Lifson v. INA Life Ins. Co. of N.Y, __ F.3d __, No. 02-9147, 2003 WL 21465000 (2d Cir. June 25, 2003).

The Second Circuit Court of Appeals held that an on call employee's journey home, where she expected to respond to electronic pages from her employer, fell within the "on and in the course of business" restriction of the employer's travel accident insurance policy.

Here, Lifson was a participant in a group employee benefit plan providing travel accident insurance. The policy covered injuries incurred while an employee was traveling on business and in the course of business. Lifson was struck by a car and killed en route to her home from her office. She was on call at the time, and was subject to being summoned by page to attend to company business. Lifson responded to pages by connecting via modem to her employer's computer system from a computer in her home. On the evening she was killed, her employer anticipated needing Lifson's services, and it was expected that she would be paged.

When his claim was denied, Lifson's husband sued to enforce the policy. The trial court granted defendant summary judgment on the ground that, since Lifson was not traveling home to respond to a page, her travel fell under the policy's commuting exclusion.

Reversing, the Second Circuit noted that because plaintiff's claims arise under § 502(a)(1)(B) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132, federal common law, including rules of contract interpretation, applies. Terms in the plan must be construed in accordance with the reasonable expectations of the insured, and ambiguities are to be construed against the drafter, the court explained.

A reasonable finder of fact could have concluded that Lifson's journey home was on business and in the course of business simply because it benefited the economic interests of her employer, the court held. First, the on call system allowed the employer to reduce the number of paid staff. Second, by returning home, where her personal computer-the tool she used to respond to pages-was located, Lifson was going to the place where she could quickly respond to the employer's needs. Finally, there was evidence that Lifson was expected to be, and would have been, paged repeatedly on the evening she was killed. A reasonable fact finder could easily conclude that Lifson was en route to the place where she and her employer expected her to work, and where in fact she would have done so.

Summary judgment for defendant cannot be based on the "on business. . .and in the course. . . of business" language in the plan, the court found. Accordingly, the court vacated the trial court's decision and remanded for further proceedings.

Plaintiff's Counsel

*Michael J. Longstreet, Syracuse, N.Y.

Copyright Association of Trial Lawyers of America Dec 2003
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