472 F.Supp. 1061 (1979)
William J. WARREN
v.
Henry M. HARVEY, Acting Superintendent, Whiting Forensic Institute, Middletown, Connecticut.
Civ. No. H-77-206.
United States District Court, D. Connecticut.
June 15, 1979.
*1062 *1063 Mary F. Keller, Yale Legal Services Organization, New Haven, Conn., for petitioner.
Ernest Diette, Jr., Asst. State's Atty., New Haven, Conn., for respondent.

MEMORANDUM OF DECISION
BLUMENFELD, District Judge.
Petitioner, William J. Warren, brings this action for a writ of habeas corpus challenging the constitutionality of his confinement at Whiting Forensic Institute, a state institution for treatment of committed mentally ill persons. His present involuntary confinement there is based on Conn.Gen.Stat. § 53a-47, which authorizes the confinement of an individual acquitted on grounds of insanity where that individual is "mentally ill to the extent that his release would constitute a danger to himself or others." The petitioner contends that by ordering that he be kept confined, the state has violated his constitutional right embodied in section I of the fourteenth amendment, which provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law."

I. FACTS

William J. Warren was arrested for murder in the first degree on July 5, 1971. He was confined at Connecticut Valley Hospital (CVH) on September 16, 1971, and was transferred to Whiting Forensic Institute (WFI) on September 29, where he remained for two years. In September 1973, petitioner was declared competent to stand trial and returned to jail to await trial. On February 27, 1974, petitioner was found not guilty by reason of insanity.[1] Pursuant to Conn.Gen.Stat. § 53a-47(a), he was then ordered confined to CVH for an examination to ascertain whether he was presently mentally ill to such extent that his release would constitute a danger to himself or others.[2] Under that statute, a person acquitted *1064 on grounds of mental disease or defect is temporarily confined in a state hospital pending an examination of his mental condition. Upon receipt of the reports of the examining doctors, the state court must schedule a hearing. If the court determines at the hearing that the preponderance of the evidence establishes that such person is "mentally ill to the extent that his release would constitute a danger to himself or others, the court shall confine such person in a suitable hospital or other treatment facility." Conn.Gen.Stat. § 53a-47(a)(4).
In the instant case the examining psychiatrist, Dr. Patrick Lee, filed a report pursuant to Conn.Gen.Stat. § 53a-47(a) on May 10, 1974. In his report, Dr. Lee stated that the petitioner exhibited no evidence of overt psychosis, that petitioner had been receiving tranquilizing medication since the time of his hospitalization, and that petitioner had presented no behavioral problems for the hospital. Petitioner's Exhibit A at 2a-3a (Appendix to Brief For The Defendant, State v. Warren, No. 7669, Conn. Supreme Court, Jan. Term 1975). Dr. Lee also stated that petitioner "would benefit from a further period of hospitalization." Id. at 3a.
At the required state Superior Court hearing on May 24, 1974, Dr. Lee testified that the petitioner was receiving Mellaril, an oral tranquilizer which former hospital patients commonly administer to themselves on an outpatient basis. Petitioner's Exh. A at 9a (transcript of May 24, 1974 hearing). He further testified that as long as petitioner was receiving this medication, petitioner was not a danger to himself or others in or outside the hospital. Id.
After the hearing, the state court concluded that "[t]here is a strong possibility that the defendant, if released, might not continue use of the anti-psychotic medication without which he is a danger to himself or others," and "[t]here is no certain means of controlling the taking of his medication once he is released from a mental institution." Petitioner's Exh. C at 11 (State v. Warren, No. 7699, Superior Court, New Haven County, May 31, 1974).[3] The court then ruled that petitioner was mentally ill to the extent that his release would constitute a danger to himself or others and ordered petitioner confined to CVH for a term not to exceed 25 years, the maximum term allowed by the statute, Conn.Gen.Stat. § 53a-47(b). The state court concluded that "[t]he salutary purposes of [Conn.Gen. Stat.] § 53a-47 would be defeated if under the circumstances of this case this defendant could walk out free on a promise to take his medication." Id. at 11.
Petitioner appealed this ruling to the Connecticut Supreme Court. He argued that the state had failed to produce any competent evidence which could form the basis for the lower court's findings and conclusions. Petitioner argued that in the absence of evidence of present dangerousness due to mental illness, his further confinement *1065 would violate the terms of Conn. Gen.Stat. § 53a-47 and his constitutional right to due process of law.
While petitioner's appeal of the first hearing was pending before the Connecticut Supreme Court, a second hearing before the state Superior Court was held on December 10, 1974 pursuant to Conn.Gen.Stat. § 53a-47(c).[4] That section of the statute provides that where, as here, the semiannual written report required of the superintendent of the hospital concludes that the confined person is no longer mentally ill to the extent that his release would constitute a danger to himself or others, the court shall order the person released, unless the state at a hearing "establishes by a preponderance of the evidence that such person is, at the time of the hearing, mentally ill to the extent that his release would constitute a danger to himself or others." Conn.Gen.Stat. § 53a-47(c).[5] Prior to this hearing, Doctors Lee and Voelkening of CVH filed separate reports with the state court stating that petitioner was taking tranquilizing medication and exhibited no symptoms of overt psychosis or thought disorder. Petitioner's Exh. A at 17a-22a. The reports stated that petitioner had been employed in the hospital print shop since his admission and had continued to abide by all hospital regulations. Id. In their respective reports and in their testimony at the hearing before the court, both doctors stated that if petitioner continued to take his medication and received outpatient psychiatric care, his release would not constitute a danger to himself or others. Petitioner's Exh. B at 19a, 29a, 31a, 48a-50a (transcript of Dec. 10, 1974 hearing).[6]
*1066 On December 18, 1974, the Superior Court issued its decision and ordered the petitioner returned to confinement at CVH for not in excess of the balance of 25 years. The state court concluded that where the symptoms of defendant's mental illness were "controlled" by the use of medication but where there was "no way to insure that the defendant would continue to take medication if he were released," petitioner's "release would constitute a danger to himself or others." Petitioner's Exh. E at 30 (State v. Warren, No. 17846, Superior Court, New Haven County, May 19, 1975).
In 1975, the Connecticut Supreme Court issued its decision on petitioner's appeal of the first state court decision. The court ruled that there was sufficient evidentiary support for the lower court's findings and conclusions and affirmed the lower court decision that Conn.Gen.Stat. § 53a-47 required petitioner's continued confinement at CVH. State v. Warren, 169 Conn. 207, 363 A.2d 91 (1975).
Following that ruling on petitioner's appeal, a third set of medical reports was filed with the Superior Court, and a third hearing was held in October of 1975. Reports were filed by Dr. Arafeh (Superintendent of Connecticut Valley Hospital), Dr. Lee, Dr. Voelkening, and Dr. Sheard (Associate Professor of Psychiatry at Yale University). Petitioner's Exhs. J, K, L, M. These reports all stated that petitioner was free from overt psychosis and that his mental illness was in remission. The reports attributed petitioner's improved mental condition to the fact that he had responded well to the structured hospital environment and to the fact that he was being successfully treated with Prolixin, a tranquilizer administered by injection every two weeks. See id. Three of the four reports (those of Doctors Lee, Voelkening, and Sheard, Petitioner's Exhs. K, L, and M) concluded that petitioner was not mentally ill to the extent that his release would constitute a danger to himself or others,[7] and the fourth (Dr. Arafeh, Petitioner's Exh. J) concluded that while petitioner did not "appear to be dangerous to himself or others" while at the hospital, "it is difficult to predict future potential dangerousness." After the hearing, the Superior Court ordered petitioner returned to CVH. Petitioner's Exh. I (State v. Warren, No. 17846, Superior Court, New Haven County, Nov. 4, 1975). In reaching its conclusion, the court held that the possibility that petitioner might at some point discontinue taking his medication gave rise to a possibility of dangerousness sufficient for purposes of Conn.Gen. Stat. § 53a-47 to justify petitioner's continued confinement at CVH. See Petitioner's Exh. I at 4-7.[8] In December of 1975, petitioner *1067 was transferred from CVH to Whiting Forensic Institute, where he is presently confined.
Petitioner argues that his present confinement is in violation of his due process rights because the standard of proof of dangerousness adopted by the state courts at each of the above three hearingsat the initial hearing on May 24, 1974, at the second hearing on December 10, 1974, and at the third hearing in October 1975impermissibly imposed an impossible burden upon himself or any other person seeking release after an insanity acquittal where that person's underlying mental illness is in remission and is controlled by medication. Petitioner argues that the state courts determined that he was dangerous because he could not provide a guarantee of his future mental condition and behavior, and that this determination of dangerousness deprived petitioner of his liberty without due process of law.

II. EXHAUSTION OF STATE REMEDIES

The respondent argues that petitioner has not presented his federal constitutional claims to the Connecticut state courts and therefore has failed to exhaust his state remedies as required by 28 U.S.C. § 2254(b) and (c). On reviewing the record of this case, I find to the contrary: the highest state court has had an opportunity to pass upon petitioner's constitutional claims.
Petitioner's appeal to the Connecticut Supreme Court, following the Superior Court's decision denying him release after the May 1974 hearing, raised the claim that the Superior Court's findings and conclusions were wholly unsupported by the evidence and contrary to law. See Petitioner's Exh. C at 13 (Assignments of Error, Nos. 3-5). The "law" referred to was the due process clause of the fourteenth amendment to the United States Constitution. See Petitioner's Exh. A at 6-9 (Brief for the Defendant, State v. Warren, No. 7669, Conn.Supreme Ct., Jan. Term 1975).
Though the due process claims petitioner raises in this court are more elaborately expressed than those presented to the Connecticut Supreme Court, that court was nonetheless presented with an opportunity to rule that the Superior Court's application of Conn.Gen.Stat. § 53a-47 violated petitioner's due process rights. The Connecticut Supreme Court instead held:
"From the facts found by the [lower] court . . . , especially the facts concerning the defendant's tendency to violence, it is clear that the court's conclusions are amply supported and do not violate law, logic, or reason."
State v. Warren, 169 Conn. 207, 214, 363 A.2d 91, 95 (1975). That holding amounts to a rejection of all of petitioner's claims, including the due process claim he now raises before this court. All that 28 U.S.C. § 2254(b) requires is that the highest state court be given an opportunity to pass upon petitioner's constitutional claim.[9]Fay v. Noia, 372 U.S. 391, 437-38, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); see Galtieri v. Wainwright, 582 F.2d 348, 353 (5th Cir. 1978); United States ex rel. DeNegris v. Menser, 247 F.Supp. 826, 829 (D.Conn.1965), aff'd, 360 F.2d 199 (2d Cir. 1966).
The fact that petitioner only appealed to the Connecticut Supreme Court the decision of the state Superior Court after his first commitment hearing does not preclude his challenge in this court of the state court decisions following the second and third commitment hearings.[10] Under Conn.Gen. *1068 Stat. § 53a-47(c), "The confined person shall be released unless the state establishes by a preponderance of the evidence that such person is, at the time of the hearing, mentally ill to the extent that his release would constitute a danger to himself or others." Thus the issue is the same at each hearing, and it is clear that the facts underlying petitioner's constitutional claim with regard to each hearing are substantially the same. Since the Connecticut Supreme Court has had the opportunity to rule on the claim in the appeal of the first hearing, to require petitioner to relitigate on appeal the same claim after each periodic hearing would not serve the purposes of the exhaustion requirement. See Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Brown v. Allen, 344 U.S. 443, 449 n. 3, 73 S.Ct. 397, 97 L.Ed. 469 (1953). Thus I conclude that the exhaustion requirement has been satisfied here and that petitioner can raise his constitutional claim in this proceeding.[11]

III. DUE PROCESS REQUIREMENTS

Once petitioner was acquitted, even by reason of his insanity, his criminal responsibility for his past acts was at an end. To justify restricting his liberty thereafter depended upon whether he could be involuntarily committed to a state mental hospital. Connecticut recognizes this distinction between incarceration of convicted criminals and involuntary commitment of insanity acquittees. Compare Conn.Gen.Stat. § 53a-28 with Conn.Gen.Stat. § 53a-47.
It has been established that involuntary commitment of the mentally ill is a "massive curtailment of liberty." Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). Furthermore,
"There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law. Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 1211, 18 L.Ed.2d 326 (1967). Cf. In re Gault, 387 U.S. 1, 12-13, 87 S.Ct. 1428, 1435-1436, 18 L.Ed.2d 527 (1967). Commitment must be justified on the basis of a legitimate state interest, and the reasons for committing a particular individual must be established in an appropriate proceeding. Equally important, confinement must cease when those reasons no longer exist."
O'Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 2496, 45 L.Ed.2d 396 (1975) (Burger, C. J., concurring). In O'Connor v. Donaldson, Justice Stewart's opinion for the Court held that even if the individual's "original confinement was founded upon a constitutionally adequate basis . . . it could not constitutionally continue after that basis no longer existed." Id. at 574-75, 95 S.Ct. at 2493. He concluded that "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." Id. at 576, 95 S.Ct. at 2494.[12]
To justify confinement of an individual following an insanity acquittal, therefore, due process requires a judicial *1069 determination that the individual is mentally ill and dangerous to himself or others. Powell v. Florida, 579 F.2d 324, 330 (5th Cir. 1978); Lee v. Kolb, 449 F.Supp. 1368, 1374 (W.D.N.Y.1978); see also Bolton v. Harris, 130 U.S.App.D.C. 1, 6, 395 F.2d 642, 647 (1968).[13] On its face, Conn.Gen.Stat. § 53a-47 meets this due process requirement. Under that statute a person acquitted by reason of insanity is entitled to release unless the state establishes by a preponderance of the evidence that the individual is, at the time of the hearing, "mentally ill to the extent that his release would constitute a danger to himself or others." Conn.Gen. Stat. § 53a-47(a)(1).
Petitioner claims, however, that the determination of dangerousness by the state courts in his case did not satisfy substantive due process standards in that the state courts effectively held that the dangerousness requirement of section 53a-47 was satisfied so long as the petitioner could not assure the courts that he would never have a relapse if released from the hospital. In essence, petitioner contends that the state courts violated his constitutional rights by (1) ruling that he was dangerous in the absence of any positive evidence supporting that determination, and (2) by shifting the burden of proof to him on the issue of whether he was mentally ill to the extent that his release would constitute a danger to himself or others. These contentions will be discussed in turn.

A. Evidence of Dangerousness

Petitioner argues that no evidence was presented to the state courts upon which the courts could constitutionally base a finding that petitioner's release would constitute a danger to himself or others. Petitioner cites to the trend of the law in the area of involuntary civil commitments, where a determination of dangerousness is also a necessary basis for involuntary confinement. In the civil commitment cases, several federal courts have held that a minimal regard for the individual's due process rights requires that the determination of dangerousness be based on a recent overt act, threat, or attempt of the individual facing commitment. Stamus v. Leonhardt, 414 F.Supp. 439, 450-51 (D.Iowa 1976); Doremus v. Farrell, 407 F.Supp. 509, 514-15 (D.Neb.1975) (three-judge court); Lynch v. Baxley, 386 F.Supp. 378, 391 (M.D.Ala.1974) (three-judge court); Lessard v. Schmidt, 349 F.Supp. 1078, 1093 (E.D.Wis.1972) (three-judge court), vacated and remanded on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974), judgment reinstated, 379 F.Supp. 1376 (E.D.Wis.1974), vacated and remanded on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975), judgment reinstated, 413 F.Supp. 1318 (E.D. Wis.1976).[14]
In the instant case petitioner correctly argues that the state court findings of dangerousness *1070 were not based upon his recent overt behavior. The records of the three hearings at issue here establish that petitioner manifested no signs of overt psychosis, delusions, or thought disorder. The psychiatrists testified that due to the regular use of medication in the hospital, petitioner's underlying mental illness was in remission.[15]
In the context of the confinement of persons acquitted on grounds of insanity, however, evidence of a recent overt act, threat, or attempt indicating dangerousness is not the only basis upon which a court can, consistent with due process, find that the person's release would constitute a danger to himself or others. It is evident that a court may consider the past violent act, for which the person was brought to trial, as some evidence of a future potential for dangerousness. See Powell v. Florida, supra, 579 F.2d at 333; United States v. Ecker, 177 U.S.App.D.C. 31, 49-50, 543 F.2d 178, 196-97 (1976). Though an acquittal on grounds of insanity absolves the actor of criminal responsibility for the violent act, the verdict necessarily establishes that the person committed the act:
"Plainly the acquittal by reason of insanity reflects a jury determination, beyond a reasonable doubt, that except for the defense of insanity, defendant did do the act, e. g., kill the deceased, and have the intent, that constitutes the substantive crime without any exculpation or mitigation in non-insanity defenses (e. g. self-defense). Lynch v. Overholser, 369 U.S. 705, 714, 82 S.Ct. 1063, 8 L.Ed.2d 211 . . . (1962). If a jury is not ready to make that determination it must acquit completely, without going on to consider the insanity defense."
Dixon v. Jacobs, 138 U.S.App.D.C. 319, 331, 427 F.2d 589, 601 (1970) (Leventhal, J. concurring). Thus a verdict of not guilty by reason of insanity establishes that the acquittee has once been dangerous to society because of his mental condition.
In the instant case, in the absence of evidence of recent overt behavior indicating that petitioner would have a relapse, the fact that petitioner had committed a violent act in his past provided the only evidence that petitioner if released might become dangerous once again.[16] While an insanity acquittal may be uncontroverted evidence of prior violent conduct of the individual, its probative value in predicting future dangerousness depends in large part on how far in the past the violent act occurred. At the time of the first commitment hearing in May 1974, approximately three years had passed since petitioner had shot his next-door neighbor; by the time of the second commitment hearing in December 1974, another six months had passed; and by the time of the third commitment hearing in October 1975, a total of a little over four years had passed. In these circumstances, it was possible to conclude that petitioner's past violent conduct constituted some relevant evidence of his possible future dangerous behavior; however, without more evidence in the way of *1071 expert opinion that his earlier dangerousness continued, this was insufficient to satisfy the state's burden of proof. As the past act becomes more and more remote, the courts should increasingly focus on the recent overt acts, threats or attempts of the insanity acquittee. Otherwise the acquittee will be forced to serve a life sentence on the basis of a past act for which he was not found legally responsible. Here, the state courts effectively held: "once dangerous, always dangerous." Thus the state courts in effect placed the burden on petitioner to prove that he was not dangerously mentally ill. Whether it was a constitutional error to place this burden on the petitioner is considered next.

B. Burden of Proof

An examination of the state court decisions, see section I supra, reveals that the state courts effectively shifted the burden of proof to the petitioner on the issue of whether he was "mentally ill to the extent that his release would constitute a danger to himself or others." Rather than require the state to prove that petitioner, if released, would have a relapse and again become dangerous, the state courts required petitioner to prove that he would not have a relapse and thereby become dangerous. This shifting of the burden of proof violated the statutorily imposed burden of proof, which requires the state to prove "by a preponderance of the evidence" that the individual is dangerously mentally ill. Conn.Gen.Stat. § 53a-47. A state law violation alone, however, is not cognizable under 28 U.S.C. § 2254; on a petition by a state prisoner for a writ of habeas corpus, this court can only correct errors of constitutional magnitude. Mapp v. Warden, 531 F.2d 1167, 1173 (2d Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 498, 50 L.Ed.2d 592 (1976); United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975); see Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
Whether shifting the burden of proof to petitioner also constituted a violation of petitioner's constitutional rights is less clear. Neither the United States Supreme Court nor the Second Circuit Court of Appeals has ruled on what burden and standard of proof are required under the due process clause to confine an insanity acquittee on the ground that he is mentally ill and dangerous to himself or others. In the context of involuntary civil commitments, the Supreme Court recently held that in order to involuntarily commit an individual for an indefinite period in a state mental hospital, due process requires that the state prove by "clear and convincing evidence" that the individual is mentally ill and dangerous to himself or others. Addington v. Texas, ___ U.S. ___, ___ - ___, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).[17]
The fact that such a heavy burden of proof was constitutionally required of the state in Addington might indicate that the constitution requires at a minimum that the burden of proof be placed on the state in the context of the confinement of insanity acquittees.[18] In response to this argument, *1072 which has not been specifically presented to this court, it is sufficient to note that while the Supreme Court has gone a long way in protecting the constitutional rights of persons involuntarily confined for treatment, it has not yet extended the rule of Addington to the instant case. The following dicta of Justice Harlan in Lynch v. Overholser, 369 U.S. 705, 711-15, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962), where a clear distinction was made between the basis for the confinement of an insanity acquittee and one civilly committed, indicates that when an individual's original commitment is based on his own contention that he should not be punished for his wrongful conduct because of his insanity, this diminishes the fundamentality of his liberty interests:
"The criminal defendant who chooses to claim that he was mentally irresponsible when his offense was committed is in quite a different position. It is true that he may avoid the ordinary criminal penalty merely by submitting enough evidence of an abnormal mental condition to raise a reasonable doubt of his responsibility at the time of committing the offense. Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successfully invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision."
Id. at 715, 82 S.Ct. at 1069-1070. While this dicta is not a square discussion of the constitutional issue, it does clearly imply that a state can, consistent with the Constitution, require an insanity acquittee, rather than the state, to carry the burden of proof at a release-from-commitment hearing on the issue of the acquittee's mental condition. Cf. Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); Patterson v. New York, 432 U.S. 197, 205, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (a state may constitutionally place the burden of proof of insanity on a criminal defendant). Since Supreme Court dicta must be given considerable weight and cannot be ignored, see United States v. Bell, 524 F.2d 202, 206 (2d Cir. 1975), this court cannot hold that the state court's shifting of the burden of proof in this case constituted a constitutional violation. See Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 314, 281 F.2d 943, 949 (1960) (Burger, J.) (placing the burden of proof on the insanity acquittee to establish eligibility for release from a mental institution "violates no constitutional guarantee"). It is ironic that where, as here, the Connecticut legislature has placed a more stringent burden on the state than the Constitution demands, the state courts' failure to comply with the State statute is not an error which this court can correct under 28 U.S.C. § 2254. See cases cited supra.
The temptation to extend the rule of Addington here, in spite of the dicta of Lynch v. Overholser, is easy to resist in the instant case since the Connecticut statutory scheme provides petitioner with substantially the same relief this court would grant him if the state courts were held to have committed constitutional error. If this court had the power to grant whatever relief "law and justice require," 28 U.S.C. § 2243, it would do no more than require the state court to hold a prompt hearing at which the proper allocation of the burden of proof would be applied. To a considerable extent, this avenue of relief has been wrought by the Connecticut legislature in section (c) of Conn.Gen.Stat. § 53a-47, quoted in note 4, supra.
While section 53a-47(c) leaves the state courts with some discretion in deciding when to told a hearing to determine petitioner's *1073 present mental condition, it is hoped that the consideration of this case by this court has not been without usefulness. Since the state courts did improperly shift the burden of proof, in violation of Conn. Gen.Stat. § 53a-47, it would be only fair that petitioner be given a prompt hearing under section 53a-47(c), at which the state court would follow the statutory mandate requiring proof by the state by a "preponderance of the evidence." Furthermore, at this hearing, both the petitioner and the state court could give closer attention and consideration to subsection (e)(2) of section 53a-47, which appears to have played little role in the previous state court decisions. That subsection provides: "The court may order that such person be released under such conditions and supervision as the court deems appropriate to his situation." (Emphasis added.) See O'Connor v. Donaldson, 422 U.S. at 576, 95 S.Ct. 2486, quoted supra. Now that petitioner has undergone several years of treatment at the state mental hospital, it may well be that even if his underlying mental illness remains, petitioner can be released in an outpatient setting, where his regular use of medication and management of his own affairs can be monitored in such a way that petitioner would not pose a danger to himself or others.[19]
For the foregoing reasons, the petition for a writ of habeas corpus is denied.
SO ORDERED.
NOTES
[1]  According to the Connecticut Supreme Court this meant that at his trial the jury found "that at the time of the commission [of the offense] there was at least reasonable doubt as to his sanity." State v. Warren, 169 Conn. 207, 215, 363 A.2d 91, 96 (1975).
[2]  Conn.Gen.Stat. § 53a-47(a) provides:

"(1) When any person charged with an offense is acquitted on the grounds of mental disease or defect, the court shall order such person to be temporarily confined in any of the state hospitals for mental illness for a reasonable time, not to exceed ninety days, for an examination to determine his mental condition . . .. (2) The person to be examined shall be informed that, in addition to the examination provided for in subdivision (1), he has a right to be examined during such confinement by a psychiatrist of his own choice. (3) Within sixty days of the confinement pursuant to subdivision (1), the superintendent of such hospital and the retained psychiatrist, if any, shall file reports with the court setting forth their findings and conclusions as to whether such person is mentally ill to the extent that his release would constitute a danger to himself or others. Copies of such reports shall be delivered to the state's attorney or prosecutor and to counsel for such person. (4) Upon receipt of such reports, the court shall promptly schedule a hearing. If the court determines that the preponderance of the evidence at the hearing establishes that such person is mentally ill to the extent that his release would constitute a danger to himself or others, the court shall confine such person in a suitable hospital or other treatment facility."
[3]  The state court made several findings, the following of which represent the gist of those findings:

"15. [It is] Dr. Lee's opinion [that] if the defendant was released from the hospital and he failed to take the medication prescribed for him, he would constitute a danger to himself and others.
". . . .
"21. Recent studies from the Veterans' Administration Hospital show that close to fifty per cent of the readmissions to those hospitals were due to the failure of patients to realize the need to continue taking medication for an indefinite period of time.
". . . .
"23. The defendant's condition is not eliminated by medication; it is only controlled. In other words, medication does not affect the cause, only the symptoms.
"23a. Once released from a mental institution, there is no way in which authorities can control whether the defendant will faithfully and constantly take his medication."
Petitioner's Exh. C at 10-11.
[4]  Conn.Gen.Stat. § 53a-47(c) provides in full:

"(1) Upon certification by the superintendent of the hospital or institution that, in his opinion, such person is no longer mentally ill to the extent that his release would constitute a danger to himself or others, the court may order the release of the person confined at the expiration of thirty days from the time such certificate is filed. (2) At the time such certificate is filed with the court, a copy shall be furnished to the state's attorney or prosecutor who may request a hearing as to whether such person should be released. At such hearing, evidence of mental condition may be submitted. The confined person shall be released unless the state establishes by a preponderance of the evidence that such person is, at the time of hearing, mentally ill to the extent that his release would constitute a danger to himself or others. (3) The superintendent shall, during such confinement, submit to the court at least every six months a written report with respect to the mental condition of such person. Copies of such report shall be furnished to the state's attorney or prosecutor and counsel for the confined person. The court, upon its own motion or at the request of the parties, may at any time hold a hearing to determine whether such person should be released prior to the expiration of the maximum period, in accordance with the standards set forth in subdivision (1), provided such a hearing shall be held at least every five years."
[5]  The first commitment hearing was precipitated by an order under Conn.Gen.Stat. § 53a-47(a)(1) confining petitioner to a mental hospital for not more than 90 days for an examination to determine the petitioner's mental condition and reports of findings and conclusions by the superintendent of such hospital as to mental illness and danger to self or others. Although reports are to be delivered also to the state's attorney or prosecutor, this section does not expressly authorize them to participate in the hearing. Under section 53a-47(c)(1), if the superintendent certifies that in his opinion the committed person is no longer mentally ill to the extent that his release would constitute a danger to himself or others, the state's attorney or prosecutor, under section 53a-47(c)(2), may request a hearing.
[6]  Dr. Lee concluded his written psychiatric report by stating:

"At this time I do not consider Mr. Warren ill to the extent that his release would constitute a danger to himself or others. Continued favorable prognosis, however, must be based on the continued use of psychotropic medication and regular attendance at a psychiatric out-patient department." Petitioner's Exh. A at 18a.
Dr. Voelkening concluded his report by stating:
"During my examination, I was unable to detect clinical evidence of depression. There was no disorder in thinking and no disorder in perception, such as hallucinations. He impressed me as being of average intelligence. His improvement is most likely due to regular administration of tranquilizers, and he should continue to take these regularly.
"Based on my professional background and experience, I do not consider Mr. Warren ill to the extent where his release would constitute a danger to himself or others." Id. at 21a.
[7]  As a representative example, the following is an excerpt from Dr. Voelkening's report:

"Since I submitted my last evaluation of Mr. Warren, there have been no drastic changes in his condition or in his adjustment in the hospital. . . .
". . . .
". . . At the present time there is nothing to indicate severe or overt psychopathology. His thinking is logical and rational and is free of any delusional thoughts. Hallucinations are absent. Cognition, memory and orientation are intact and he seems to be of average intelligence. Mr. Warren is presently receiving injectable Prolixin; namely, Prolixin Decanoate 50 mgs. I. M. every two weeks as well as Tremin 5 mgs. twice a day to counteract possible side-effects from Prolixin.
"Based on this most recent examination and a review of the available records, I have come to the conclusion that, at this time, Mr. Warren is no longer mentally ill to the extent that his release would constitute a danger to others or to himself. His improvement can be explained as a result of living in a structured environment in the hospital where he is kept busy and the regular administration of psychotropic medication." Petitioner's Exh. L.
[8]  The court based its conclusion on its findings, inter alia, that

"it cannot be said unequivocally that he will not be a danger; if he did not take the prescribed drugs he could have the overt symptoms of paranoid schizophrenia and he could be psychotic in six weeks; a failure to take the drugs could result in a recurrence of the symptoms, now controlled, which the patient might not recognize; . . . it is a fact that most patients including paranoid schizophrenics, who are released and feel better stop taking their medicine; if he did not take the tofranil, he might develop depression and if this continued long enough he would again be paranoid schizophrenic, would project his guilt to others and then would be dangerous; . . . about fifty per cent of all readmissions to Veterans' Hospitals for mental patients are former patients who did not continue to take the prescribed medications."
Petitioner's Exh. I at 4-6.
[9]  Petitioner does not have to pursue state habeas corpus relief to exhaust state remedies once the highest state court has passed upon his constitutional claims. See Brown v. Allen, 344 U.S. 443, 449 n. 3, 73 S.Ct. 397, 97 L.Ed. 469 (1953).
[10]  Although the Supreme Court of Connecticut denied the petitioner's motion to amend the record and its appeal to include the record of the second Connecticut hearing, it did consider that record in the appendix to petitioner's brief: "After a review of the evidence as printed in the appendix to the defendant's brief, we conclude that the facts found by the court are amply supported by the evidence in the case and established by a preponderance of the evidence." State v. Warren, 169 Conn. at 213, 363 A.2d at 94, 95.
[11]  Respondent also argues that petitioner's constitutional challenge to the state court rulings of 1974 and 1975 is now moot on the grounds that petitioner's present confinement is based on subsequent psychiatric reports which state that petitioner's mental condition has deteriorated and that petitioner's release would now constitute a danger to himself or others. Respondent's argument must be rejected since where the legal questions presented are "capable of repetition, yet evading review," the questions will not be held to be moot. See Sosna v. Iowa, 419 U.S. 393, 399-400, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975).
[12]  See Developments in the LawCivil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1212-19 (urging that a finding of incapacity be a threshold requirement for civil commitment); see generally Winters v. Miller, 446 F.2d 65 (2d Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971).
[13]  Where a judicial conclusion of "dangerousness" will result in a deprivation of liberty, what due process requires to support such a conclusion presents a question of federal constitutional law. See Hollis v. Smith, 571 F.2d 685, 695-96 (2d Cir. 1978); Doremus v. Farrell, 407 F.Supp. 509, 513 (D.Neb.1975) (three-judge court); Lynch v. Baxley, 386 F.Supp. 378, 390-91 (M.D.Ala.1974) (three-judge court); Lessard v. Schmidt, 349 F.Supp. 1078, 1093 (E.D.Wis. 1972) (three-judge court), vacated and remanded on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974), judgment reinstated, 379 F.Supp. 1376 (E.D.Wis.1974), vacated and remanded on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975), judgment reinstated, 413 F.Supp. 1318 (E.D.Wis.1976).
[14]  For example, the court in Lynch v. Baxley, supra, stated:

"Due process requires that the need for confinement be based upon a substantial likelihood that dangerous behavior will be engaged in unless restraints are applied. While the actual assessment of the likelihood of danger calls for an exercise of medical judgment, the sufficiency of the evidence to support such a determination is fundamentally a legal question. A mere expectancy that danger-productive behavior might be engaged in does not rise to the level of legal significance when the consequence of such an evaluation is involuntary confinement. To confine a citizen against his will because he is likely to be dangerous in the future, it must be shown that he has actually been dangerous in the recent past and that such danger was manifested by an overt act, attempt or threat to do substantial harm to himself or to another."
386 F.Supp. at 391 (footnote omitted).
[15]  The state court findings and conclusions on the issue of whether petitioner might discontinue taking his medication after release, and therefore might become dangerous to himself or others, were based in large part on testimony regarding studies from the Veterans' Administration which showed that approximately 50 percent of all mental patients readmitted to those hospitals were former patients who did not continue to take their prescribed medication. See Petitioner's Exh. C at 10; Petitioner's Exh. E at 26; Petitioner's Exh. I at 5-6. The V.A. studies discussed and relied upon by the state courts, however, reveal nothing about whether this petitioner, or even patients in petitioner's situation generally, would discontinue taking medication upon release. The V.A. studies do not offer any evidence as to the statistical likelihood of released patients failing to take medication; the studies only refer to the percentage of patients readmitted who were readmitted for failure to take their medication. No statistics were presented to the state courts concerning the percentage of all released patients who subsequently failed to take their medication. See Petitioner's Exh. B at 18a.
[16]  On the issue of whether petitioner was mentally ill, the evidence before the state courts unequivocally established that petitioner had an underlying mental illness at the time of the commitment hearings.
[17]  See Hollis v. Smith, 571 F.2d 685, 695-96 (2d Cir. 1978) (where continued confinement of a state prisoner serving an indeterminate sentence as a sex offender depended upon a court determination that the person presented a danger to society, due process requires that the determination of dangerousness be based upon "clear, unequivocal, and convincing evidence").

The Connecticut civil commitment statute, Conn.Gen.Stat. § 17-176 et seq., comports with the due process requirement established by Addington. Section 17-178(c) of the statute states that a court may involuntarily commit an individual to a hospital only after the court finds "by clear and convincing evidence that the person . . . is mentally ill and dangerous to himself or herself or others or gravely disabled."
[18]  If the rule of Addington were to govern this case, it is clear enough that the state did not meet the burden of proof required in that case. For example, the conclusion of the state court following petitioner's third commitment hearing that "it cannot be said unequivocally that [petitioner] will not be a danger," quoted more fully supra n. 8, can be upheld only on the basis that it was the petitioner's burden to prove that he would continue to subject himself to prescribed treatment and medication. While the Connecticut statute did not place that burden upon him, it does not necessarily follow, however, that it was a violation of his constitutional rights to do so.
[19]  The courts must be mindful of Judge Smith's statement in Winters v. Miller, 446 F.2d 65, 68 (2d Cir. 1971):

"A finding of `mental illness' even by a judge or jury, and commitment to a hospital, does not raise even a presumption that the patient is `incompetent' or unable adequately to manage his own affairs."


                      PUBLISHED

UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT

ANGELA JOHNSON,                      
              Plaintiff-Appellant,
              v.
                                          No. 12-1381
AMERICAN UNITED LIFE INSURANCE
COMPANY,
             Defendant-Appellee.
                                     
       Appeal from the United States District Court
 for the Middle District of North Carolina, at Greensboro.
            L. Patrick Auld, Magistrate Judge.
                (1:09-cv-00037-LPA-LPA)

                Argued: December 5, 2012

                 Decided: May 24, 2013

     Before TRAXLER, Chief Judge, and FLOYD and
              THACKER, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge Floyd and Judge
Thacker joined.
2         JOHNSON v. AMERICAN UNITED LIFE INSURANCE
                          COUNSEL

ARGUED: Gavin James Reardon, ROSSABI BLACK
SLAUGHTER, PA, Greensboro, North Carolina, for Appel-
lant. Elizabeth J. Bondurant, SMITH MOORE LEATHER-
WOOD, LLP, Atlanta, Georgia, for Appellee. ON BRIEF: T.
Matthew Creech, SMITH MOORE LEATHERWOOD, LLP,
Greensboro, North Carolina, for Appellee.

                          OPINION

TRAXLER, Chief Judge:

   Richard Johnson ("Richard") participated in an employee
welfare benefit plan ("the Plan") that provided life insurance
and accidental death and dismemberment ("AD & D") bene-
fits through group policies issued by American United Life
Insurance Company ("AUL"). When Richard died in a single-
vehicle crash, his widow Angela Johnson ("Johnson")
received life insurance benefits, but AUL, which also served
as administrator for the Plan, refused to pay AD & D benefits.
Richard was highly intoxicated at the time of his fatal crash,
and AUL concluded that Richard’s drunk-driving death was
not the result of an "accident" under the Plan. Johnson filed
this action under the Employee Retirement Income Security
Act ("ERISA"), see 29 U.S.C. § 1132(a)(1)(B), to recover
these AD & D benefits. Applying a de novo standard of
review, the district court affirmed the denial of benefits on the
grounds that Richard’s death was not accidental because the
fatal crash was an "anticipated and expected" result of driving
while intoxicated.

  For the reasons set forth in detail below, we must reverse.
The insurance policies do not define the term "accident"
despite its critical importance for determining eligibility for
AD & D benefits. Because "accident" is susceptible to more
             JOHNSON v. AMERICAN UNITED LIFE INSURANCE                       3
than one reasonable interpretation, we construe it against
AUL, the drafting party, and conclude that a reasonable plan
participant under similar circumstances would have under-
stood Richard’s alcohol-related crash to be an "accident"
under the policy language.

   The question of whether drunk-driving deaths or injuries
are "accidental" for purposes of accidental death insurance
has perplexed the judiciary for some time.1 Given the "sheer
number of court cases nationwide involving disputes over
claims by drunk drivers," an insurer surely understands that it
will "likely face claims under its AD & D policies based on
injuries sustained in alcohol-related collisions." Kovach v.
Zurich Am. Ins. Co., 587 F.3d 323, 336 (6th Cir. 2009). The
interpretive onus belongs on the insurers who draft these acci-
dent insurance policies; they can eliminate dilemmas like this
one by clearly and plainly stating whether a loss caused by the
participant’s driving drunk is "accidental" so that the insured
"know[s] what he is getting in his insurance policy." Senkier
v. Hartford Life & Accident Ins. Co., 948 F.2d 1050, 1053
(7th Cir. 1991).

  Reaching this result gives us no great pleasure. Drunk driv-
ing is reckless, irresponsible conduct that produces tragic con-
  1
   The Pennsylvania Supreme Court sums up the frustration common to
courts addressing this issue:
      What is an accident? Everyone knows what an accident is until
      the word comes up in court. Then it becomes a mysterious phe-
      nomenon, and, in order to resolve the enigma, witnesses are sum-
      moned, experts testify, lawyers argue, treatises are consulted and
      even when a conclave of twelve world-knowledgeable individu-
      als agree as to whether a certain set of facts made out an accident,
      the question may not yet be settled and it must be reheard in an
      appellate court.
Brenneman v. St. Paul Fire & Marine Ins. Co., 192 A.2d 745, 747 (Pa.
1963); see Botts v. Hartford Accident & Indem. Co., 585 P.2d 657, 660
(Or. 1978) ("There are probably not many words which have caused
courts as much trouble as ‘accident’ and ‘accidental.’").
4         JOHNSON v. AMERICAN UNITED LIFE INSURANCE
sequences for the thousands it touches annually. But our task
in this case is not to promote personal responsibility or
enforce good driving habits. We must focus on the terms of
the policies issued under the Plan and determine whether
Richard died as a result of an accident without "allowing our
moral judgments about drunk driving to influence our
review." Kovach, 587 F.3d at 330. At bottom, this ERISA
appeal presents a problem of contract law which requires us
to determine the intent of the parties as reflected in the lan-
guage of the policy.

                                I.

                               A.

   The Plan provided Richard with (1) standard AD & D and
life insurance benefits of $25,000 through a policy paid for by
Richard’s employer, and (2) voluntary AD & D and life insur-
ance benefits of $100,000 through a policy paid for by Rich-
ard. AUL issued both policies. Johnson is the designated
beneficiary under the policies.

   Under the AD & D provision in the policies, AUL pays
benefits "[i]f a Person has an accident while insured under the
policy which results in a [covered] loss." J.A. 268. In the case
of an accidental loss of life to the insured, the policies pay the
principal benefit amount which in this case is $100,000 and
$25,000 for the employee- and employer-paid policies,
respectively. The policies define "accidental death" as "death
due to an accident, directly and independently of all other
causes," J.A. 224, but fail to define the predicate term "acci-
dent."

  The AD & D provision contains a limitations clause
expressly excluding the payment of benefits in various cir-
cumstances:

    Benefits are not payable for loss due directly or indi-
    rectly to:
            JOHNSON v. AMERICAN UNITED LIFE INSURANCE          5
    1. suicide or attempted suicide, whether sane or
    insane;

    2. air travel as a crew member;

    3. participation in a riot or from war or an act of war,
    whether declared or undeclared;

    4. commission of an assault or felony;

    5. the voluntary taking of:

      a. a prescription drug in a manner other than as
    prescribed by a physician;

       b. any other federally- or state-controlled sub-
    stance in an unlawful manner;

       c. non-prescription medication, in a manner other
    than as indicated in the printed instructions; or

      d. poison, except for accidental ptomaine poison-
    ing.

    6. the voluntary inhaling of gas (unless due to occu-
    pational accident); or

    7. sickness other than infection occurring as a result
    of accidental injury.

J.A. 226.

   With two exceptions, the terms of the employer- and
employee-paid policies are virtually identical. First, the
employee-paid policy includes an additional category in the
limitations clause for which AD & D benefits are not pay-
able—"participation in hang-gliding, bungee jumping, auto-
mobile racing, motorcycle racing, skydiving, rock climbing,
6         JOHNSON v. AMERICAN UNITED LIFE INSURANCE
or mountain climbing." J.A. 269. Second, the employee-paid
policy provides an additional AD & D benefit not available
under the employer-paid policy—the "Seat Belt" benefit.
According to the policy, "AUL will pay an additional acci-
dental death benefit, called the Seat Belt Benefit, if a Person
dies as a result of an Automobile accident while properly
wearing a Seat Belt at the time of the accident." J.A. 270.

   Significantly, the Seat Belt Benefit alone is expressly sub-
ject to a drunk-driving limitation clause:

    This benefit will not be paid if the Person, while
    operating the Automobile, was legally intoxicated as
    defined by applicable laws, violating traffic laws,
    racing, stunt-driving, or engaging in other similar
    activity during the accident.

    In addition to the above limitation, this benefit is
    subject to the further limitations and provisions of
    this AD & D section.

J.A. 270 (emphasis added).

                              B.

   On August 2, 2007, at about 1:30 a.m., Richard was driving
a pickup truck owned by his employer near Myrtle Beach,
South Carolina, when he lost control of the vehicle and veered
off the road, struck a highway sign and flipped over multiple
times. Richard was partially ejected from the vehicle and sus-
tained fatal injuries. The law enforcement officer who investi-
gated the incident reported that the primary factor
contributing to Richard’s crash was that he was driving too
fast for conditions. The post-incident traffic report estimated
that Richard had been driving 65 mph in a 50 mph zone. The
report contains no mention of alcohol. The Certificate of
Death issued by the Horry County Coroner stated under
"Cause of Death" that Richard died from internal injuries
          JOHNSON v. AMERICAN UNITED LIFE INSURANCE            7
from a motor vehicle accident occurring when "victim lost
control of [his] vehicle, striking [the highway] pole." J.A.
192. A toxicology report subsequently issued by the South
Carolina Law Enforcement Division ("SLED") indicated that
Richard’s blood alcohol content ("BAC") was 0.289 percent
at the time of his fatal crash, significantly higher than South
Carolina’s legal limit of .08 percent.

   Richard’s employer submitted a claim on behalf of Johnson
for benefits under the two group policies. AUL immediately
paid the life insurance benefits but refused to pay AD & D
benefits under the two policies (totaling $125,000). AUL
issued a denial letter, concluding that, based on his state of
intoxication, Richard did not die in an accident and thus did
not qualify for AD & D benefits:

       Based upon the police and medical reports pro-
    vided to AUL, Richard Johnson had a sufficient
    quantity of intoxicants in his system to make him
    lose control of his mental and physical faculties at
    the time of his fatal collision. Therefore, benefits are
    not payable under the accidental death and dismem-
    berment provisions of the policy.

       Mr. Johnson’s death was not accidental in nature
    since it was not caused directly and independently of
    all other causes. An accident occurs when an unfore-
    seen, sudden and unexpected event, usually of an
    afflictive or unfortunate character[,] occur[s] . . . .

       The hazards of drinking excessively are widely
    known and widely publicized. It is clearly foresee-
    able that drinking excessive amounts of alcohol, and
    driving may result in death or bodily harm. As the
    decedent should have foreseen the consequences of
    drinking excessive amounts of alcohol, a determina-
    tion of his death not being accidental is reasonable.
8         JOHNSON v. AMERICAN UNITED LIFE INSURANCE
J.A. 359. The denial letter also noted that the limitations
clause specifically applicable to the Seat Belt Benefit
excluded any payment of benefits in light of the fact that
Richard’s BAC exceeded the legal limit.

   The employer sent a written request asking AUL to recon-
sider its denial, observing that "being intoxicated by alcohol
is not listed as a limitation under the AD & D benefit. The
only reference to a limitation for legal intoxication appears on
the following page and appears to apply to the seat belt bene-
fit exclusively." J.A. 170. On December 14, 2007, AUL again
denied AD & D benefits on the same grounds as before—that
Richard’s death was reasonably foreseeable at his level of
intoxication and therefore not accidental—and cited general
statistics regarding the effect of alcohol on a driver’s abilities.
But AUL also added a new ground for denial, focusing on
specific limitations in the AD & D policy provision. AUL
suggested that benefits were excluded because Richard died
during the "commission of an assault or felony" under South
Carolina traffic laws but did not elaborate on this assertion.

   Johnson subsequently retained counsel, who appealed the
denial administratively, arguing that the general AD & D pro-
vision "does not state that legal intoxication disqualifies one
from being involved in an accident." J.A 134. Counsel chal-
lenged the relevance of AUL’s statistics, suggesting that they
did not show that death was a likely result of driving while
intoxicated and that it is far more likely that a drunk driver
gets arrested. In fact, the "policy does exclude payment of the
seatbelt benefit if there is an accidental death while a person
is legally intoxicated;" however, "the policy does not
expressly contain any such limitation for death claims (sepa-
rate and apart from the seatbelt benefit). J.A. 134. AUL then
issued its final denial on December 9, 2008, largely repeating
its first several letters verbatim.
            JOHNSON v. AMERICAN UNITED LIFE INSURANCE                    9
                                    C.

    Johnson then filed this action, contending that AUL wrong-
fully denied her AD & D benefits. The parties filed cross-
motions for summary judgment.2 Defining "accident" by ref-
erence to North Carolina law, the district court concluded that
Richard’s death was due to an "accident" only if the crash was
the "unanticipated and unexpected result of an intentional,
voluntary act." J.A. 555 (internal quotation marks omitted). In
light of Richard’s significant level of intoxication while oper-
ating his vehicle 15 mph over the speed limit, the court held
that his crash "constitutes an anticipated and expected result
(and thus not an ‘accident’ within the meaning of § 58-3-30
. . .)." J.A. 555. Thus, the district court granted AUL’s motion
for summary judgment and denied Johnson’s cross-motion.

                                    II.

   "In an appeal under ERISA, we review a district court’s
decision de novo, employing the same standards governing
the district court’s review of the plan administrator’s deci-
sion." Williams v. Metropolitan Life Ins. Co., 609 F.3d 622,
629 (4th Cir. 2010). In Firestone Tire & Rubber Co. v. Bruch,
the Supreme Court established that courts must review a
denial of benefits "under a de novo standard unless the benefit
plan gives the administrator or fiduciary discretionary author-
ity to determine eligibility for benefits or to construe the terms
of the plan." 489 U.S. 101, 115 (1989). "If such discretionary
authority is conferred, the courts’ review is for abuse of dis-
cretion"; however, "the default standard of review is de
novo," and "abuse-of-discretion review is appropriate only
when discretion is vested in the plan administrator." Woods v.
Prudential Ins. Co. of Am., 528 F.3d 320, 322 (4th Cir. 2008).
AUL stipulated below that the Plan documents do not grant
  2
   The parties agreed to have the magistrate judge enter a dispositive rul-
ing. See 28 U.S.C. § 636(c)(1). For simplicity, we refer to the magistrate
judge as "the district court" or "the court."
10        JOHNSON v. AMERICAN UNITED LIFE INSURANCE
it discretionary authority to make a benefits-eligibility deter-
mination under the policies or construe the terms of the poli-
cies. Accordingly, our review of the denial of benefits in this
case is de novo, and our job is to make our own independent
determination of whether Johnson was entitled to the AD &
D benefits. The correctness, not the reasonableness, of AUL’s
denial of AD & D benefits is our only concern in this appeal.
Cf. Eckelberry v. ReliaStar Life Ins. Co., 469 F.3d 340, 343
(4th Cir. 2006) ("Under [the abuse of discretion] standard, we
do not search for the best interpretation of a plan or even for
one we might independently adopt. Rather, when reviewing a
plan administrator’s decision, a court will not disturb any rea-
sonable interpretation." (internal quotation marks omitted)).

                              III.

                              A.

   The question presented is whether Richard’s fatal crash
qualified as an "accident," which is not a defined term in these
group policies. "ERISA plans are contractual documents
which, while regulated, are governed by established principles
of contract and trust law." Haley v. Paul Revere Life Ins. Co.,
77 F.3d 84, 88 (4th Cir. 1996). Although courts apply federal
common law rules of contract interpretation when construing
a policy governed by ERISA, see United McGill Corp. v.
Stinnett, 154 F.3d 168, 171 (4th Cir. 1998); Denzler v. Quest-
ech, Inc., 80 F.3d 97, 101 (4th Cir. 1996), we look to "princi-
ples of state common law to guide our analysis," Wheeler v.
Dynamic Eng’g, Inc., 62 F.3d 634, 638 (4th Cir. 1995). Thus,
both state law and general contract law principles inform our
attempt to divine the meaning of an undefined term in an
ERISA plan. See Regents of the Univ. of Mich. v. Employees
of Agency Rent–A–Car Hosp. Assoc., 122 F.3d 336, 339 (6th
Cir. 1997).

  A paramount principle of contract law requires us to
enforce the terms of an ERISA insurance plan according to
          JOHNSON v. AMERICAN UNITED LIFE INSURANCE            11
"the plan’s plain language in its ordinary sense," Wheeler, 62
F.3d at 638, that is, according to the "literal and natural mean-
ing" of the Plan’s language, Stinnett, 154 F.3d at 172 (internal
quotation marks omitted); see Glocker v. W.R. Grace & Co.,
974 F.2d 540, 544 (4th Cir. 1992) ("The primary effort should
be to ascertain the intent of the parties . . . by giving language
its ordinary meaning . . . ."). Courts should determine "the
common and ordinary meaning as a reasonable person in the
position of the plan participant would have understood the
words." Cardoza v. United of Omaha Life Ins. Co., 708 F.3d
1196, 1203 (10th Cir. 2013) (internal quotation marks omit-
ted). Our inquiry, then, requires us to consider "what a reason-
able person in the position of the participant would have
understood those terms to mean." LaAsmar v. Phelps Dodge
Corp. Life Acc. Death & Dismem. & Dep. Life Ins. Plan, 605
F.3d 789, 801 (10th Cir. 2010).

   Moreover, "ERISA plans, like contracts, are to be con-
strued as a whole." Alexander v. Primerica Holdings, Inc.,
967 F.2d 90, 93 (3d Cir. 1992). Courts must look at the
ERISA plan as a whole and determine the provision’s mean-
ing in the context of the entire agreement. See generally
Restatement (Second) of Contracts § 202(2). And, because
contracts are construed as a whole, courts should seek to give
effect to every provision in an ERISA plan, avoiding any
interpretation that renders a particular provision superfluous
or meaningless. See Harris v. Epoch Group, L.C., 357 F.3d
822, 825 (8th Cir. 2004) ("[An ERISA plan] should be inter-
preted as to give meaning to all of its terms-presuming that
every provision was intended to accomplish some purpose,
and that none are deemed superfluous." (internal quotation
marks omitted)); see generally Restatement (Second) of Con-
tracts § 203(a) ("[A]n interpretation which gives a reasonable,
lawful, and effective meaning to all the terms is preferred to
an interpretation which leaves a part unreasonable, unlawful,
or of no effect . . . .").

   If application of these primary principles of construction
fails to provide clarity and the plan language remains ambigu-
12        JOHNSON v. AMERICAN UNITED LIFE INSURANCE
ous, then we are "compelled to apply the rule of contra
proferentum and construe the terms strictly in favor of the
insured," Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th
Cir. 1997), and "in accordance with the reasonable expecta-
tions of the insured," Gallagher v. Reliance Standard Life Ins.
Co., 305 F.3d 264, 269 (4th Cir. 2002) (internal quotation
marks omitted); see Glocker, 974 F.2d at 544. "An ambiguity
exists where the language of a contract is fairly and reason-
ably susceptible to either of the constructions asserted by the
parties." Glover v. First Union Nat’l Bank, 428 S.E.2d 206,
209 (N.C. Ct. App. 1993). Whether an ambiguity in fact
remains is ultimately a question of law for the court. See
Bicket v. McLean Sec., Inc., 478 S.E.2d 518, 521 (N.C. Ct.
App. 1996).

                              B.

   We begin, therefore, with the plain language of the dis-
puted provision, viewed in the context of the policy as a
whole. As noted, the policies define "accidental death" as
"death due to an accident, directly and independently of all
other causes," without defining the term "accident." Citing
various dictionary definitions, Johnson suggests that the most
natural and common understanding of the term "accident" is
an unintentional, unplanned incident that occurs as a result of
a careless error. See Merriam–Webster Dictionary Online,
http://www.merriam-webster.com (last visited April 25, 2013)
(defining accident as "an unforeseen and unplanned event or
circumstance"); The American Heritage Dictionary,
http://www. ahdictionary.com (last visited April 25, 2013)
("An unexpected and undesirable event, especially one result-
ing in damage or harm: an accident on the assembly line; car
accidents on icy roads."). More or less equating "accident"
with an absence of intent, Johnson reasons that the average
layperson would understand a loss resulting from a vehicular
crash to be accidental where the crash or loss was not planned
or intentionally caused. Johnson argues that a vehicular fatal-
ity, even in the instance of an intoxicated driver, would there-
          JOHNSON v. AMERICAN UNITED LIFE INSURANCE          13
fore qualify as an "accidental death" unless there was some
evidence to show that the driver planned to crash the vehicle
and cause his death.

   On the other end of the spectrum, the term "accident" could
also be understood to exclude any incident where the conse-
quences of intentional conduct are expected or reasonably
foreseeable. See American Heritage Dictionary, supra, (giv-
ing alternate definition of accident as "[a]n unforeseen event
that is not the result of intention or has no apparent cause").
Standing alone, then, the word "accident" is reasonably sus-
ceptible to more than one interpretation. See Olympic Airways
v. Husain, 540 U.S. 644, 651 n.6 (2004) ("The term ‘accident’
has at least two plausible yet distinct definitions. On the one
hand, . . . ‘accident’ may be defined as an unintended event.
On the other hand, . . . the term ‘accident’ may be defined as
an event that is ‘unusual’ or ‘unexpected,’ whether the result
of intentional action or not." (internal citation omitted)).

   Of course, we must construe the document as a whole.
Indeed, ambiguous language in one portion of an ERISA plan
may well be clarified by reference to unambiguous language
in another portion of the plan. See Temme v. Bemis Co., 622
F.3d 730, 734-35 (7th Cir. 2010). Here, there are a few other
portions of each policy that potentially bear on the meaning
and scope of "accident." First, the policies include a "Limita-
tions Clause" specifically applicable to AD & D benefits. This
provision expressly excludes the payment of AD & D benefits
for losses resulting from a wide spectrum of conduct, from
intentional acts like suicide to conduct that could be consid-
ered highly likely to produce a loss, such as "participation in
a riot or . . . war" and "motorcycle racing." Driving-drunk col-
lisions are not expressly and categorically excluded from AD
& D coverage, meaning at the very least that there are some
circumstances in which AD & D benefits would be paid for
injuries to drunk drivers. See Eckelberry, 469 F.3d at 345
("The simple fact that drunk driving occurred does not mean
there was no accident under the policy. If the insurer did not
14        JOHNSON v. AMERICAN UNITED LIFE INSURANCE
intend to cover any injury to a drunk driver, then drunk driv-
ing would have been a specific exclusion listed in the plan."
(emphasis added)).

   Second, the Seat Belt Benefit provided by the employee-
paid policy has an express "limitation" that specifically
excludes payment of this benefit where the insured was
legally intoxicated:

     This benefit will not be paid if the Person, while
     operating the Automobile, was legally intoxicated as
     defined by applicable laws, violating traffic laws,
     racing, stunt-driving, or engaging in other similar
     activity during the accident.

     In addition to the above limitation, this benefit is
     subject to the further limitations and provisions of
     this AD & D section.

J.A. 270 (emphasis added). This provision makes clear that
payment of the Seat Belt Benefit is not only subject to the
general AD & D limitations but also to a separate and distinct
drunk-driving limitation. There would be no reason to include
an express limitation excluding payment of the Seat Belt Ben-
efit where the insured was driving while intoxicated unless a
drunk-driving collision otherwise qualified as an "accident" in
the first place. Indeed, "[t]he purpose of an exclusion is to
take something out of the coverage that would otherwise have
been included in it." Columbia Cas. Co. v. Georgia & Florida
RailNet, Inc., 542 F.3d 106, 113 (5th Cir. 2008). Any other
reading would relegate this language to mere surplusage.

   While the limitations clauses clearly suggest that losses suf-
fered in a drunk-driving crash can qualify as accidental under
the Plan, these clauses do not necessarily clarify the definition
or scope of "accident." Like many other courts to have wres-
tled with the meaning of the undefined term "accident" as
applied to a claim arising from a drunk-driving crash, we find
          JOHNSON v. AMERICAN UNITED LIFE INSURANCE           15
it to be ambiguous. See, e.g., LaAsmar, 605 F.3d at 804 (col-
lecting cases and noting that "[s]urely there can be no ques-
tion in this case that the [undefined] term ‘accident,’ as used
in this Plan and as applied to [an insured’s drunk driving
fatality], is ambiguous."); cf. Wickman v. Northwestern Nat’l
Ins. Co., 908 F.2d 1077, 1087 (1st Cir. 1990) ("Case law is
fairly consistent in defining an accident, using equally ambig-
uous terms such as undesigned, unintentional, and unex-
pected.").

   Thus, we "apply the rule of contra proferentum and con-
strue the terms strictly in favor of the insured," Wegner, 129
F.3d at 818, and "in accordance with the reasonable expecta-
tions of the insured," Gallagher, 305 F.3d at 269. We con-
clude that a reasonable plan participant in circumstances
similar to those before us would easily have understood that
this accident was covered. In this case, there is no evidence
of intent. The Traffic Collision Report Form submitted by the
responding law enforcement officer stated simply that Rich-
ard "was traveling too fast for conditions . . . traveled off the
roadway, struck a highway sign, and overturned several
times." J.A. 393. The Certificate of Death issued by the Horry
County Coroner also indicated the "Manner of Death" was an
"accident" and listed the cause of death as "Internal Injuries"
from an "MVA," i.e., a motor vehicle accident. J.A. 392. See
Kovach, 587 F.3d at 333 (concluding that "an ordinary person
would characterize [the insured’s] collision at the intersection
to be an accident" even though the insured had been intoxi-
cated while riding his motorcycle because "he did not ‘expect’
or ‘intend’ to hit another vehicle"). In light of the general
Limitations Clause and the Limitations Clause specifically
applicable to the Seat Belt Benefit, a reasonable plan partici-
pant would have believed that Richard’s loss was the result of
an accident covered by the policies.

   "Strictly construing ambiguous terms presents ERISA pro-
viders with a clear alternative: draft plans that reasonable peo-
ple can understand or pay for ambiguity." Rasenack v. AIG
16        JOHNSON v. AMERICAN UNITED LIFE INSURANCE
Life Ins. Co., 585 F.3d 1311, 1320 (10th Cir. 2009) (internal
quotation marks omitted). As the Tenth Circuit aptly stated,

     It is not too much to ask of ERISA insurers to set
     forth explicitly what is and is not an accident cov-
     ered by their AD & D policy, and to state unambigu-
     ously whether death and disability caused by the
     insured’s drunk driving is an accident and, if not, to
     include a workable definition of drunkenness and of
     causation attributed to such drunkenness.

LaAsmar, 605 F.3d at 805.

   AUL could have defined "accident" or even imposed a lim-
itation on benefits for any loss resulting from the insured’s
driving with a blood alcohol content above the legal limit of
the state in which the vehicle is driven. Instead, the policy
language simply leaves "accident" undefined and susceptible
to more than one interpretation. Reviewing Johnson’s claim
de novo, we are constrained to construe the term in her favor
and conclude that Richard’s loss was "accidental."

                              C.

   AUL contends that when an ERISA plan fails to define "ac-
cident" or "accidental" with sufficient clarity, circuit prece-
dent requires us to apply the two-step framework embraced
by Eckelberry v. ReliaStar Life Insurance Company. See 469
F.3d at 343-46. Eckelberry bears some factual similarities to
the case before us. Eckelberry was insured under an AD & D
policy provided by his employer that afforded him benefits if
he died "due to an accident." Eckelberry died in a single-
vehicle crash, and it was later determined that his BAC was
50 percent higher than West Virginia’s legal limit at the time
of the accident. The plan administrator denied benefits, con-
cluding that Eckelberry’s death was not unexpected in light of
his intoxicated state and, therefore, was not "due to an acci-
dent." Unlike the AUL policy before us, however, the Eckel-
          JOHNSON v. AMERICAN UNITED LIFE INSURANCE              17
berry policy actually supplied a definition of "accident"—"an
unexpected and sudden event which the insured does not fore-
see." 469 F.3d at 342 (internal quotation marks omitted). The
contract interpretation problem in Eckelberry revolved around
the terms "unexpected" and "foresee," which were not
defined. Also, unlike the plan presently before us, the Eckel-
berry plan reserved discretionary interpretive authority to the
insurer/plan administrator, and therefore on appeal the central
question was whether the insurer abused its discretion in con-
cluding Eckelberry’s drunk-driving death was not "unex-
pected" and therefore not accidental. Id. at 343.

   In determining whether the drunk-driving collision quali-
fied as "unexpected," Eckelberry noted that numerous courts
have followed the analysis established by the First Circuit in
Wickman v. Northwestern National Insurance Co. to deter-
mine the meaning of "accident" when an insurance policy
fails to provide a definition or provides an ambiguous one:

    Because the Plan’s undefined terms and indeed the
    term "accident" are not always susceptible to easy
    application, many federal courts have adopted the
    framework laid out in [Wickman] to clarify the
    meaning of "unexpected." Initially, the court asks
    whether the insured subjectively expected his actions
    to result in injury or death. . . . However, "if the fact-
    finder . . . finds the evidence insufficient to accu-
    rately determine the insured’s subjective expectation,
    the fact-finder should then engage in an objective
    analysis of the insured’s expectations." This "objec-
    tive analysis" asks "whether a reasonable person,
    with background and characteristics similar to the
    insured, would have viewed the injury as highly
    likely to occur as a result of the insured’s intentional
    conduct."

Eckelberry, 469 F.3d at 343 (emphasis added) (internal cita-
tions omitted); see Wickman, 908 F.2d at 1088. Eckelberry
18        JOHNSON v. AMERICAN UNITED LIFE INSURANCE
recognized that in applying Wickman, courts have not always
held strictly to the "highly likely" threshold but have also used
a "reasonable foreseeability" standard. Id. at 344 & nn.1-2.
Ultimately, we concluded that the administrator’s "determina-
tion that Eckelberry’s death was not unexpected because he
put himself in a position in which he should have known seri-
ous injury or death could occur finds considerable support in
the record." Id. at 345 (emphasis added) (internal quotation
marks omitted).

   For several reasons, Eckelberry neither controls our analy-
sis here nor dictates the result in this appeal. Eckelberry did
not establish a per se rule that drunk driving injuries or fatali-
ties can never be accidental, as the opinion itself points out.
See id. Cases like this are highly fact-specific, rising and fall-
ing on the particular terms of the policy as applied to the
unique facts of the incident giving rise to the claim. Unlike
the policy presently before us, the policy in Eckelberry actu-
ally defined "accident" in terms of foreseeability—there, an
"accident" was "an unexpected and sudden event which the
insured does not foresee." Id. at 342 (internal quotation marks
omitted). Although the definition failed to define every rele-
vant term, the Eckelberry AD & D policy seemed to import
the tort concept of foreseeability. Hence, we observed that
"[o]rdinarily, a death that occurs as a result of driving while
intoxicated . . . is not an accident because that result is reason-
ably foreseeable." Id. at 345 (internal quotation marks omit-
ted).

  The terms of AUL’s policies, by contrast, do not steer us
towards a foreseeability analysis of "accident." We see noth-
ing in the policies to warrant defining "accident" so as to
exclude reasonably foreseeable losses:

     "Reasonable foreseeability," besides itself being
     ambiguous, injects a different spin to the analysis
     and, depending upon how broadly it is interpreted,
     could drastically reduce coverage under the AD & D
          JOHNSON v. AMERICAN UNITED LIFE INSURANCE           19
    policy since, particularly in hindsight, it could be
    said many accidents are foreseeable, even reasonably
    foreseeable, as opposed to unforeseeable.

LaAsmar, 605 F.3d at 809. Unlike Eckelberry, our review is
de novo in this appeal, and we construe the meaning of the
Plan terms in the first instance and are not limited to consider-
ing only the reasonableness of the decision and reasoning of
the claims administrator. Accordingly, we are not bound to
define "accident" as we did in Eckelberry simply because
these cases fall into the same general factual category.

                              IV.

   Finally, we must address the lower court’s use of state law
to define "accident." As previously noted, the district court
imported the North Carolina insurance statute’s definition of
"accident" into the terms of the Plan. This statute applies "to
the provisions of all group life, group accident, group health,
and group accident and health insurance policies and group
annuities . . . that are issued on or after October 1, 1989."
N.C. Gen. Stat. § 58-3-30(a). Finding an "absence of any
showing" in the record that the North Carolina statutory defi-
nition of "accident" has been preempted by ERISA, the court
concluded that the North Carolina statute controlled the defi-
nition of accident. J.A. 541.

   North Carolina law dictates that for any such group life or
accident policy, "‘[a]ccident’ . . . shall be defined to imply
‘result’ language and shall not include words that establish an
accidental means test." N.C. Gen. Stat. § 58-3-30(b). The dis-
trict court determined that under the "accidental result" test,
the relevant question is whether the crash was an "unantici-
pated and unexpected result of an intentional, voluntary act."
J.A. 555 (internal quotation marks omitted). In light of John-
son’s significant level of intoxication while operating his
vehicle at an excessive rate of speed, the court found that his
crash "constitutes an anticipated and expected result (and thus
20         JOHNSON v. AMERICAN UNITED LIFE INSURANCE
not an ‘accident’ within the meaning of § 58-3-30)." J.A. 555.
Johnson believes that the court properly considered the North
Carolina statute but reached the wrong result in applying it.
AUL replies ERISA preempts the North Carolina statute and
thus it was error for the court below to consider it; however,
AUL takes the position that the court nonetheless reached the
proper result because the statutory definition of "accident" is
very similar to the Wickman standard cited in Eckelberry.

                                  A.

   Johnson contends that the "Conformity with State Laws"
clause contained in the policies reflects the parties’ intent to
incorporate and make North Carolina insurance law part of
the policies.3 If this is true, Johnson suggests, we would
merely be enforcing the agreed-upon terms of the policy by
applying North Carolina law and would not actually be pre-
sented with a preemption problem.

   We are not convinced that the general Conformity-with-
State-Laws clause, standing alone, moots the question of pre-
emption. "ERISA plans must always conform to state law, but
only state law that is valid and not preempted by ERISA."
Louisiana Health Serv. & Indem. Co. v. Rapides Healthcare
Sys., 461 F.3d 529, 533 (5th Cir. 2006). However, assuming
the North Carolina statute applied here, we would still reach
the same conclusion.

   Section 58-3-30 of the North Carolina General Statutes dic-
tates that any group life or accident policy "shall" define "ac-
cident" so as "to imply ‘result’ language and shall not include
words that establish an accidental means test." N.C. Gen. Stat.
§ 58-3-30(b). Like many jurisdictions, North Carolina has rec-
  3
   This clause states in its entirety as follows: "CONFORMITY WITH
STATE LAWS: Any provision of the policy in conflict with the laws of
the state in which it is delivered is amended to conform to the minimum
requirements of those laws." J.A. 294.
            JOHNSON v. AMERICAN UNITED LIFE INSURANCE                       21
ognized a distinction between "accidental means" and "acci-
dental result" as those terms are used in insurance policies.
See Collins v. Life Ins. Co. of Va., 393 S.E.2d 342, 343 (N.C.
Ct. App. 1990).4 Under the stricter "accidental means" termi-
nology, no coverage is provided where the loss "occurs by
reason of an insured’s intentional act" or "is the natural and
probable consequence of a voluntary act or course of con-
duct." Id. By contrast, a policy that pays benefits based on an
"accidental result" standard does not categorically exclude
from the definition of "accident" losses resulting from inten-
tional acts; rather, "accidental" under this standard means a
loss occurred "fortuitously without intent or design" and was
"unexpected, unusual and unforeseen." Henderson v. Hartford
Accident & Indem. Co., 150 S.E.2d 17, 20 (N.C. 1966).

   Section 58-3-30(b) purports to eliminate for group life and
accident policies "issued on or after October 1, 1989" the dis-
tinction between "accident" or "accidental result" and "acci-
dental means" and move to a single result-oriented definition.
See N.C. Gen. Stat. § 58-3-30(a). Although we have found no
decisions from the North Carolina Supreme Court or Court of
Appeals specifically addressing this statute, subsequent case
law involving the meaning of "accident" in the context of
individual policies—where the accident/accidental means dis-
tinction apparently still exists—illuminates the meaning of
"‘result’ language" in § 58-3-30(b). In North Carolina Farm
Bureau Mutual Insurance Co. v. Stox, 412 S.E.2d 318, 325
(N.C. 1992), the North Carolina Supreme Court refused to
construe the undefined term "accident" in a homeowner’s pol-
icy as requiring the means of the loss to be accidental. See id.
(rejecting argument that loss was not accidental because the
  4
    Although the "distinction between loss due to ‘accidental means’ and
loss due to ‘accident’ . . . was, at one time, generally accepted by most
courts," recently "an increasing number of jurisdictions have rejected the
distinction between ‘accidental means’ and ‘accident,’ ‘accidental result,’
‘accidental injury,’ ‘accidental death,’ and the like, in favor of treating the
terms as legally synonymous." 10 Couch on Insurance 3d § 139.22 (Rev.
ed. 2012).
22        JOHNSON v. AMERICAN UNITED LIFE INSURANCE
"injuries resulted from . . . intentional acts"). The court con-
cluded "that where the term ‘accident’ is not specifically
defined in an insurance policy, that term does include injury
resulting from an intentional act, if the injury is not inten-
tional or substantially certain to be the result of the inten-
tional act." Id. (emphasis added). Under this "substantially
certain" standard, which is similar to—and perhaps more gen-
erous to the insured than—the Wickman "highly likely" stan-
dard, the question would be whether a reasonable plan
participant would have understood that driving while intoxi-
cated under similar circumstances was substantially certain to
result in death or severe injury. In this case, we would answer
that question in the negative.

   The record contains only general statistical data regarding
the extent to which a driver’s ability to operate a vehicle is
impaired by alcohol. In denying Johnson’s claim, AUL refer-
enced reports from the American Medical Association and the
National Traffic Safety Administration for the widely-
accepted common-sense proposition that "blood alcohol con-
centration is directly correlated with the degree of impairment
an individual displays when driving after drinking." J.A. 173.
AUL points to one additional document in the record pro-
duced by the National Commission Against Drunk Driving
that summarizes various stages of impairment based on BAC.
In this case, Richard had a BAC of .289, which, according to
the NCADD, would put a typical driver either in the "Confu-
sion" stage, which is marked by symptoms such as increasing
muscular incoordination and slurred speech, or in the "Stu-
por" stage, which is marked by significant lack of coordina-
tion or loss of motor functions. J.A. 532. This evidence makes
clear that impairment is highly likely for someone with a
BAC of .289, but there is no data with respect to drunk driv-
ing fatalities in relation to the incidents of drunk driving gen-
erally.

   The record supports the conclusion that injury or death is
a reasonably foreseeable consequence of driving at significant
             JOHNSON v. AMERICAN UNITED LIFE INSURANCE                   23
levels of intoxication. But we simply fail to see how this gen-
eral data demonstrates that driving with a BAC of .289 under
these circumstances is substantially certain to result in death
or severe injury. There is a significant difference between
these standards:

      A result is reasonably foreseeable if there are indica-
      tions which would lead a reasonably prudent man to
      know that the particular results could follow from his
      acts. Substantial probability is more than this. The
      indications must be strong enough to alert a reason-
      ably prudent man not only to the possibility of the
      results occurring but the indications also must be
      sufficient to forewarn him that the results are highly
      likely to occur.

City of Carter Lake v. Aetna Cas. & Sur. Co., 604 F.2d 1052,
1059 n.4 (8th Cir. 1979) (emphasis added). To the extent such
data exists, a cursory review actually suggests the oppo-
site—that such losses are not actually substantially certain or
highly likely to result from driving under the influence.5
Accordingly, even if we applied North Carolina’s "substan-
tially certain" test—which is almost indistinguishable from
the "highly likely" standard employed by Wickman—we
would conclude that Richard’s death was accidental and that
AUL owes benefits under the AD & D provisions.
  5
   For example,
      The Centers for Disease Control (CDC) studied alcohol-impaired
      driving by adults during the period 1993-2002. In 2002, the last
      year of the study, subjects reported making 159 million trips in
      which they drove while alcohol-impaired. Given that there were
      17,419 deaths from alcohol-related motor vehicle crashes in
      2002, drunk driving possibly proved fatal only once in every
      9,128 trips.
Douglas R. Richmond, Drunk in the Serbonian Bog: Intoxicated Drivers’
Deaths as Insurance Accidents, 32 Seattle U. L. Rev. 83, 117 (2008)
(internal footnotes omitted).
24        JOHNSON v. AMERICAN UNITED LIFE INSURANCE
                                B.

   AUL contends that N.C. Gen. Stat. § 58-3-30 falls within
ERISA’s broad preemptive scope and therefore cannot con-
trol. ERISA preempts "any and all State laws" that "relate to
any employee benefit plan" covered by ERISA. 29 U.S.C.
§ 1144(a). Nonetheless, ERISA specifically "saves" from pre-
emption "any law of any state which regulates insurance." 29
U.S.C. § 1144(b)(2)(A). "[A] state law must be specifically
directed toward the insurance industry in order to fall under
ERISA’s saving clause; laws of general application that have
some bearing on insurers do not qualify." Kentucky Ass’n of
Health Plans, Inc. v. Miller, 538 U.S. 329, 334 (2003) (inter-
nal quotation marks omitted). Moreover, "the state law must
substantially affect the risk pooling arrangement between the
insurer and the insured" to survive preemption. Id. at 342.

   Johnson argues that N.C. Gen. Stat. § 58-3-30 comes
within ERISA’s savings clause because, by prescribing the
limits of what constitutes an accident, it "alters the scope of
permissible bargains between insurers and insureds," Benefit
Recovery, Inc. v. Donelon, 521 F.3d 326, 331 (5th Cir. 2008)
(internal quotation marks omitted), and therefore "dictates to
the insurance compan[ies] the conditions under which [they]
must pay for the risk [they have] assumed," Miller, 538 U.S.
at 339 n.3. AUL contends that this statute is nothing more
than a state law regarding the interpretation of insurance poli-
cies, not a state law that "regulates insurance." 29 U.S.C.
§ 1144(b)(2)(A). AUL’s position relies on a well-established
line of decisions from our sister circuits embracing the notion
that "[r]ules of contract interpretation force the insurer to bear
the legal risks associated with unclear policy language," but
that "[s]hifting legal risk is . . . [much different than] transfer-
ring or spreading a policyholder’s risk." Miller v. Monumental
Life Ins. Co., 502 F.3d 1245, 1249 (10th Cir. 2007) (internal
quotation marks omitted); see Hammond v. Fidelity & Guar.
Life Ins. Co., 965 F.2d 428, 430 (7th Cir. 1992) ("We cannot
imagine any rational basis for the proposition that state rules
          JOHNSON v. AMERICAN UNITED LIFE INSURANCE          25
of contract interpretation ‘regulate insurance’ within the
meaning of § 1144(b)(2).").

   The preemption question in this case is not easily answered,
and we are especially loathe to wade into this issue in light of
the fact that it was not well-developed by the parties below.
Ultimately, we need not decide this question. If ERISA pre-
empts N.C. Gen. Stat. § 58-3-30(b), as AUL insists, our anal-
ysis set forth supra in section III.B remains unchanged as we
applied federal common law without regard to the North Car-
olina statute. But even if § 58-3-30(b) is not preempted, our
conclusion would remain unchanged for the reasons explained
in section IV.A. See McClure v. Life Ins. Co. of N. Am., 84
F.3d 1129, 1133 (9th Cir. 1996) (declining to decide whether
ERISA preempted state insurance rule advocated by the
insured where the court found in favor of coverage even with-
out applying the state rule).

                              V.

  For the foregoing reasons, we reverse the decision of the
court below and remand for entry of judgment awarding the
benefits in question to Angela Johnson.

                              REVERSED AND REMANDED


7 So.3d 649 (2009)
Glenn F. STRAUB, Appellant,
v.
LEHTINEN, VARGAS & RIEDI, P.A. and Claudio Riedi, Esq., Appellees.
No. 4D07-972.
District Court of Appeal of Florida, Fourth District.
April 29, 2009.
Larry A. Zink of Zink, Zink & Zink CO., LPA, Hillsboro Beach, for appellant.
Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Fort Lauderdale, for appellees.

On Remand from the Supreme Court of Florida
MAY, J.
This matter is before the court on remand from the Supreme Court of Florida. In our original decision we reversed and remanded the case to the trial court for reinstatement of the plaintiff's second amended complaint alleging a false light claim. See Straub v. Lehtinen, Vargas & Riedi, P.A., 980 So.2d 1085 (Fla. 4th DCA 2007). We also certified the question of whether Florida recognized such a claim. Id. at 1087. That question has now been answered in the negative and our decision has been quashed. Lehtinen v. Straub, 3 So.3d 1187 (Fla.2009). We have been directed to review the case in light of the supreme court's recent decision in Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1115 (Fla.2008).
Our review of the record indicates that the second amended complaint contained a single claim for false light invasion of privacy. The supreme court has now made clear that no such cause of action is cognizable in our state. We therefore affirm the trial court's order dismissing the plaintiff's second amended complaint with prejudice.
Affirmed.
STEVENSON, J., and TUTER, JACK, Associate Judge, concur.


4 A.3d 1054 (2010)
COM.
v.
THOMAS.[21]
No. 140 EAL (2010).
Supreme Court of Pennsylvania.
August 11, 2010.
Disposition of Petition for Allowance of Appeal Denied.
NOTES
[21]  Justice ORIE MELVIN did not participate in the consideration or decision of this matter.