Mitchell v. Securian Financial Group, Inc.
Filing
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ORDER AND OPINION entered by Chief Judge James E. Shadid on 08/09/2016. For the reasons stated above, Defendant's Motion 15 for Summary Judgment is Denied. See full written Order and Opinion.(JS, ilcd)
E-FILED
Tuesday, 09 August, 2016 10:51:29 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JAMIE TROEGER, Administrator of the
Estate of Gayle Mitchell, Deceased,
Plaintiff,
v.
MINNESOTA LIFE INSURANCE
COMPANY,
Defendant.
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Case No. 14-1083
ORDER AND OPINION
This matter is now before the Court on Defendant’s Motion [15] for Summary Judgment.
For the reasons set forth below, Defendant’s Motion [15] is Denied.
BACKGROUND
The following facts are not in dispute. On July 20, 2002, Michael Mitchell fractured his
neck after falling head-first into Kickapoo Creek. The fracture resulted in quadriplegia, or
paralysis of all four extremities. In September 2005, Michael became a resident at Rose Garden
Care Center (“Rose Garden”), a residential care facility in Peoria Heights, Illinois. He developed
several medical conditions after his paralysis, including seizure disorder, depression,
hypertension, obesity, dyslipidemia, bowl mobility disorder, gastroesophageal reflux disease
(“GERD”), deep venous thrombosis, spasticity and chronic pain.
On at least four occasions between 2005 and 2006, Michael was found “non-responsive”
by caretakers at Rose Garden. On June 24, 2006, Michael was admitted to the intensive care unit
at Proctor Hospital for respiratory failure after he became unresponsive and stopped breathing
during ambulance transport to the hospital. In August 2006, Michael was transferred to OSF
1
Saint Francis Medical Center (“OSF”) when he was found unresponsive and caretakers were
unable to feel a pulse. Michael was again found unresponsive by Rose Garden caretakers and
transferred to OSF in September 2006. On each occasion he was successfully resuscitated.
On July 28, 2007, Michael began “actively seizing” at Rose Garden. He was initially
breathing on his own, but stopped breathing. Rose Garden called paramedics, and Advanced
Medical Transport (“AMT”) transferred Michael to OSF Hospital. AMT paramedics documented
Michael’s condition during transport, noting “no evidence of trauma” in any location and an
“unremarkable” physical examination. 1 ECF Doc. 16, ¶ 22. When paramedics attempted to
intubate Michael, they suctioned his airway and aspirated foreign material. ECF Doc. 28, at 13.
Michael could not be resuscitated and died at OSF Hospital. Dr. Richard C. Frederick was the
emergency room physician who treated Michael at OSF on July 28, 2007. Dr. Frederick signed
the medical records prepared by a resident which noted, under the heading of Initial Physical
Exam, “General—no evidence of trauma . . . Head/Neck—atraumatic . . . Extremities—no signs
of trauma.” See ECF Doc. 16-10. Those records also indicated that Michael had vomit on his
face. On October 18, 2007, a Coroner’s Inquest into Michael’s death was held by Peoria County
Coroner Johnna Ingersoll. The jury found that Michael’s death was “natural” from “seizure
disorder.”
1
Local Rule 7.1(D)(2)(b) provides that responses to motions for summary judgment must state, in separate
subsections, undisputed material facts, disputed material facts, disputed immaterial facts, undisputed immaterial
facts, and additional material facts. Local Rule 7.1(D)(2)(b)(6) cautions that “[a] failure to respond to any numbered
fact will be deemed an admission of the fact.” Id. This rule consistent with the Federal Rules of Civil Procedure,
which provide that when a party who fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may, inter alia, “consider the fact undisputed for the purposes of the motion.” Fed. R. Civ. Pro.
56(e)(2). Here, in addition to Plaintiff’s failure to comply with the formatting requirements of Local Rule 7.1(D)(2),
Plaintiff failed to respond to Defendant’s 22nd statement of fact. See ECF Doc. 24, at 4-5. Accordingly, the Court
will consider the statement undisputed. See Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994)
(“[D]istrict courts are not obligated in our adversary system to scour the record looking for factual disputes and may
adopt local rules reasonably designed to streamline the resolution of summary judgment motions.”).
2
Michael, as a former employee of the State of Illinois, obtained life insurance coverage
under a group policy for state employees. The life insurance policy was issued by Minnesota Life
Insurance Company (“Minnesota Life”) and included Accidental Death and Dismemberment
(“AD&D”) coverage. Minnesota Life paid Michael’s wife, Gayle Mitchell, $156,500 pursuant to
the policy’s Basic Life and Optional Life coverage. However, Minnesota Life declined to pay the
additional $156,500 under the AD&D double indemnity provision. The AD&D provision of the
policy states:
Accidental death or dismemberment by accidental injury as used in this
supplement means that your death or dismemberment results, directly and
independently of disease or bodily infirmity, from an accidental injury which is
unexpected and unforeseen.
ECF Doc. 16, ¶ 10.
The policy also stated “injury must occur while your coverage under this supplement is in
force” and “death or dismemberment must occur within 365 days after the date of the injury and
while your coverage under this supplement is in force.” Id.; ECF Doc. 16-1, at 27. The AD&D
policy further provided that “[i]n no event will [Minnesota Life] pay the accidental death or
dismemberment benefit where your death or dismemberment results from or is caused directly
by any of the following . . . (3) bodily or mental infirmity, illness or disease; or (4) medical or
surgical treatment . . . .” Id.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Summary judgment is mandated “after adequate time for discovery and
3
upon motion, against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Id. at 322-23. However, “[t]he burden on the non-movant is not onerous.” Waldridge v.
American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994). Rather, the non-movant “need only
come forward with appropriate evidence demonstrating that there is a pending dispute of
material fact” and “may rely on affidavits or any other materials of the kind identified in Rule
56(c).” Id.
“The interpretation of an insurance policy is a matter of state law.” Westfield Ins. Co. v.
Vandenberg, 796 F.3d 773, 777 (7th Cir. 2015). In Illinois, “an insurance policy is a contract, and
the general rules governing the interpretation of other types of contracts also govern the
interpretation of insurance policies.” Id., citing Hobbs v. Hartford Ins. Co. of the Midwest, 214
Ill. 2d 11, 17 (2005). When the language in an insurance policy is unambiguous, “the policy will
be applied as written, unless it contravenes public policy.” Hobbs, 214 Ill. 2d at 17. However,
when the language of an insurance policy is subject to more than one reasonable interpretation,
the policy is ambiguous. Id. “Although policy terms that limit an insurer’s liability will be
liberally construed in favor of coverage, this rule of construction only comes into play when the
policy is ambiguous.” Id. When a policy is ambiguous, “and if, after considering the contract
language in light of parol evidence and rules of construction, doubt still remains as to the
meaning of the contract, then the question of interpretation must be left to the trier of fact.”
Bourke v. Dun & Bradstreet Corp., 159 F.3d 1032, 1037 (7th Cir. 1998) (citing Countryman v.
Indus. Com'n, 292 Ill. App. 3d 738, 741 (1997)).
4
ANALYSIS
Minnesota Life asserts that summary judgment in its favor is appropriate for two reasons.
First, Minnesota Life argues that “[t]he existence of an injury is a threshold requirement of the
AD&D coverage,” and “[t]he only injury shown by the evidence is Mitchell’s broken neck.” ECF
Doc. 16, at 10. Thus, because Michael’s death occurred five years after he injured his neck, his
injury fell “squarely outside of the Group Policy’s AD&D coverage,” the terms of which require
that death “occur within 365 days after the date of injury.” Id.
Second, Minnesota Life argues that Plaintiff has failed “to establish any evidentiary link
between a purported injury, choking, and a death that results independently of disease or bodily
infirmity.” Id. at 13. Minnesota Life further claims that “[i]f Mitchell’s purported choking
occurred while seizing, death did not result directly and independently of his seizure disorder.”
Thus, “Plaintiff’s allegation of choking fails to establish any injury, and she lacks any evidence
to demonstrate that the alleged choking resulted independently of (i) Mitchell’s seizure disorder,
and actively seizing at the time of his death; (ii) his compromised ability to move to protect his
airway due to his bodily infirmity and tetraplegia; (iii) his gastroesophageal reflux disease that
significantly increases the risk of vomiting; or (iv) any of Mitchell’s other numerous medical
conditions.” Id. at 13-14.
In response, Plaintiff asserts that “[t]here is a triable issue of fact on whether Mitchell
accidentally aspirated food or vomit down his trachea which caused him to asphyxiate and have
respiratory cardiac arrest as Dr. Frederick testified[,] which was an accidental injury that was
sudden or unforeseen.” ECF Doc. 24, at 13. Additionally, Plaintiff asserts that the policy’s
requirement that death result “directly and independently of disease or bodily infirmity” is not
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part of the definition of accidental death—on which Plaintiff bears the burden of establishing—
but rather provides an exclusion to coverage that Minnesota Life must prove to defeat recovery.
(1) Whether Michael Sustained an Accidental Injury
At issue in this case is the cause of Michael’s death on July 28, 2007. In Illinois, “[t]he
insured has the burden of proving that his loss comes within the terms of his insurance policy.”
Roberts v. Allstate Life Ins. Co., 243 Ill. App. 3d 658, 660 (1993); Kolowski v. Metro. Life Ins.
Co., 35 F. Supp. 2d 1059, 1061 (N.D. Ill. 1998). The AD&D policy provides that “death or
dismemberment results, directly and independently of disease or bodily infirmity, from an
accidental injury which is unexpected and unforeseen.” ECF Doc. 16-1, at 27. The parties first
dispute whether Michael sustained an “accidental injury” as the term is used in the policy.
(a) Interpretation of Accidental Injury Insurance Provisions Under Illinois law
“An accident is something which happens by chance or fortuitously, without intention or
design, and which is unexpected and unforeseen.” Connecticut General Life Ins. Co. v. Aguilar,
579 F. Supp. 1201, 1204 (N.D. Ill. 1983) (citing Taylor v. John Hancock Ins. Co., 11 Ill. 2d 227,
230 (1957)). Illinois courts have adopted a liberal interpretation of the phrase “accidental means”
in insurance policies, construing the term to be synonymous with “accidental result.” Russell,
108 Ill. App. 3d at 420 (citing Taylor, 11 Ill. 2d at 230)). In Illinois, “the concept of causation
with respect to the analysis of life insurance policies is more circumscribed than in tort law . . .
only the immediate cause of the insured’s death matters . . . not any underlying illness or
infirmities that might have contributed to the death by producing the conditions necessary for
death to occur.” Schroeder v. Minnesota Life Ins. Co., Case No. 06-2915, 2007 WL 1169706
at*2-4 (N.D. Ill. 2007) (citing Russell v. Metro. Life Ins. Co., 108 Ill. App. 3d 417 (1982)). In
other words, Illinois courts “need not seek out . . . the cause of the cause.” Russell, 108 Ill. App.
6
3d at 419 (citing Marsh v. Metropolitan Life Ins. Co., 70 Ill. App. 3d 790, 796 (1979)). Since
contract language that is otherwise ambiguous may become unambiguous “because it has
acquired an established legal meaning,” the Court will first look to Illinois cases interpreting
accidental injury provisions in insurance policies. Rich v. Principal Life Ins. Co., 226 Ill. 2d 359,
373 (2007).
In Marsh v. Metropolitan Life Insurance Company, the appellate court reversed a
judgment in favor of the insurer in a suit for additional indemnity under an accidental death
provision in the insurance policy. 70 Ill. App. 3d 790, 796 (1979). The insured died as a result of
a heroin overdose. The policy provided:
If, while insured under the Group Policy for insurance for Death or
Dismemberment by Accidental Means, the Employee sustains bodily injuries
solely through accidental means, and within 365 days thereafter suffers (loss of
life) as a direct result of such bodily injuries independently of all other causes, the
Insurance Company shall pay the amount of insurance specified for such loss . . .
provided, however, that in no case shall any payment be made for death or any
other loss which is:
(A) caused or contributed to by disease or bodily or mental infirmity, or by
medical or surgical treatment or diagnosis thereof, or
(B) caused by or resulting from intentional self-destruction or intentionally
self-inflicted injury, while sane or insane.
Marsh, 70 Ill. App. 3d at 791 n.1 (emphasis added).
The court noted that “[u]nder the Illinois cases recovery is permitted for a death if that result is
accidental even though the means of destruction, here the injection of heroin, is intentional.” Id.
Reversing the judgment in favor of the insurer, the court concluded that the insured’s death
“from an unintended overdose of heroin” was an injury that “must be regarded as an ‘accident’ as
a matter of law in interpreting the instant insurance policy.” Id. at 794.
In Russell v. Metropolitan Life Insurance Company, the appellate court affirmed the grant
of summary judgment in favor of the plaintiff in a suit for additional indemnity under an
7
accidental death provision in the life insurance policy. 108 Ill. App. 3d 417 (1982). In that case,
the insured was found dead in his truck next to a bottle of vodka. The parties stipulated that the
insured’s death resulted from the consumption of a lethal quantity of alcohol. Id. at 418. The
insurance policy provided for additional indemnity “for an insured employee who sustained
‘bodily injuries solely through accidental means’” and excluded from coverage deaths “caused or
contributed to by disease.” Id. Affirming the trial court’s grant of summary judgment in favor of
the plaintiff, the court reasoned:
In the present case, the immediate cause of decedent’s death was the lethal content
of alcohol in his body. While alcoholism might have provided the desire to drink,
mere desire does not stop a heart or cause the lungs to cease functioning.
Therefore, alcoholism can only be considered a remote cause and not a
contributing cause of death. Had defendant submitted evidence that alcoholism
had rendered decedent’s body less capable of surviving the dose of alcohol
ingested, there would have been a question as to whether a disease contributed to
decedent’s death. No such evidence was presented.
Russell, 108 Ill. App. 3d at 419.
In Carney v. Paul Revere Life Insurance Company, the appellate court affirmed the trial
court’s grant of summary judgment in favor of the insured in a suit for additional coverage under
a disability insurance policy. 359 Ill. App. 3d 67 (2005). The insured, a surgeon, developed
pronator teres syndrome (similar to carpal tunnel syndrome) as a result of repetitive trauma from
performing surgery. Id. at 71. The disability insurance policy provided benefits through age 65
for total disability due to “sickness” and lifetime benefits for total disability due to “injury.” The
policy defined “injury” as “accidental bodily injury sustained while this policy is in force,”
whereas “sickness” was defined as “sickness or disease which first manifests itself while this
policy is in force.” Id. at 69. The issue before the appellate court was “whether pronator teres
syndrome, from which Dr. Carney suffers, was caused by ‘sickness,’ in which case Dr. Carney
has received the policy’s full benefit, or alternatively, whether it was caused by an ‘accidental
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bodily injury,’ in which case Dr. Carney is entitled to receive a lifetime benefit pursuant to the
policy schedule.” Id. at 72-73.
On appeal, the insurer argued that the trial court erred in classifying the insured’s
pronator teres syndrome as an injury because “he did not sustain any discrete trauma that
resulted in his neuropathy, nor did an unusual event or cataclysmic occurrence trigger
[plaintiff’s] condition.” Id. at 73. The court was persuaded by the Illinois Supreme Court’s
opinion in Zurich Insurance Company v. Raymark Industries, Inc., 118 Ill. 2d 23 (1987), which
held that “a ‘bodily injury’ occurs when asbestos fibers are inhaled and retained in the lung.”
Applying Zurich to Paul Revere’s disability policy, the appellate court stated:
We find Zurich instructive. As in Zurich, where each inhalation of asbestos was
found to constitute a “bodily injury,” here, we find that each repetitive trauma
experienced by [plaintiff] was a “bodily injury.”
Carney, 359 Ill. App. 3d at 75.
Finally, in Rich v. Principal Life Insurance Company the Illinois Supreme Court affirmed
the appellate court’s reversal of the trial court’s grant of summary judgment in favor of the
insured in a suit for benefits under a disability insurance policy. 226 Ill. 2d 359 (2007). In that
case, the insured injured his wrist loading a tire onto a truck. After surgery to repair a torn
ligament, the insured developed an infection around the incision. Id. at 363-64. Treatment with
antibiotics failed, and a subsequent surgery was required to remove necrotic portions of the bone.
Two years after the initial surgery, the insured underwent a wrist fusion surgery. Id. at 364-65.
The disability insurance policy provided monthly benefits “if Total Disability (as that
term is defined in this policy) of the Insured commences while the Policy is in force.” Id. at 362.
The policy defined “Total Disability” as “the complete inability of the Insured due to Injury or
Sickness to perform any and every duty pertaining to an occupation . . . .” Id. The policy further
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provided that “INJURY means accidental bodily injury sustained by the Insured while this Policy
is in force. Injury which is a direct or indirect result of physical or mental infirmity, illness or
disease of any kind, or medical or surgical treatment therefor or Injury which results in Total
Disability which commences more than 90 days after the date of the Injury is sustained will be
deemed to be Sickness.” Id. The policy provided for lifetime benefits if the insured’s disability
resulted from an “injury,” but limited benefits to five years if the disability was the result of
“sickness.” Id. at 363. The plaintiff sued after he was denied lifetime benefits.
The appellate court reversed the trial court’s grant of summary judgment for the insured,
holding that the insured’s claim fell within the definition of “sickness” under the policy’s 90-day
limitations period and “medical or surgical treatment” provision. Id. at 375. The Illinois Supreme
Court agreed:
The controlling principles are widely recognized. The secondary results of
an accident do not break the causal connection thereto. “Accordingly, the fact that
an insured incurs an infection or disease following an accident does not break the
thread of causation from the accident to the ultimate result where such infection
or disease is the result of the accident.” Couch on Insurance 3d § 139:30, at 13968 through 139-69 (1998). In other words: “If the insured has received an injury
covered by the contract which has necessitated an operation, the performance of
the operation does not, in itself, constitute an independent intervening cause nor
prevent the accident from remaining the proximate cause of death [or disability].”
1B J. Appleman & J. Appleman, Insurance Law & Practice § 412, at 175-76
(1981). . . . [W]here an accidental injury leads to medical complications, which in
turn lead to the covered loss, the “accident” is the event that caused the original
injury—the “accident” is not the development of medical complications. Jurrens
v. Hartford Life Insurance Co., 190 F.3d 919, 923 (8th Cir. 1999) (applying South
Dakota law).
Rich, 226 Ill. 2d at 376.
(b) Dr. Bosacker’s Report and Dr. Frederick’s Deposition
In the instant case, the parties have presented conflicting evidence as to the cause of
Michael’s death. Both parties agree that Michael began seizing at Rose Garden and subsequently
10
stopped breathing. ECF Doc. 16, at ¶ 21; ECF Doc. 24, at ¶ 21. Reports prepared by paramedics
during transport and physicians at the hospital state that a physical exam of Michael was
“unremarkable” and he presented with “no signs of trauma.” ECF Doc. 16, at ¶¶ 22, 24; ECF
Doc. 24, at 5. However, those reports also indicate that paramedics aspirated “foreign matter”
from Michael’s airway and the emergency room physician observed large amounts of vomit on
his face. ECF Doc. 24, at ¶¶ 11-12; ECF Doc. 28, at 7-8.
Defendant’s medical expert, Dr. Bosacker, submitted a declaration summarizing
Michael’s medical records and opining on the cause of his death. ECF Doc. 28-1. According to
Dr. Bosacker, “the emergency department records indicate Mr. Mitchell was breathing
spontaneously after being found seizing and that he stopped breathing at 1720.” Id. at 4. The
report states that “there was no indication . . . that his airway was occluded” and “no
documentation of removal of foreign material from Mr. Mitchell’s airway that may have been
blocking his airway or causing him to choke.” 2 Id. Dr. Bosacker opined that “[t]he cause of Mr.
Mitchell’s death is not certain” and “[a]ny of [his medical conditions] or an unrecognized
diagnosis may have caused his death.” Id. Her report concludes that the records she reviewed
were “consistent with and support” the cause of death identified on the death certificate, which
indicated “Mr. Mitchell’s cause of death was seizure disorder with contribution from deep
venous thrombosis and hypertension . . . .” Id. at 5.
Treating physician Dr. Richard Frederick’s deposition testimony reveals a difference of
opinion as to the cause of Michael’s death. After reviewing the EMT and hospital records, Dr.
Frederick testified that the paramedics’ attempt to intubate Michael was unsuccessful and they
2
Dr. Bosacker’s conclusion that “there was no indication” and “no documentation” of an occluded airway or
removal of foreign material is unsupported by the record. See ECF Doc. 16-14, at 5 (AMT record indicating airway
was “partially obstructed” and indicating the obstruction was “vomitus”).
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removed aspirated 3 foreign material from his airway. ECF Doc. 18-9, at 6. This aspirated foreign
material—either food or vomit—can significantly compromise respirations in small amounts,
and large amounts of aspirate can completely block the airway. Id. at 7. Dr. Frederick stated that
he did not notice any traumatic injuries on Michael. Id. at 8. He disagreed with the coroner’s
determination that Michael’s death was caused by seizure disorder, stating that while seizure
disorder “may have played a role into it . . . a seizure should not cause you to die” unless you
seize for a very long time. Id. at 9. He acknowledged that Michael’s quadriplegia and seizure
disorder decreased his ability to protect his airway, and his gastroesophageal reflux disease “put
him in a higher risk for vomiting.” Id. at 11, 17. Although Dr. Frederick had no independent
recollection of Michael’s treatment, he “would have assumed that his cause of death was a
respiratory arrest likely due to the aspiration” based on his review of the hospital records. Id.
(c) Michael Sustained an Accidental Injury
Minnesota Life claims that “[t]he only injury shown by the evidence is [Michael’s]
broken neck, suffered at Kickapoo Creek in July 2002 that resulted in his tetraplegia.” ECF Doc.
16, at 15. Since Michael injured his neck five years before his death, Minnesota Life contends
that his injury fell “squarely outside of the Group Policy’s AD&D coverage” requirement that
death occur within 365 days of the injury. Id. In support of its position, Minnesota Life points to
the paramedic and hospital records that indicate Michael did not display any signs of physical
trauma. See ECF Doc. 16, at ¶¶ 22, 24. Minnesota Life argues that “[i]n the absence of any
evidentiary link to the underlying basis for the aspiration, whether [Michael] aspirated fails to
3
Aspiration is defined as: 1. the drawing of a foreign substance, such as the gastric contents, into the respiratory
tract during inhalation. 2. removal by suction, using an aspirator, as of excess fluid or gas from a body cavity or of a
specimen for biopsy. Aspiration Definition, DORLANDS.COM, http://dorlands.com/def.jsp?id=100009589 (last visited
July 29, 2016) Here, Plaintiff and Dr. Frederick use the two definitions interchangeably, i.e., “paramedics aspirated
[suctioned] foreign material from his airway” and “Michael aspirated [vomited] into his airway.”
12
establish evidence of any injury or basis for death that is relevant to whether his death comes
within the AD&D coverage.” ECF Doc. 28, at 7. Because Michael did not exhibit signs of
physical trauma, Minnesota Life contends that he did not suffer an “injury” as required for
coverage under the AD&D policy.
Minnesota Life’s argument that Michael did not suffer an injury because he did not
exhibit visible signs of physical trauma is unsupported by Illinois case law interpreting the term
“accidental injury” in the context of life and disability insurance policies. In Marsh, the appellate
court held that the insured’s death from an overdose of heroin fell within the policy’s coverage
for death that results directly from “bodily injuries solely through accidental means . . . .” 70 Ill.
App. 3d at 796. Similarly, in Russell, the appellate court held that the insured, an alcoholic whose
death resulted from consumption of a lethal amount of alcohol, died solely through “accidental
means” within the meaning of the insurance policy providing additional indemnity for “bodily
injuries solely through accidental means.” 108 Ill. App. 3d at 417-19. The court acknowledged
that alcoholism was a “disease” within the meaning of the policy exclusion for deaths “caused or
contributed to by disease,” but reasoned that alcoholism “can only be considered a remote cause
and not a contributing cause of death.” Id. at 419 (noting that “[w]hile alcoholism may have
provided the desire to drink, mere desire does not stop a heart or cause the lungs to cease
functioning”).
Notably absent from the discussion in Marsh or Russell is a requirement that the insured
must present with visible signs of physical “trauma” in order to establish an injury under the
policy. Cf. Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491 (1934) (affirming judgment for
insurer where decedent suffered sunstroke while playing golf, reasoning that policy providing
recovery for death resulting from injuries effected through “external, violent and accidental
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means” indicated the insurer’s “carefully chosen words” distinguishing accidental means from
accidental results) (emphasis added). And unlike the policy in Landress, Minnesota Life’s policy
does not limit coverage to accidental injuries which are “external” or “violent.” Id.
In Carney, the appellate court rejected the insurer’s argument that the trial court erred in
classifying the insured’s pronator teres syndrome as an injury because “he did not sustain any
discrete trauma that resulted in his neuropathy, nor did an unusual event or cataclysmic
occurrence trigger Dr. Carney’s condition.” 359 Ill. App. 3d at 73. Rather, the court found that
the insured’s disability “was the result of repetitive trauma, each of which may be classified as an
‘injury.’” Id. at 76. Finally, in Rich the Illinois Supreme Court distinguished the insured’s injury
from the surgeon’s injury in Carney, stating that Carney was inapposite “because [it] did not
involve a plaintiff’s injury that resulted from medical or surgical treatment.” 226 Ill. 2d at 359.
When “an accidental injury leads to medical complications, which in turn lead to the covered
loss, the ‘accident’ is the event that caused the original injury—the ‘accident’ is not the
development of medical complications.” Id. at 376 (citing Jurrens v. Hartford Life Insurance
Co., 190 F.3d 919, 923 (8th Cir. 1999)). Thus, because the insured became disabled more than 90
days after the injury, the claim fell outside of the policy’s time limitation and was properly
denied. Id. at 376-77.
Marsh, Russell, and Carney are at odds with Minnesota Life’s interpretation of “injury.”
In both Marsh and Russell, the insureds died as a result of an overdose. In both cases, it is
reasonable to assume that the decedents lacked visible signs of physical trauma. See Marsh, 70
Ill. App. 3d at 791 (insured found dead, sitting of floor of bedroom with needle in arm); Russell,
108 Ill. App. 3d at 418 (insured found dead in his truck next to bottle of vodka).Yet in both cases,
the court found that the insured suffered an “accidental injury” within the meaning of the life
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insurance policies. Similarly, the court in Carney found that the surgeon’s pronator teres
syndrome was an “injury” within the meaning of the disability insurance policy, despite the fact
that the insured “did not sustain any discrete trauma . . . unusual event or cataclysmic occurrence
. . . .” 359 Ill. App. 3d at 73. And Rich is distinguishable from the instant case because Michael’s
aspiration was not the result of medical or surgical treatment. Rich, 226 Ill. 2d at 359. Here, it is
undisputed that Michael was found unresponsive with vomit on his face, that he was initially
breathing on his own but then stopped breathing, and the paramedics suctioned his airway and
aspirated “foreign material.” See ECF Doc. 28, at 18. From these facts, Michael suffered an
“injury” within the meaning of the policy. Whether his injury was the immediate cause of his
death, and whether his death was direct and independent of disease or bodily infirmity, are
separate inquires that the Court will address below.
(2) A Material Dispute of Fact Remains as to Whether Michael’s Accidental Injury Caused
his Death
Minnesota Life’s AD&D policy requires that “death or dismemberment results . . . from
an accidental injury . . . .” ECF Doc. 16, ¶ 10. When the cause of an insured’s death is at issue,
courts are “not required to search beyond the immediate proximate cause to find other causes
more remote.” Marsh, 70 Ill. App. 3d at 794. In other words:
[T]he proximate and not a remote cause is the one to which the law looks. . . . The
policy in the case at bar does not go so far as to require the court to search beyond
the active, efficient, procuring cause [t]o a cause of a cause. When one single
predominant agency is disclosed, directly producing as a natural and probable
result the injury, which is accidental, and which operates independently of other
like causes, then the effectual means required by the policy have been found.
Marsh, 70 Ill. App. 3d at 795 (quoting Bohacker v. Travelers’ Ins. Co., 102 N.E.
342, 344 (1913).
Here, the parties disagree as to the cause of Michael’s death. Plaintiff claims that
Michael’s death was caused by aspirated vomit obstructing his airway; Defendant asserts that
15
Michael died as a result of his seizure disorder. Although Plaintiff and Defendant offer differing
opinions as to the most likely cause of Michael’s death, they both concede that the actual cause
of death is uncertain. Compare Bosacker Declaration, ECF Doc. 28-1, at 4 (“The cause of Mr.
Mitchell’s death is not certain. . . . Any of these [medical conditions] or an unrecognized
diagnosis may have caused his death.”), with Frederick Deposition, ECF Doc. 18-9, at 12 (“[M]y
opinion was that [aspiration] was the most likely cause of death looking at that scenario, but it
could have been any number of things.”). Thus, a factual dispute exists as to the cause of
Michael’s death. The factual dispute is material because Plaintiff “has the burden of proving that
decedent died as a result of an accidental bodily injury within the terms of the subject policy.”
Wahls v. Aetna Life Ins. Co., 122 Ill. App. 3d 309, 311 (1983). The differing opinions and
conclusions of Dr. Bosacker and Dr. Frederick indicate that the medical records are “subject to
conflicting interpretations.” See Rodeo v. Gillman, 787 F.2d 1175, 1177 (7th Cir. 1986).
Therefore, summary judgment is inappropriate. Waldridge v. American Hoechst Corp., 24 F.3d
918, 921 (7th Cir. 1994) (non-movant need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact).
(3) Because a Material Dispute of Fact Remains as to the Cause of the Insured’s Death, the
Court Cannot Determine Whether the Policy’s Disease or Bodily Infirmity Exclusion
Applies
Having established that a material dispute of fact remains as to the cause of Michael’s
death, it may seem axiomatic that the Court cannot determine whether Michael’s death resulted
“directly and independently of disease or bodily infirmity.” However, there are notable
distinctions between the two inquiries that merit discussion. Specifically, the two inquiries differ
as to which party bears the burden of establishing the causal relationship (or lack thereof)
between the “disease or bodily infirmity” and death.
16
Plaintiff asserts that “[t]he burden is on the insurer to prove application of an exclusion
from coverage.” ECF Doc. 24, at 12. Minnesota Life argues that Plaintiff “inaccurately conflates
the AD&D coverage requirements with coverage exclusions. . . . The definition of accidental
death as independent from bodily infirmity is not an ‘exclusion’ that [Defendant] must prove to
defeat recovery but rather a coverage term that Plaintiff must satisfy to bring Mitchell’s death
within the limited AD&D coverage.” ECF Doc. 28, at 25. Thus, the issue is whether the policy’s
reference to “disease or bodily infirmity” is a coverage term or a coverage exclusion. If it is a
coverage term, the Plaintiff bears the burden of establishing the loss falls within the defined
scope of coverage. On the other hand, if the “disease or bodily infirmity” provision is a coverage
exclusion, the burden rests with Minnesota Life to show that the exclusion applies. See St.
Michael’s Orthodox Catholic Chruch v. Preferred Risk Mut. Ins. Co., 146 Ill. App. 3d 107, 109
(1986) (“[T]he insured has the burden of proving that his loss falls within the terms of his policy.
. . . Once the insured has brought himself within the terms of his policy, then the insurer must
prove the applicability of an exception in the coverage if it wishes to escape liability.”); Rich,
226 Ill. 2d at 379 (“An exclusion in an insurance policy serves the purpose of taking out persons
or events otherwise included within the defined scope of coverage.”). Recall that the policy
provided:
Accidental death or dismemberment by accidental injury as used in this
supplement means that your death or dismemberment results, directly and
independently of disease or bodily infirmity, from an accidental injury which is
unexpected and unforeseen.
The injury must occur while your coverage under this supplement is in force.
Your death or dismemberment must occur within 265 days after the date of the
injury and while your coverage under this supplement is in force.
In no event will we pay the accidental death or dismemberment benefit where
your death or dismemberment results from or is caused directly by any of the
following:
(1) intentionally self-inflicted injury, suicide or attempted suicide, whether
sane or insane; or
17
(2) your commission of an assault or a felony or being engaged in an illegal
occupation; or
(3) bodily or mental infirmity, illness or disease; or
(4) medical or surgical treatment; or
(5) war or any act of war, whether declared or undeclared if you are
currently serving in the military or your military service terminated no
longer than six months prior to your dismemberment.
ECF Doc. 16-1, at 27 (emphasis added).
Viewed in isolation, Minnesota Life’s artful inclusion of “infirmity” and “disease” in both
the first sentence (the “coverage clause”) and the last sentence (the “exclusion clause”) makes
the emphasized language susceptible to categorization as both a coverage term and a coverage
exclusion. In order to “ascertain the intent of the parties and the meaning of the words used in the
insurance policy, the court must construe the policy as a whole . . . .” Ins. Corp. of Hanover v.
Shelborne Associates, 389 Ill. App. 3d 795, 799 (2009). Here, the policy states that the accidental
death and dismemberment benefit becomes payable “upon receipt at our home office of written
proof satisfactory to us that you died or suffered dismemberment as a result of an accidental
injury.” ECF Doc. 16-1, at 27. Construing the policy as a whole, Minnesota Life’s policy
provides additional indemnity for accidental injuries resulting in death or dismemberment. Thus,
Plaintiff must show that the accidental injury, aspiration of vomit, resulted in Michael’s death.
Johnson Press of Am., Inc. v. N. Ins. Co. of New York, 339 Ill. App. 3d 864, 871–72 (2003)
(“[T]he insured bears the initial burden of presenting, through the papers on file, sufficient facts
establishing a prima facie case.”).
Once the insured establishes that the loss falls within the scope of coverage, “the burden
shifts to the insurer to show that the loss resulted from a peril expressly excluded from
coverage.” Id. (citing Wallis v. Country Mutual Insurance Co., 309 Ill. App. 3d 566 (2000));
Santa's Best Craft, LLC v. St. Paul Fire & Marine Ins. Co., 611 F.3d 339, 347 (7th Cir. 2010)
18
(“Insurers have the burden of proving that an exclusion applies.”); Pekin Ins. Co. v. Miller, 367
Ill. App. 3d 263, 267 (2006) (“It is the insurer’s burden to affirmatively demonstrate the
applicability of an exclusion.”). “An exclusion in an insurance policy serves the purpose of
taking out persons or events otherwise included within the defined scope of coverage.” Gen. Ins.
Co. of Am. v. Robert B. McManus, Inc., 272 Ill. App. 3d 510, 514 (1995); Rich, 226 Ill. 2d at 379
(same). Here, the policy contains five enumerated limitations to coverage for accidental injuries
resulting in death. Those five limitations, including the limitation for death resulting from bodily
or mental infirmity, illness or disease, serve “the purpose of taking out events otherwise included
within the defined scope of coverage.” Id. Minnesota Life’s argument—that the use of “disease
or bodily infirmity” in both the coverage clause and exclusion clause operates to shift the burden
to Plaintiff—is unsupported by case law and the rules of contract construction.
First, Minnesota Life’s position would create an arbitrary distinction where none
currently exists. Under Minnesota Life’s reading of the policy, insureds would have the burden of
showing that the accidental death was not the result of “disease or bodily infirmity,” but
Minnesota Life would have the burden of establishing that the accidental death was the result of
“bodily or mental infirmity, illness or disease.” Such a result would create unnecessary
confusion, place conflicting burdens on the litigants, and require courts to draw a distinction
between illness, disease, and infirmity.
Second, cases interpreting policies similar or identical to Minnesota Life’s policy have
consistently treated the clause as an exclusion from coverage. In Marsh, the policy provided
coverage if an “Employee sustains bodily injuries solely through accidental means, and within
365 days thereafter suffers (loss of life) as a direct result of such bodily injuries independently of
all other causes . . . .” Marsh, 70 Ill. App. 3d at 791 n.1 (emphasis added). The policy also
19
contained an exclusion: “however, that in no case shall any payment be made for death or any
other loss which is . . . caused or contributed to by disease or bodily or mental infirmity . . . .” Id.
Despite the fact that the coverage clause included the phrase “independently of all other causes,”
the court stated that “it is the duty of the insurer to plead and prove a particular loss is within the
exception of an exclusionary clause.” Id. at 794.
Similarly, in Rich, the policy provided for lifetime benefits for disability caused by
“Injury,” but limited benefits to five years for “Injury which is a direct or indirect result of
physical or mental infirmity, illness, or disease of any kind, or medical or surgical treatment
therefor . . . .” 226 Ill. 2d at 362. The Illinois Supreme Court noted:
In the present case, Christ appears conclusive on this point and indicates that
plaintiff incurred “accidental bodily injury.” (citation omitted) Accordingly,
plaintiff would be entitled to lifetime disability benefits absent any limitations or
exclusions in the policy. Indeed, reading the policy as a whole, the exclusion
would be superfluous if it limited losses which the policy's general insuring clause
did not cover. “An exclusion in an insurance policy serves the purpose of taking
out persons or events otherwise included within the defined scope of coverage.”
(citation omitted). Therefore, the issue is whether or not the injury falls within the
policy exclusion for illness or disease, or medical or surgical treatment therefor.
Rich v. Principal Life Ins. Co., 226 Ill. 2d 359, 379 (2007) (emphasis added).
As in Rich, Minnesota Life’s policy exclusion for “bodily or mental infirmity, illness or disease”
would be superfluous if it sought to limit losses that were not covered in the general insurance
clause. Id.; Gen. Ins. Co. of Am. v. Robert B. McManus, Inc., 272 Ill. App. 3d 510, 514 (1995). In
other words, if the phrase “directly and independently of disease or bodily infirmity” is “a
coverage term that Plaintiff must satisfy to bring Mitchell’s death within the limited AD&D
coverage,” the similarly worded exclusion for “bodily or mental infirmity, illness or disease”
would be unnecessary and redundant. Minnesota Life’s strained reading of the policy runs
counter to the rule that “[i]nsurance policies should be construed as a whole, giving effect to
20
every part, as far as it is possible.” Hartford Acc. & Indem. Co. v. Case Found. Co., 10 Ill. App.
3d 115, 121 (1973).
Finally, Minnesota Life’s interpretation of “directly and independently of disease or
bodily infirmity” as a coverage term runs counter to Minnesota Life’s own interpretation of the
same policy in Schroeder v. Minnesota Life Ins. Co., Case No. 06-2915, 2007 WL 1169706 at *1
(N.D. Ill. 2007). In that case, the insured had a seizure while driving. She pulled her car to the
side of the road, but before witnesses could assist her, she unintentionally pressed the accelerator
and drove into a tree. The insured died from her injuries shortly after. Id. The beneficiary
brought suit against Minnesota Life and moved for summary judgment before the close of
discovery. Minnesota Life’s response argued that “the disease exclusion of the policy applies
because the insured’s seizure disorder played a role in her death.” Schroeder, Case No. 06-2915,
ECF Doc. 20, at 8 (N.D. Ill. 2007) (emphasis added). Notably absent from Minnesota Life’s
response was any indication that the “disease or bodily infirmity” clause was a coverage
requirement that plaintiff must prove. The court granted summary judgment in favor of the
plaintiff, stating:
Nicholson may have had a disease—a seizure disorder—and that disease might
have led to her depressing the accelerator while on the side of the road, which in
turn led her to collide with the tree. That, however, does not make the seizure
disorder a cause of her death within the meaning of her insurance policy. As the
Court stated at the outset of this discussion, with an insurance policy term of this
type, only the immediate cause of death matters, not any underlying illness or
infirmities that might have contributed to the death by producing the conditions
necessary for death to occur.
Id. at *4.
21
In sum, the insured’s aspiration of vomit constituted an injury within the meaning of the
AD&D policy. However, a material dispute of fact remains as to the immediate cause of
Michael’s death. Because the factual dispute bears directly on the issue of whether Michael’s
injury was the immediate cause of his death, summary judgment is not appropriate.
CONCLUSION
For the reasons stated above, Defendant’s Motion [15] for Summary Judgment is Denied.
Signed on this 9th day of August, 2016.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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