IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20639

AIG LIFE INSURANCE COMPANY,

Plaintiff-Appellee,

versus

BERTHA JACKSON BLACKSHEAR; ET AL,

Defendants,

TYLER EMMANUEL BLACKSHEAR; TAYLOR JASMINE BLACKSHEAR,

Defendants-Cross-Claimants-Appellants.

----------------- EDDIE EMANUEL, JR.; CORY TARELL DAVIS,

Movants-Appellants,

versus

BERTHA JACKSON BLACKSHEAR,

Defendant-Cross-Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas H-96-CV-2705 June 13, 2002

Before GARWOOD, WIENER, and CLEMENT,1 Circuit Judges.

GARWOOD, Circuit Judge:2

Tyler Emmanuel Blackshear, Taylor Jasmine Blackshear, Eddie

Emmanuel Blackshear Jr. and Corey Tarell Davis appeal the district

court's grant of summary judgment in favor of defendant-appellee

AIG Insurance Company on their suit for the proceeds of their

father Eddie Blackshear Sr.'s accidental death and dismemberment

policy. They also appeal the district court's distribution of the

impleaded proceeds of Tamiki Blackshear's accidental death and

dismemberment policy. We affirm.

Facts and Proceedings Below

Eddie Blackshear Sr. (Eddie) was employed by Andrews

Transport, Inc. (Andrews) as a gasoline truck driver. Andrews

offered its employees a “cafeteria plan” of insurance coverage,

including medical, dental, life and disability insurance, and a

supplemental accidental death and dismemberment (AD&D) policy

underwritten by AIG Insurance Company (AIG). Eddie purchased AD&D

coverage for himself and his wife Tamiki.

Eddie and Tamiki had a stormy marriage which began to fall

1 Judge Edith Brown Clement participated by designation in the oral argument of this case as a United States District Judge for the Eastern District of Louisiana. Since that time she has been appointed as a Fifth Circuit Judge. 2 Pursuant to 5TH CIR. R.47.5 t he Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 apart after Tamiki moved out of their Conroe, Texas home in May

1995. On June 2, 1995, Eddie found Tamiki at a friend's house and

assaulted her out of jealousy, biting her leg in the process. The

next morning, Eddie visited his mother, where he reviewed his

insurance documents. He also ransacked his sister's house, took

her pistol, and went to the Shell gas station where Tamiki worked.

Over the course of several visits that day, Eddie carried on a

conversation with Tamiki that her co-worker Cricket Mann described

as increasingly intense and argumentative. When Tamiki

unequivocally told Eddie their marriage was over, he pulled out the

pistol and pointed it at Tamiki. He then ordered Mann out of the

store, saying “this isn't going to be pretty,” and dragged Tamiki

by the neck into a back storage room. Eddie shot Tamiki twice in

the head, paused, and then shot himself in the temple. Police

found a suicide note in Eddie's possession, which he had apparently

written that morning.

Eddie's suicide note reflects the desire to punish Tamiki for

“playing games,” balanced with a fear of hell and an apology to

Jesus for his lost faith. In despair that he had lost his family,

Eddie wrote that he chose eternity in hell so that he could punish

Tamiki. He concluded by bitterly and cruelly criticizing Tamiki's

parents, Brenda and Henry Victoria.

The Victorias filed a Notice of Claim on Tamiki's policy and

Eddie's mother Bertha Blackshear filed on Eddie's AD&D policy. AIG

3 conceded they owed the $120,000 proceeds of the policy on Tamiki's

life, but were concerned that the proceeds belonged to Eddie and

Tamiki's children, Tyler and Taylor Blackshear, minors who had not

themselves filed a Notice of Claim. AIG therefore interpleaded the

funds representing the proceeds payable under the policy on

Tamiki’s life in the district court and named the Victorias, Bertha

Blackshear, Tyler and Taylor as defendants. In the complaint, AIG

also denied payment of Bertha Blackshear's claim on the grounds

that Eddie's death fell within the suicide exclusion of the policy

on his life. Brenda Victoria responded with a cross-claim against

Bertha Blackshear, arguing, as next friend of the children, that

they should receive the proceeds of Tamiki's policy.

A state court appointed Brenda Victoria as guardian of the

children.3 She thereafter withdrew her own claim to Tamiki's

policy and moved for summary judgment on Tyler and Taylor's behalf.

The district court appointed Ursula Hall as attorney ad litem for

Tyler and Taylor, and those children joined in the summary judgment

motion. Tyler and Taylor cross-claimed for the proceeds of

Tamiki's policy against Bertha Blackshear, now the executor of

Eddie's estate. They also counterclaimed against AIG for failing

to pay Eddie's policy, arguing it was payable because Eddie was

insane at the time he took his life. Added to their demand for the

proceeds of Eddie’s policy were various state law counterclaims

3 At about this time, Henry Victoria passed away.

4 related to bad faith and failure to investigate.

AIG then moved for summary judgment on Eddie's policy, arguing

that his death was excluded from coverage by the policy's suicide

clause. On August 6, 1998, the district court held that the AD&D

policy only excluded “sane” suicide and therefore summary judgment

was improper because issues of fact remained regarding Eddie's

mental state. The court then took under advisement the summary

judgment on Tamiki's policy and ordered AIG to implead Eddie's

other two children, Eddie Blackshear Jr. and Corey Davis (each a

minor). Because Bertha Blackshear declined to represent Eddie

Jr.'s and Corey's interest, the court appointed Ursula Hall as

attorney ad litem for them as well.

On March 15, 1999, AIG again moved for summary judgment and

proffered expert testimony establishing the cause of Eddie's death

and his mental state. AIG also argued that the policies were part

of an ERISA plan and thus ERISA preempted any state-law

counterclaims of the children. On June 30, 1999, the district

court granted AIG's summary judgment in part, holding that the AD&D

policy was an ERISA plan that preempted the state law

counterclaims. The district court denied the motion, however, so

far as it addressed Eddie's mental state.

After hearing evidence at a bench trial beginning July 7,

1999, the district court finally granted AIG's second summary

judgment in full. The court held that even though Eddie suffered

5 from mental illness, his impulses were not irresistible. Instead,

the district court held, Eddie intentionally and methodically

committed suicide with full understanding of the moral

consequences. The district court then disbursed the proceeds of

Tamiki's policy in equal portions to her children Tyler and Taylor,

implicitly rejecting the attorney ad litem's argument that Corey

and Eddie Jr. were entitled to a share of the proceeds of Tamiki’s

policy under the Texas Simultaneous Death Act, TEX. PROB. CODE ANN.

§ 42. All four minor children have appealed.

Discussion

We review a grant of summary judgment de novo, applying the

same standards as the district court, while viewing all disputed

facts and reasonable inferences “in the light most favorable to the

nonmoving party.” Duffy v. Leading Edge Prods.,

(5th Cir. 1995). The appellants allege three points of error.

First, they argue that the AD&D policy was not an ERISA “plan” and

thus their state law claims should not have been preempted.

Second, they argue that Eddie was insane at the time he took his

life and thus they are entitled to the proceeds of his policy.

Finally, they argue that the district court improperly distributed

the proceeds of Tamiki's policy. We shall address each argument in

turn.

I. The Insurance Policy Was an ERISA Plan

This court explained the process for determining whether an

6 employee benefit is an ERISA-covered “employee welfare benefit

plan” in Hansen v. Continental Insurance Company,

(5th

Cir. 1991). In Hansen, a worker had purchased an AD&D policy for

himself and his family through his employer, Fairfield Industries.

. Fairfield distributed printed materials with the

Fairfield name and logo on them, and the materials contained a

discussion of risk and a suggestion that workers consider accident

insurance.

. Moreover, Fairfield both collected the

premiums and employed a full-time benefits administrator.

When his wife died, Hansen filed a claim for benefits under the

policy. Continental Insurance disputed the amount due under the

policy, and Hansen sued under various state law theories.

This court affirmed the district court's holding that the plan was

an ERISA “employee welfare benefit plan” and thus his state law

claims were preempted.

. The court first considered

whether the policy was excluded from ERISA coverage by the “safe

harbor” provision of 29 C.F.R. 2510.3-1(j), holding that

Fairfield's actions had sufficiently endorsed the plan to make that

regulation inapplicable.

. The court then asked

whether the policy was a “plan,” finding that it was.

.

The court finally asked whether the plan was established by the

employer with the purpose of benefitting the employees, finding

that Fairfield's purpose was exactly that.

.

a. The AD&D Insurance Is Not Within The “Safe Harbor.”

7 First, we examine the “safe harbor” provision that excludes

employee benefits from ERISA coverage when certain conditions are

met. The parties agree that the AD&D insurance meets three of the

four conditions, but dispute the application of the third listed

requirement:

“(3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer.”

(j)(3).

As was true in Hansen, Andrews's actions exceeded the

restraint described in this provision. The printed materials

provided to the employees carried the Andrews Transport name and do

not clearly explain that the coverage is being offered by a third

party, just as in Hansen. On the contrary, the handbook

distributed by Andrews is entitled “Personal Accident Insurance

Plan of Andrews Transport, underwritten by AIG Life Insurance

Company.” Andrews is listed as the plan administrator, whose

powers include the “authority to control and manage the operation

and administration of the plan.” These descriptions suggest a

degree of employer control and endorsement inconsistent with the

regulation above. Appellants claim the handbook doesn't describe

the AD&D policy, but the handbook only describes accident insurance

and Andrews offers only one accident policy. Appellant also

disputes the authorship of the handbook, but we find authorship

less relevant than the fact that Andrews distributed these

8 materials bearing its name to its employees and thereby endorsed

their contents.

Moreover, the booklet Andrews distributed lists accident

statistics and urges the workers to give the plan careful

consideration, a point the Hansen court held to be employer

endorsement. Finally, as in Hansen, Andrews did not avoid

administration of the plan but instead employed a full-time

benefits administrator who collected claim forms for submission to

AIG and explained the plan to employees. For all these reasons,

Andrews's actions exceeded the minimal “sole functions” enumerated

above and amounted to “endorsing” the policy. Thus, the AD&D

policy cannot be excluded from ERISA protection under

(j)(3).

b. The AD&D Insurance Was a “Plan.”

“Before a court can ask whether a plan is an ERISA plan, it

must first satisfy itself that there is in fact a 'plan' at all.”

Hansen,

. We must “determine whether from the

surrounding circumstances a reasonable person could ascertain the

intended benefits, beneficiaries, source of financing, and

procedures for receiving benefits.”

(citing Donovan v.

Dillingham,

(11th Cir. 1982)(en banc)). The

Andrews AD&D insurance was a “plan.” A reasonable person could

ascertain that the insurance was a benefit for the employees of

Andrews and their families, that premiums were paid by the

9 employees, and that benefits would be received by submitting claims

to Andrews's full-time benefits administrator so they could be

forwarded to AIG.

c. The AD&D Plan Was an ERISA Plan.

In examining whether a given insurance program was an ERISA

plan, Hansen applied two tests. First, the court should “focus on

the employer and its involvement with the administration of the

plan,” because “if an employer does no more than purchase insurance

for her employees, and has no further involvement with the

collection of premiums, administration of the policy, or submission

of claims, she has not established an ERISA plan.” Hansen,

(some punctuation and citations omitted). As in

Hansen, Andrews provided a full-time benefits administrator who

collected premiums and accepted claim forms. The first test is

therefore met.

“In addition to some meaningful degree of participation by the

employer in the creation or administration of the plan, the statute

requires that the employer have had a purpose to provide health

insurance, accident insurance, or other specified types of benefits

to its employees.”

(citing

(1)). The second

test for ERISA plan status is therefore to examine whether the

employer had an “intent to provide its employees with a welfare

benefit program through the purchase and maintenance” of the

policy.

(quoting Memorial Hospital System v. Northbrook Life

10 Ins. Co.,

(5th Cir. 1990)). Andrews demonstrated

its intent to provide a welfare benefit program. It provided a

benefit plan to its employees that listed the AD&D insurance as a

supplement, and distributed materials that included the Andrews

name and urged employees to carefully consider the plan as a

“valuable supplement to your existing coverages.” Just as in

Hansen, Andrews intended to provide the supplemental accident

insurance as a benefit to its employees.

The AD&D insurance offered by Andrews was an ERISA plan, and

thus any state law counterclaims were preempted. See

.

II. Eddie Blackshear Sr.'s Sanity

The parties agree that because the AD&D policy merely excludes

the ambiguous term “suicide” and not “suicide, sane or insane,”

case law requires AIG to pay the policy if Eddie was insane when he

took his own life. The standard for “insane suicide” was stated

130 years ago in Mutual Life Insurance Company v. Terry,

(1872):

“We hold the rule on the question before us to be this: If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general

11 nature, consequences, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.”

The burden of establishing such insanity falls upon the

beneficiaries. Casey v. Uddeholm Corp.,

(7th

Cir. 1994). This court reviews the district court's grant of

summary judgment de novo, as explained above.4

a. Knowing and Able to Understand.

We begin by applying the first part of the Terry test and

asking whether Eddie took action while both “knowing and intending

4 This court normally reviews the fact determinations of the plan administrator for abuse of discretion, and such review is usually limited to the administrative record. Schadler v. Anthem Life Ins. Co.,

, 394-95 & n.7 (5th Cir. 1998). As to whether the plan administrator correctly interpreted the terms of the plan, if the plan vests the administrator with the power to construe it, we review that construction for abuse of discretion.

. Otherwise, review thereof is de novo.

From their first claim determination through their arguments in the district court, AIG relied on an issue of plan interpretation by insisting that there was no exception for insanity in the policy’s suicide clause. The district court rejected this argument, and AIG has conceded the point before this court. We turn to the question of whether Eddie Sr. was insane. Because AIG denied the claim based on its interpretation of the policy language, however, this question was apparently neither adequately presented to nor ruled on by the plan administrator. Where the parties did not have an opportunity to present the relevant facts to the plan administrator, we are not limited to the administrative record on review. See Schadler,

; Wildbur v. ARCO Chemical Co.,

(5th Cir. 1992). While in Schadler we remanded to the plan administrator, in that case, unlike this one, the plan gave the administrator discretion to construe its terms. In any event, none of the parties request remand to the plan administrator, and AIG has conceded that de novo review of the district court’s judgment is appropriate.

12 that his death shall be the result of his act” and “able to

understand the moral character, the general nature, consequences,

and effect of the act.” Eddie's suicide note demonstrates that he

met that standard. Through that writing, it is clear that Eddie

did not suffer from delusions or misapprehensions regarding the

act; he was plainly aware that his action would result in his

death. Moreover, there is no evidence or suggestion of physical

impairment or drug or alcohol use that could have prevented Eddie

from truly understanding what he was doing. Eddie's note also

exhibits an understanding of the moral character of suicide, along

with its general nature and consequences, because he discusses at

some length the religious condemnation facing him. Yet, despite

his firm belief that eternal punishment awaited him, he chose to

trade damnation for the opportunity to kill his wife without going

to jail. Eddie also understood that his act would leave his

children as orphans, but expressed some happiness that the very

sight of his children would bring sadness to his detested in-laws.

The note shows that Eddie fully met the first Terry test.

Appellants argue that Eddie failed to appreciate that his goal

of reuniting his family would be forever stymied by his acts, and

this lack of appreciation means he failed to meet this test. We

disagree. Eddie had no hope of reuniting his family; in his

suicide note he expresses those desires but then laments that

“that's all over now.” His actions on June 3, 1995 show restraint

13 until Tamiki unequivocally told him that their marriage was over.

Eddie waited to act until there was no hope of achieving his main

goal, and thus nothing indicates that he failed to appreciate the

consequences of his actions. Appellants also urge a “moral

insanity” test based in John Stuart Mill's utilitarian

philosophies, but that simply is without any support in the law (or

in psychiatry).

b. Irresistible Impulse.

The second test in Terry asks whether the deceased was

“impelled thereto by an insane impulse, which he had not the power

to resist.” The Supreme Court said that a substantially similar

definition was: “able to distinguish between right and wrong, and

know that the act is wrong, yet his will (by which I mean the

governing power of his mind) has been, otherwise than voluntarily,

so completely destroyed that his actions are not subject to it, but

are beyond his control.” Ritter v. Mutual Life Insurance Company

of New York,

(1898) (quoting Davis v. United

States,

(1897)). The appellants commend the

definition in Reinking v. Philadelphia American Life Insurance

Company,

(4th Cir. 1990), asking whether the

person “lacked the ability to make a meaningful choice between

committing and not committing suicide” because he lacked “the

ability to assess the merits of the goal to be achieved.”

Under all of these tests, Eddie demonstrated that he was not

14 subject to an irresistible impulse. Instead, his actions on June

3rd were methodical and calculated. Eddie wrote the suicide note

and checked his insurance policy that morning, thus indicating that

he was already planning his own death. Nevertheless, his actions

with Tamiki were careful. Over the course of that long and often-

interrupted conversation he attempted one last time to reunite with

Tamiki, and he acted only when she unequivocally told him that

their marriage was over. Even then, Eddie took the time to order

the cashier out of the store and took Tamiki into a back room so

that he would not be disturbed. Eddie was impulsive, but on that

day he repeatedly demonstrated his ability to resist those

impulses. Moreover, Eddie's calculated choice to trade damnation

for revenge without imprisonment shows that he could assess the

merits of his goal. There is no evidence sufficient to sustain a

finding that Eddie’s actions were the result of an inability to

control himself.

c. Expert Evidence.

The affidavits of experienced psychiatrists Drs. Coons and

Reid, who reviewed all the relevant material, clearly reflect that

Eddie was sane, knew and intended that his death would result from

his act, was able to understand the moral character, nature and

consequences of his action, and was not under an irresistible

impulse. These affidavits further reflect that nothing in the

reports of Dr. Bacon or Dr. Battin, relied on by appellants,

15 reflects otherwise, that Dr. Battin, a professor of philosophy

without medical, psychiatric or relevant psychological education,

was not qualified to render a psychiatric or psychological opinion

as to Eddie’s mental capacity when he committed suicide, and that

the concept of “morally insane” urged by appellants and Dr. Battin

“is not a recognized concept or diagnosis in the

psychological/psychiatric community, nor has it been for over 150

years.”

Appellants proffered evidence from Dr. Margaret P. Battin, Dr.

Roger E. Foxall (a psychologist), and Dr. Robert J. Bacon (a

psychiatrist). Though their testimony related to Eddie's mental

state, we agree with the district court that it failed to raise an

issue of material fact regarding Eddie's ability to resist his

impulses or to understand what he was doing and the moral

character, nature and consequences of his actions at the time he

acted.

We therefore hold that under the undisputed evidence Eddie met

the Terry definition of sanity at the time he took his life and

that there is no evidence sufficient to sustain a finding that he

did not.

III. Distribution of the Impleaded Funds

The final issue on appeal regards the proper distribution of

the proceeds of Tamiki's AD&D policy, which AIG impleaded into the

registry of the court. The district court ordered attorney's fees

16 paid from the funds and then distributed the remainder in equal

portions to Tyler and Taylor Blackshear. Appellants argue that the

proper distribution would instead be one-eighth to Corey Davis,

one-eighth to Eddie Blackshear Jr., three-eighths to Tyler

Blackshear, and three-eighths to Taylor Blackshear. They arrive at

this result by urging the effect of the Texas Simultaneous Death

Act, TEX. PROB. CODE ANN. § 47(b), on insurance policies held as

community property, claiming that one half of the proceeds must be

distributed among Tamiki's two children and the other half

distributed among all four of Eddie's children.

We disagree. Because Eddie murdered Tamiki, TEX. INS. CODE ANN.

art. 21.215 applies. That statute says:

“The interest of a beneficiary in a life insurance policy or contract heretofore or hereafter issued shall be forfeited when the beneficiary is the principal or an accomplice in willfully, bringing about the death of the insured. When such is the case, a contingent beneficiary named by the insured in the policy shall receive the insurance unless that contingent beneficiary was also a principal or an accomplice in willfully bringing about the death of the insured. If no contingent beneficiary is named by the insured in the policy or if all contingent beneficiaries named by the insured in the policy were principals or accomplices in willfully, bringing about the death of the insured, the nearest relative of the insured shall receive, said insurance.” TEX. INS. CODE ANN. art. 21.21.

To the extent that Eddie would be entitled to any interest in the

funds as a beneficiary or through the Simultaneous Death Act, art.

21.21 nevertheless distributes those funds via constructive trust

5 The statute has been renumbered as TEX. INS. CODE § 1103.151, effective June 1, 2003.

17 directly to “the nearest relative of the insured.” See Bounds v.

Caudle,

(Tex. 1977). The statute transfers the

funds without further reference to the policy and the funds never

enter the possession of the killer. Crawford v. Coleman,

(Tex. 1987); Farmers & Merchants Bank of Shamrock v.

Helton,

(Tex.Civ.App.—Amarillo 1954, writ

ref'd n.r.e.). The entire amount therefore goes directly to

Tamiki's “nearest relatives,” Tyler and Taylor. See TEX. PROB. CODE

ANN. § 38(a) (declaring descendants to be first to receive in

intestacy). We therefore affirm the distribution of the funds

ordered by the district court.6

Conclusion

The evidence shows Eddie Blackshear Sr. was sane when he

committed suicide and there is no sufficient evidence to support a

finding that he was then insane, an issue on which appellants would

bear the burden of proof at trial. AIG therefore acted properly by

denying payment of his AD&D policy. Moreover, the AD&D policy

offered by Andrews was an ERISA plan and thus any state law action

based on that denial is preempted by ERISA. Finally, Tyler and

6 The attorney ad litem argued that Corey Davis and Eddie Blackshear Jr. were entitled to a portion of the proceeds, yet purported to also represent Tyler’s and Taylor's interests. Because we affirm the distribution to Tyler and Taylor, and because the interests of Corey Davis and Eddie Blackshear, Jr. have been vigorously and thoroughly defended throughout, we need not reach the conflict-of-interest problem that would otherwise have presented itself.

18 Taylor, the two children of Tamiki Blackshear, were entitled to the

entire proceeds of her life insurance policy under the provisions

of the Texas Insurance Code preventing slayers from profiting from

their actions. The record does not present a genuine issue of

material fact as to these matters. Accordingly, the orders of the

district court granting summary judgment and distributing the

impleaded funds are

AFFIRMED.

19