LLP ("PwC") and resided in

Boston. Through PwC, Alexandre enrolled in an accidental death

and dismemberment insurance policy ("the AD&D Policy" or "the AD&D

Plan"), an employer-sponsored welfare plan that afforded

participants like Alexandre rights and protections under ERISA.

Under said AD&D Policy, Alexandre's husband, Marzuq Muhammad

("Marzuq"), 2 was insured for a death benefit of $500,000 with

Alexandre named as the beneficiary.

While PwC served as the Sponsor and Administrator of

Alexandre's AD&D Policy, PwC retained defendant National Union

Fire Insurance Company of Pittsburgh, PA ("National Union") to

insure the Policy and to assume fiduciary responsibility for claim

determinations. Concerning claims, the Summary Plan Description

("SPD")3 provided to Alexandre by PwC states, in relevant part:

Payment of Death Benefits If you or a covered dependent die as the result of, and within 365 days after, an accident that occurs while AD&D coverage is in effect, the full amount of your or

2 We note that because our factual recitation requires discussion of both the deceased, Marzuq Muhammad, as well as his brother, Mujihad Muhammad, for clarity, we will refer to them by their first names throughout. 3 The ERISA statute requires that plan participants receive a Summary Plan Description, see

(b), "written in a manner calculated to be understood by the average plan participant,"

(a). ERISA contemplates that the SPD will be an employee's primary source of information regarding employment benefits. Sidou v. Unumprovident Corp.,

(D. Me. 2003) ("[T]he SPD 'is an employee's primary source of information regarding employment benefits.'" (quoting Mario v. P & C Food Mkts., Inc.,

(2d Cir. 2002))).

- 3 - your covered dependent's AD&D coverage will be paid to the designated beneficiary(ies) in a lump sum.

(emphasis added). Neither the SPD nor the official Plan documents

-- which articulate the complete details of and legally govern the

AD&D Policy -- define the term "accident." However, the AD&D

Policy explicitly excludes from coverage "losses, disability, or

death caused by" "suicide or any attempt at suicide or

intentionally self-inflicted injury or any attempt at

intentionally self-inflicted injury." The AD&D Policy further

states that National Union "has the right to interpret the

provisions of th[e] Plan, and [that] its decisions are conclusive

and binding," but explains that unsatisfied participants "have the

right to bring a civil action under Section 502(a) of ERISA within

one year of the final adverse benefit determination."

2. Marzuq Muhammad's Death

The circumstances that gave rise to Alexandre's claim

for death benefits under the AD&D Policy are as follows: On May

20, 2018, Alexandre's husband, Marzuq, died after falling nine

stories from a hotel balcony in Atlanta, Georgia. Marzuq and his

brother, Mujihad, had traveled from Boston to Atlanta on May 18

for an event and were staying overnight in a tenth-floor hotel

room at the Hyatt Regency Hotel at the time of Marzuq's death.

According to the Fulton County Medical Examiner's

Investigative Summary -- which details the accounts of Mujihad and

- 4 - another witness in the immediate aftermath of Marzuq's death --

early on May 20, 2018, Marzuq "grabbed and squeezed" Mujihad's

hand so that Mujihad "awakened to see [Marzuq] in a full sprint

towards the door." Immediately thereafter, Mujihad heard a "loud

noise" and emerged from his hotel room to see Marzuq "kicking and

wiggling" in a flower arrangement one story below on the ninth-

floor ledge.

The Medical Examiner's report further details that

Mujihad yelled to his brother "no[,] no, keep still," and that the

other witness -- who was in the hotel atrium below -- heard Mujihad

yell to Marzuq "no[,] no, keep still, don't do it." Marzuq then

rolled off the ninth-floor ledge and fell to the atrium floor.

Marzuq died on impact and his final Death Certificate listed his

death as a suicide.

3. The Claim Denial

Following Marzuq's death, Alexandre submitted a claim

under the AD&D Policy to National Union for accidental death

benefits. On July 31, 2019, AIG Claims Inc. -- the Claims

Administrator for National Union -- informed Alexandre by letter

that because Marzuq's "death was not a result of bodily injury

sustained as a direct result of an unintended, unanticipated

accident but was the result of suicide or an intentionally self-

inflicted [i]njury," it was outside the scope of the AD&D Policy's

coverage; Alexandre's claim for accidental death benefits was thus

- 5 - denied. According to the denial letter, AIG based this rejection

upon Alexandre's claim form, Marzuq's Death Certificate, the

autopsy report, the City of Atlanta Incident Report, and the Fulton

County Medical Examiner's Investigative Summary.

Alexandre appealed the denial of benefits to AIG's

Global Personal Accident & Health Division on September 4, 2019.

As part of this appeal, Alexandre submitted a sworn declaration by

Mujihad -- taken on September 3, 2019 -- disputing the

determination that his brother had committed suicide. Mujihad's

sworn declaration differed in certain respects from the account he

gave to the authorities at the scene of Marzuq's death;

specifically, in contrast to Mujihad's statement recorded in the

Medical Examiner's report that Marzuq exited the brothers' hotel

room "in a full sprint" immediately before landing in a flower

arrangement on the ninth-floor ledge, Mujihad's September 2019

account stated that Marzuq "did not appear to be disturbed or

alarmed" as he "went out the door."

On May 4, 2020, AIG -- on behalf of National Union --

affirmed the denial of benefits to Alexandre by letter. In

reaching this decision, AIG conveyed that it had considered

Alexandre's appeal letter, Mujihad's September 2019 sworn

declaration, case law submitted by outside counsel, and other

materials, including those outlined in the July 31, 2019 denial

letter. AIG further explained that in assessing the nature of

- 6 - Marzuq's death on appeal, it considered the contemporaneous

investigative reports by the officials in Georgia to be "more

credible than the singular, after-the-fact Declaration of

Mujihad."

B. Proceedings

On January 21, 2020, Alexandre filed suit against

National Union under § 502(a)(1)(B)4 of ERISA in the U.S. District

Court for the Southern District of Florida seeking $500,000 in

accidental death benefits provided for by the AD&D Policy. On

February 19, 2020, National Union moved to transfer the case to

the U.S. District Court for the District of Massachusetts

("district court") pursuant to

(a),5 which the

4 ERISA § 502, codified at

(a)(1)(B), provides in relevant part: (a) Persons empowered to bring civil action A civil action may be brought - (1) by a participant or beneficiary – . . . (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; 5

provides, in relevant part: (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.

- 7 - Florida District Court granted on March 30, 2020.

Prior to the transfer, on March 17, 2020, Alexandre moved

for summary judgment, invoking the presumptions against suicide

and in favor of an accident adopted by the Eleventh Circuit in

Horton v. Reliance Standard Life Insurance Co.,

(11th

Cir. 1998). Following the transfer, on May 19, 2020, National

Union cross-moved for summary judgment on the grounds that Marzuq's

death was not accidental, as informed by the First Circuit's

analytical framework set forth in Wickman v. Northwestern National

Insurance Co.,

(1st Cir. 1990).

The district court granted National Union's motion for

summary judgment, denied Alexandre's motion, and entered a final

judgment in favor of National Union on January 20, 2021. In

reaching this decision, the district court applied the First

Circuit's Wickman framework to find that National Union did not

abuse its discretion in determining that Marzuq's death was not an

"accident," and was, thus, excluded from coverage under the AD&D

Policy. In dicta, the district court also considered the Eleventh

Circuit's presumption against suicide, as set forth in Horton, but

found it to be overcome.

Alexandre timely filed her notice of appeal on February

18, 2021.

C. Legal Framework

Before we dive into the parties' specific contentions on

- 8 - appeal, we note that "[t]he reader may understand our decision in

this case more easily by keeping in mind the following legal

background." Bos. Trading Grp., Inc. v. Burnazos,

(1st Cir. 1987). In enacting ERISA, Congress sought to

implement "a unified system of federal rules to govern the

administration of employee benefit plans."6 As such, Congress

included a "virtually unique preemption provision," Franchise Tax

Bd. v. Constr. Laborers Vacation Tr.,

, 24 n.26 (1983),

that states ERISA "supersede[s] any and all State laws insofar as

they . . . relate to any [covered] employee benefit plan,"

(a).7 ERISA "provides an exclusive federal cause of

action" for resolving "suit[s] by a beneficiary to recover benefits

from a covered plan," Metro. Life Ins. Co. v. Taylor,

,

62–63 (1987), with state common law causes of action preempted,

at 60 (citing Pilot Life Ins. Co. v. Dedeaux,

(1987)).

Although ERISA is a "comprehensive and reticulated

statute," Nachman Corp. v. Pension Benefit Guar. Corp.,

(1980), since its inception, both Congress and the Supreme

6 Joshua A.T. Fairfield, Comment, ERISA Preemption and the Case for a Federal Common Law of Agency Governing Employer- Administrators,

, 225 (2001).

7 Although not before the court in this case, for the sake of completeness, we note that the statute "saves" certain state-law rules -- such as laws regulating insurance -- from preemption as part of ERISA's "Savings Clause."

(b)(2)(A).

- 9 - Court have recognized that courts must develop a federal common

law to interpret and fill in the gaps of ERISA.8 For example, in

the Conference Report on ERISA, Senator Jacob Javits -- one of the

sponsors of the draft legislation9 -- asserted that "[i]t is . . .

intended that a body of Federal substantive law will be developed

by the courts to deal with issues involving rights and obligations

under private welfare and pension plans." 120 Cong. Rec. S29,942

(1974) (statement of Sen. Jacob Javits). The Supreme Court has

repeatedly invoked this statement by Senator Javits in support of

courts' authority to develop federal common law under ERISA. See,

e.g., Firestone Tire & Rubber Co. v. Bruch,

(1989) ("Given . . . [ERISA's] history, we have held that courts

are to develop a 'federal common law of rights and obligations

under ERISA-regulated plans.'" (first quoting Pilot,

; then citing Franchise Tax Bd.,

n.26)). Courts

contributing to this federal common law are guided -- and limited

-- "by ERISA's language, structure and purpose."10

8 "The federal common law is generally defined as 'any rule of federal law created by a court when the substance of that rule is not clearly suggested by federal enactment.'" George Lee Flint, Jr., ERISA: Reformulating the Federal Common Law for Plan Interpretation,

, 967 (1995) (quoting George D. Brown, Federal Common Law and the Role of the Federal Courts in Private Law Adjudication--A (New) Erie Problem?,

, 230 (1992)). 9 See Jeffrey A. Brauch, The Federal Common Law of ERISA,

, 550 (1998). 10 See Joseph J. Torres, et al., Jenner & Block, Practice Series:

- 10 - Of specific relevance to the case at bar, two areas in

which courts have been active in developing federal common law

under ERISA include: (1) the standard of review for plan

administrator decisions; and (2) plan interpretation.

1. Standard of Review

ERISA is silent as to whether, upon review, courts should

afford any deference to a plan trustee's benefit eligibility

determination.11 In Firestone, the Supreme Court declared that "a

denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is

to be reviewed under a de novo standard unless the benefit plan

gives the [plan] administrator or fiduciary discretionary

authority to determine eligibility for benefits or to construe the

terms of the plan."

. In the latter case, the

First Circuit has determined that a reviewing court "must uphold

the administrator's determination unless it was 'arbitrary,

capricious, or an abuse of discretion.'" Stamp v. Metro. Life

Ins. Co.,

(1st Cir. 2008) (quoting Wright v. R.R.

Donnelley & Sons Co. Grp. Benefits Plan,

(1st Cir.

2005)). "Thus, the current standard of review -- de novo review

unless the [benefit plan] explicitly gives authority to the plan

administrator -- was imposed through the exercise of federal common

ERISA Litigation Handbook, 231 (6th ed. 2021). 11 Brauch, supra note 9, at 572.

- 11 - law."12

2. Plan Interpretation

The ERISA statute, likewise, does not set forth

principles of interpretation to determine the meaning of undefined

terms contained in ERISA-covered plans.13 The federal courts have,

therefore, undertaken to fashion a body of common-law principles

on plan interpretation, with many adhering to common-sense canons

of contract interpretation. See, e.g., Burnham v. Guardian Life

Ins. Co. of Am.,

(1st Cir. 1989) ("[T]he 'federal

common law of rights and obligations'" under ERISA "must embody

common-sense canons of contract interpretation." (quoting Pilot,

)). Several courts -- this one included -- have

further declared that state laws on policy interpretation are

preempted under ERISA. See, e.g., Bellino v. Schlumberger Techs.,

Inc.,

(1st Cir. 1991) ("The benefit provisions of

an ERISA–regulated plan [must be] interpreted under principles of

federal substantive law.") (first citing Firestone,

; then citing Burnham,

)); see also Sampson v.

Mut. Benefit Life Ins. Co.,

, 109–10 (1st Cir. 1988)

(rejecting the argument "that the substantive law of Massachusetts

-- rather than the body of federal common law that has grown up

12 Brauch, supra note 9, at 573 (emphasis added). 13 Brauch, supra note 9, at 573.

- 12 - around ERISA -- should govern the interpretation of the . . .

policy" at issue).

As a specific -- and pertinent -- example concerning

plan interpretation, various circuits have added to the federal

common law on ERISA by formulating approaches for construing the

term "accident" when left otherwise undefined in AD&D insurance

policies.

For example, in the First Circuit, our precedent in

Wickman provides the analytical framework for interpreting the

term "accident."

. Under Wickman, for an

insured's death to qualify as a covered "accident," "the

beneficiary must demonstrate that the insured did not expect an

injury similar in type or kind and that the suppositions underlying

this expectation were reasonable," from the perspective of the

insured. Wightman v. Securian Life Ins. Co.,

,

467 (D. Mass. 2020) (discussing Wickman,

and

citing McGillivray v. Life Ins. Co. of N. Am.,

(D. Mass. 2007)). If "the evidence [is] insufficient to

accurately determine the insured's subjective expectation, the

fact-finder should then engage in an objective analysis of the

insured's expectations." Wickman,

.

In the Eleventh Circuit, the aforementioned Horton case

supplies a different approach for construing the term "accident"

in ERISA-covered policies.

. There, the Eleventh

- 13 - Circuit announced that "when the evidence is inconclusive as to

whether [a] deceased died by accidental or intentional means," it

is "appropriate" to use "the legal presumptions against suicide

and in favor of accidental death" to determine insurance benefit

eligibility.

The court affirmed that -- at least in the

Eleventh Circuit -- "[t]hese presumptions are properly part of the

pertinent federal common law" governing ERISA.

With this legal background in mind, we now proceed to

consider the parties' specific issues on appeal.

II. DISCUSSION

Suits brought under ERISA are federal questions for the

purposes of federal court jurisdiction, see Taylor, 481 U.S. at

65–66 (discussing

(a)(1)(B)); thus, this case is

properly in federal court pursuant to

We have

appellate jurisdiction to review the district court's final

decision pursuant to

We review the district

court's grant of summary judgment de novo. Wright,

establishes federal-question jurisdiction: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 15

provides in pertinent part: The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States. . . .

- 14 - 73-74 (citing Boardman v. Prudential Ins. Co. of Am.,

(1st Cir. 2003)).

A. Decisional Law

Alexandre first contends that the district court erred

when, following the transfer of the action from the Southern

District of Florida, it granted summary judgment to National Union

using the First Circuit's Wickman framework, rather than granting

summary judgment to Alexandre on the basis of the Eleventh

Circuit's presumption against suicide and in favor of an accident,

as articulated in Horton. Alexandre further argues that the First

Circuit decision upon which the district court relied in applying

the transferee court's law as opposed to that of the transferor

court -- namely, AER Advisors, Inc. v. Fidelity Brokerage Services,

LLC,

(1st Cir. 2019) -- contravenes Supreme Court

guidance and should be overruled.16

By contrast, National Union contends as a threshold

matter that Alexandre's argument that Eleventh Circuit precedent

controls is waived because "Alexandre did not make this 'governing

law' argument below"; in the alternative, National Union argues

that the First Circuit's decision in AER Advisors properly controls

and, thereby, dictates that the law of the First Circuit -- as the

16To clear up any confusion that may be caused by the "legalese," here, the Florida federal court was the "transferor court" and the Massachusetts federal court was the "transferee court."

- 15 - transferee court considering a federal question -- applies.

1. Waiver

We find National Union's first contention -- that

Alexandre did not preserve her governing law argument -- to be

overly formalistic. After the case was transferred from the

Florida District Court to the Massachusetts District Court,

Alexandre continued to argue that the Eleventh Circuit's

presumption against suicide, as elucidated in Horton, should

apply. For example, in Alexandre's Memorandum of Law in

Opposition to Defendant's Cross-Motion for Summary Judgment

submitted to the district court, Alexandre contested National

Union's motion for dismissal predicated on our Wickman decision,

asserting:

Because the facts underlying the Wickman decision are materially distinguishable from the facts underlying this case, [National Union's] cross-motion for summary judgment should be denied and [Alexandre's motion for summary judgment] should be granted on the authority of the decision in Horton v. Reliance Standard Life Insurance Company,

(11th Cir. 1998).

While Alexandre's Opposition Memorandum to the district court may

not have included the specific words "governing law," implicit in

her argument is the question of which circuit's case law applies

following the transfer of a case under

(a); this

is so because a federal court in Massachusetts would not decide a

case "on the authority of" the Eleventh Circuit's precedent without

determining that it was the governing law.

- 16 - Moreover, the district court understood Alexandre's

statements to comprise a governing law argument and, thus,

responded to it as such. For example, in its Memorandum and Order

on Cross-Motions for Summary Judgment, the district court

declared:

As an initial matter, Eleventh Circuit precedents are not binding on the Court. And that remains true here even though the case was originally filed in the Southern District of Florida. The First Circuit recently explained that after a federal-question case is transferred pursuant to § 1404(a), the transferee court should apply its own circuit's precedents concerning the meaning of federal law. Because we agree with the district court's assessment that

Alexandre raised a governing law argument below, we find no waiver.

As such, we proceed to consider and reject Alexandre's governing

law argument on the merits.

2. Merits

Alexandre's argument that the law of the Eleventh

Circuit -- as the transferor court -- applies is foreclosed by our

decision in AER

. Precedent is a bedrock to

our system of adjudication. See United States v. Barbosa,

(1st Cir. 2018). Our "'law of the circuit'" doctrine,

"a subset of stare decisis," dictates that "newly constituted

panels in a multi-panel circuit court are bound by prior panel

decisions that are closely on point." San Juan Cable LLC v. P.R.

Tel. Co., Inc.,

(1st Cir. 2010) (emphasis added)

(citing United States v. Rodríguez–Vélez,

(1st

- 17 - Cir. 2010) and United States v. Wogan,

(1st

Cir. 1991)). "Although this rule is not 'immutable,' the

exceptions are extremely narrow and their incidence is hen's-

teeth-rare."

(quoting Carpenters Local Union No. 26 v. U.S.

Fid. & Guar. Co.,

(1st Cir. 2000)). "Absent

special circumstances," -- such as a ruling of the Circuit sitting

en banc -- "we are duty bound to follow our prior holding." United

States v. Hudson,

(1st Cir. 2016) (citing United

States v. Chhien,

(1st Cir. 2001) (listing

exceptions)). Quite apart from the fact that a single panel is

generally not authorized to overrule a prior panel's decision,

Alexandre offers no new or previously unaddressed reason to deviate

from our recent decision in AER Advisors; we decline her invitation

to overrule that precedent and to apply the Eleventh Circuit's

Horton presumption to her claim.

Alexandre acknowledges that her claim comprises a

federal question for the purposes of federal court jurisdiction.

In AER Advisors, we explained that "when one district court

transfers a case to another, the norm is that the transferee court

applies its own Circuit's cases on the meaning of federal law."

(emphasis added). 17 Nevertheless, Alexandre

17As we noted in AER Advisors, this principle has been endorsed by at least the Second, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits. See

at 288 n.5 (collecting cases).

- 18 - invokes the Supreme Court cases Van Dusen v. Barrack,

(1964) and Ferens v. John Deere Co.,

(1990) -- which

held that in diversity cases18 the transferee courts must apply the

substantive law of the transferor courts -- to contend that "[t]he

inference to be drawn from the foregoing is ineluctable: in any

civil action, whether based upon the parties' diverse citizenship

or a federal question, following a transfer under

(a), the transferee court is obligated to apply the

transferor court's governing law." (emphasis added).

However, we considered and rejected this exact argument

in AER Advisors, explaining that "Van Dusen and Ferens are

diversity cases. And with diversity cases, federalism commands

that federal judges apply state substantive law exactly as a state

court would."

(citing Erie R.R. Co. v. Tompkins,

(1938)). Whereas with "'the adjudication of

federal claims,' federal courts ordinarily 'comprise a single

system in which each tribunal endeavors to apply a single body of

law,' and if different circuits view federal law differently, then

the Supreme Court can restore 'uniformity.'"

at 288 (quoting

In re Korean Air Lines Disaster of Sept. 1, 1983,

,

18"Diversity cases" are those cases over which federal courts can assert jurisdiction because the parties are citizens of different states and the amount in controversy exceeds $75,000. McKenna v. Wells Fargo Bank, N.A.,

, 211–12 (1st Cir. 2012) (citing

(a)).

- 19 - 1175, 1176 (D.C. Cir. 1987), aff'd on other grounds sub nom. Chan

v. Korean Air Lines, Ltd.,

(1989)). Thus, we declared

in AER Advisors that "'[n]othing' in Van Dusen [or Ferens] compels

one federal court to apply another's interpretation of federal law

after a case's transfer." Id. at 290 (emphasis in original).19

In sum, Alexandre has supplied no novel arguments that

compel us to overturn our decision in AER Advisors. Adhering to

our precedent, we find that the district court did not err in

ruling that the decisional law of the First Circuit -- namely, the

19 For similar reasons, Alexandre's reliance on Viernow v. Euripides Development Corp.,

(10th Cir. 1998) -- a case we did not earlier consider in AER Advisors -- is unavailing, as it is a non-binding diversity case that concerned only state law claims. Nevertheless, Alexandre cites Viernow as part of her argument that

-- transfer to cure want of jurisdiction -- comprises the exclusive exception to Alexandre's asserted general principle that in any civil action, the transferee court must apply the transferor court's governing law following a § 1404(a) transfer. The problem for Alexandre is that Viernow does not state such a rule. And moreover, dicta in at least one other Tenth Circuit opinion indicates that our sister circuit, likewise, accepts the general approach that we adopted in AER Advisors for federal-question cases. See Olcott v. Del. Flood Co.,

(10th Cir. 1996) (agreeing with a Seventh Circuit case explaining "that a transferee court normally should use its own best judgment about the meaning of federal law when evaluating a federal claim") (quoting Eckstein v. Balcor Film Invs.,

(7th Cir. 1993)). In accordance with our aforementioned "law of the circuit" doctrine, Alexandre would have needed to furnish binding precedent to induce us to overturn AER Advisors. Here, Alexandre has supplied no caselaw -- neither persuasive, nor binding -- to support her construction of

as the exclusive basis for a transferee court to apply its own circuit's cases following a § 1404(a) transfer. As such, we could not overturn AER Advisors on these grounds.

- 20 - Wickman framework -- rather than the decisional law of the Eleventh

Circuit -- namely, the Horton presumption against suicide --

governs Alexandre's federal cause of action under ERISA.

B. Adverse Benefit Determination

Even though the district court held that courts within

the First Circuit are not obligated to apply the Eleventh Circuit's

presumption against suicide, it nevertheless explained in dicta

that even considering Horton's presumption, National Union's

denial of benefits was not arbitrary, capricious, or an abuse of

discretion given the "substantial evidence" indicating that

Marzuq's death was intentional. On appeal, Alexandre contests

this dicta, while National Union maintains that its decision to

deny accidental death benefits to Alexandre was the correct one.

Notably, Alexandre does not offer any argument that she can prevail

under the Wickman framework, even though she recognizes that

binding precedent likely requires us to adhere to Wickman instead

of Horton. Applying the Wickman framework, we affirm.

We review the district court's grant of summary judgment

de novo, Wright,

; however, because the AD&D Plan

at issue stated that National Union "has the right to interpret

the provisions of th[e] Plan, and [that] its decisions are

conclusive and binding," we must review National Union's adverse

benefit determination under the aforementioned arbitrary,

capricious, or abuse of discretion standard. Supra p. 11–12. On

- 21 - appeal, Alexandre challenges neither the district court's

conclusion that the AD&D Plan afforded National Union discretion

nor the corresponding consequence that courts must employ the

arbitrary, capricious, or abuse of discretion standard in

reviewing National Union's adverse benefit determination. Because

these issues are not before the court, we do not address them

further.

As such, although we look at the district court's

decision with fresh eyes, under the arbitrary, capricious, or abuse

of discretion standard, we will "uphold [National Union's] denial

of benefits if [its] decision was 'reasoned and supported by

substantial evidence,'" Stamp,

(quoting Wright,

). "Evidence is substantial if it is reasonably

sufficient to support a conclusion, and the existence of contrary

evidence does not, in itself, make the administrator's decision

arbitrary." Gannon v. Metro. Life Ins. Co.,

(1st Cir. 2004).

While Wickman is not cited by name, the analysis in

AIG's20 ERISA Appeal Determination submitted to Alexandre by letter

on May 4, 2020 conforms with Wickman's subjective/objective test

for assessing accidents. As set out above, supra p. 13, where the

term "accident" is otherwise undefined in an AD&D Policy, to find

20Recall that AIG serves as the Claims Administrator for National Union.

- 22 - that an insured's death is covered, "the beneficiary must

demonstrate that the insured [reasonably] did not expect an injury

similar in type or kind" to the one that occurred, Wightman, 453

F. Supp. 3d at 467 (emphasis added) (discussing Wickman,

and citing McGillivray,

); where the

insured's subjective expectations are unknowable, "an objective

analysis of the insured's expectations" is required, Wickman,

. Consistent with this directive, AIG reasoned that

"Marzuq's volitional and purposeful conduct of sprinting out of

the hotel room and hurtling himself over the 10th floor railing of

a high-rise hotel is dangerous conduct" and "no reasonable person

would believe that [doing as such] would not result in bodily harm

or death, even if Marzuq didn't intend to kill himself." Thus,

AIG -- and thereby, National Union -- concluded that Marzuq's death

did not result from an "accident" on the basis of the kind of

subjective/objective analysis required by Wickman.

Next, we ask whether substantial evidence in the record

supports AIG's application of the Wickman framework.

Inexplicably, Alexandre's counsel does not challenge AIG's finding

that Marzuq "hurtl[ed] himself over the 10th floor railing."

Although it appears that nothing more than speculation supports

this claim -- as the evidence establishes only that Marzuq ran out

of his hotel room and was then found one floor below the railing

-- "[w]e [do] not consider potentially applicable arguments that

- 23 - are not squarely presented in a party's appellate brief," Baybank-

Middlesex v. Ralar Distribs., Inc.,

, 1203 n.5 (1st

Cir. 1995) (citing United States v. Zannino,

(1st

Cir. 1990)); see also Sanchez v. United States,

, 48–

49, 54–55 (1st Cir. 2014) ("affirm[ing] the district court's

decision that it had no choice but to dismiss" where counsel failed

to timely lodge plaintiff's claims). On appeal, Alexandre's sole

contention -- and thus, the only argument that we address -- is

that substantial evidence does not support the denial of benefits

to Alexandre because AIG relied on reports produced by state

personnel who arrived at the hotel after Marzuq's death rather

than on the sworn declaration produced by Mujihad in September

2019.

We cannot conclude -- at least not on the basis argued

by Alexandre -- that National Union's adverse benefit

determination was arbitrary, capricious, or an abuse of

discretion. In rendering its decision, AIG considered the Fulton

County Medical Examiner's Investigative Summary -- which captured

the accounts of two percipient witnesses, including an otherwise

unaffiliated witness's statement that he heard Mujihad yelling

"no[,] no, keep still, don't do it" immediately prior to Marzuq's

fall -- as well as Marzuq's final Death Certificate listing his

cause of death as a suicide, among other documents. While

Alexandre questions whether opinions and reports produced by state

- 24 - personnel who arrived on the scene after Marzuq's death should be

considered "evidence," we agree with the district court that these

"contemporaneous and impartial" documents "authored by . . . state

official[s] in the exercise of [their] official duties" are

probative.

Moreover, we agree with the district court that National

Union reasonably engaged with Alexandre's contrary evidence --

namely, Mujihad's later sworn declaration -- and "reasonably

rejected [it] as less credible than the contemporaneous, neutral

evidence from the state." "[T]he existence of contrary evidence

does not, in itself, make the administrator's decision arbitrary."

Gannon,

. As such, we cannot -- on the basis raised

by Alexandre -- conclude that National Union's determination that

Marzuq's death was excluded from coverage because it was not

accidental was arbitrary, capricious, or an abuse of

discretion.21,22

21National Union also maintains that Alexandre's claim is further precluded from coverage by the AD&D Plan's intentional self- inflicted injury exclusion. Because Alexandre has not argued grounds sufficient to disturb National Union's conclusion that Marzuq's death was excluded from coverage because it was not accidental, we need not reach this additional contention. 22In her reply brief as well as in a Federal Rule of Appellate Procedure 28(j) letter, Alexandre submitted the cases Krantz v. John Hancock Mutual Life Insurance Co.,

(Mass. 1957) and Bohaker v. Travelers' Insurance Co.,

(Mass. 1913), to argue for the first time that Massachusetts also employs a presumption against suicide. As an initial matter, "[b]lack-letter law holds that, in the absence of exceptional circumstances, arguments presented for

- 25 - the first time in an appellant's reply brief are deemed waived." Álamo-Hornedo v. Puig,

(1st Cir. 2014). The same is true for Rule 28(j) letters. See, e.g., Rosa-Rivera v. Dorado Health, Inc.,

(1st Cir. 2015) ("Not only is it improper to advance new arguments in a 28(j) letter, but it is far too late in the game." (internal citation omitted)). As Alexandre does not advance any "exceptional circumstances" to justify the delay, we find her argument waived. But waiver aside, Alexandre's argument is also incomplete because each of her submitted cases predates ERISA. As such, even if Massachusetts state law has embraced a presumption against suicide -- a point on which we take no position at this time -- Alexandre has not argued either (1) that any such presumption "regulates insurance" so as to fall within ERISA's Savings Clause, see UNUM Life Ins. Co. of Am. v. Ward,

, 367–68 (1999); or (2) that we have incorporated that presumption into the First Circuit's federal common law on ERISA, see Sampson, 863 F.2d at 109–10 (rejecting the argument that "the substantive law of Massachusetts -- rather than the body of federal common law that has grown up around ERISA -- should govern the interpretation of the . . . policy" at issue). In fact, Alexandre appears to concede both of these points, as her reply brief states: Had Ms. Alexandre, without the involvement of her employer, purchased an accidental death benefits insurance policy on her husband's life from [National Union], she would have gone into battle with [National Union] armed with the presumption against her husband's suicide. However, because her employer had procured the [National Union] accidental death benefits policy, . . . Ms. Alexandre went into battle with [National Union] unarmed with the presumption against her husband's suicide. (emphasis in original). In essence, Alexandre is saying that if this were not an ERISA case, she would get the benefit of the presumption against suicide under Massachusetts state law; but because this is an ERISA case -- and thus ERISA's preemption provisions apply -- she does not get the benefit of such a state- law presumption. While we take no view on whether Alexandre is correct that federal common law, not state law, applies in this circumstance, we conclude that Alexandre's statement is, at the very least, a concession that we should apply federal common law, not state law, to her case.

- 26 - III. Conclusion

Though we decline to disturb National Union's adverse

benefit determination, our decision is not intended to lessen the

tragedy of Marzuq's death or to minimize the loss of those who

loved him. We acknowledge that Marzuq's family and friends may

still have questions about the circumstances attending his end of

life. Our determination simply means that, in light of the

arguments raised on appeal and the standard that governs our

review, we cannot conclude that National Union's denial of AD&D

benefits was arbitrary, capricious, or an abuse of discretion.

For the reasons stated above, the judgment in favor of

National Union is affirmed.

- 27 -