Wichita Firemen's Relief Association v. Kansas City Life Insurance Company

Filing 401

MEMORANDUM AND ORDER finding as moot 368 Motion to Exclude; finding as moot 216 Motion to Supplement; denying 204 Motion for Order; finding as moot 318 Motion in Limine; granting 341 Motion for Summary Judgment; denying 342 Motion for Summary Judgment. Signed by Magistrate Judge Kenneth G. Gale on 2/14/2014. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WICHITA FIREMEN’S RELIEF
ASSOCIATION,

)
)
)
Plaintiff,
)
)
v.
)
)
KANSAS CITY LIFE INSURANCE )
COMPANY,
)
)
Defendant. )
______________________________ )

Case No. 11-1029-KGG

MEMORANDUM & ORDER
Before the Court are the various dispositive motions filed by the parties,
along with corresponding exhibits, responses and replies:
a.

Plaintiff’s “Motion for Protective Order and a
Determination as a Matter of Law . . . that Plaintiff
is Entitled to a de novo Review of Defendant’s
Decision to Deny Coverage” and memorandum in
support (Docs. 204, 214);

b.

Defendant’s Motion for Summary Judgment and
memorandum in support (Docs. 341, 349); and

c.

Plaintiff’s Motion for Summary Judgment and
memorandum in support (Doc. 342, 347).

1

Plaintiff’s claim is for payment of an Accidental Death and Dismemberment
insurance benefit arising out of the death of a Wichita firefighter which occurred as
a result of a heart attack suffered while fighting a fire. Because the undisputed
material facts establish that the decedent’s death did not “result directly and
independently of all other causes from accidental bodily injuries” within the
meaning of the policy coverage provision, there is no coverage for the claimed loss
under the insurance policy.
Additionally, the Court finds that the existence of the attachment of a
Statement of ERISA Rights to the policy (a policy which is exempt from ERISA
by law) has no substantive impact on the determination of the central legal issue in
this case. The Court further finds that Defendant included this ground for denial in
both the initial claim denial and the appeal denial, and that Defendant would be
allowed to rely on this reason for denial before this Court even if it had not done
so. As such, the Court GRANTS Defendant’s Motion for Summary Judgment.1
(Doc. 341.) Plaintiff’s “Motion for Protective Order and a Determination as a
Matter of Law . . . that Plaintiff is Entitled to a de novo Review of Defendant’s

1

Also pending are Plaintiff’s “First Motion for an Addition to the Administrative
Record” (Doc. 216), Defendant’s “Motion in Limine to Exclude Evidence Relating to
Settlement Negotiations” (Doc. 318), and Plaintiff’s “Motion to Exclude Dr. Arnold
Meshkov’s Testimony and Report from Evidence” (Doc. 368). Because the Court is
granting summary judgment herein, these motions are all DENIED as moot.
2

Decision to Deny Coverage” (Doc. 204) and Motion for Summary Judgment (342)
are both DENIED.
BACKGROUND
This is a breach of contract claim relating to insurance coverage for Captain
Urban Eck (“Decedent”), a fire fighter for the City of Wichita, Kansas. Plaintiff
contends that Defendant breached its duties under the policy of insurance it issued
for the Decedent. Plaintiff contends that Decedent’s death should be considered
“accidental” under the policy at issue. Plaintiff contends that Defendant
voluntarily made the Employee Retirement Income Security Act (“ERISA”) part of
the applicable policy and failed to provide certain rights required by ERISA,
including the right to a “full and fair” appeal. Plaintiff further contends that
improperly Defendant added “lack of an accident” as new reason for denial of
coverage after the litigation commenced. Defendant argues that ERISA does not
apply to the insurance policy, that Plaintiff’s death was not accidental within the
meaning of the policy, and that it maintained this position throughout the insurance
claim and appeal process.
I.

UNDISPUTED FACTS.
The following facts are material and undisputed for purposes of the above-

referenced motions.
A.

Decedent’s Employment and Training.

3

Decedent was a firefighter employed by the City of Wichita Fire Department
(“WFD”). He was hired as a firefighter in 1982, was promoted to Lieutenant in
1989, and promoted to Captain in 1994. It is uncontroverted that Decedent was an
experienced firefighter who received as much training as other firefighters in the
Wichita Fire Department.
WFD firefighters are required to master basic fire suppression skills,
including climbing ladders, operating equipment, and employing protective
equipment. WFD firefighters must have the ability to operate in conditions that are
immediately dangerous to life and health, such as may arise during a structure fire.
This is covered with WFD firefighters during their training. WFD firefighters are
also aware of the physically and emotionally stressful nature of their work.
B.

The Parties Enter into an Insurance Contract.

Plaintiff is the Wichita Firemen’s Relief Association (“WFRA” or
“Plaintiff”), which is “composed of the regularly appointed members of the
Wichita Fire Department” in Wichita, Kansas. (Doc. 347-20, sealed, at 3.)
Plaintiff is organized pursuant to the Firefighters Relief Act, K.S.A. § 40-1701, et
seq. The purpose of Plaintiff is “to receive, use and disburse funds for the benefit
of members of the Association or their beneficiaries.” (Id.) Defendant Kansas
City Life Insurance Company (“KCL” or “Defendant”) is an insurance corporation

4

“organized and existing pursuant to the laws of the state of Missouri ” and
registered to conduct business in Kansas. (Doc. 75, at 1.)
The parties entered into a group policy insurance contract on September 1,
2001, policy number GL-7389. Plaintiff WFRA was the named beneficiary under
the policy. Effective April 1, 2007, the parties reached an agreement to add
accidental death and dismemberment insurance (“AD&D Rider”). Under the
terms, conditions, and exclusions of this policy, Decedent Urban Eck was insured
against death, disability, and death by accidental means. The AD&D coverage was
in effect on the date of Decedent’s death, January 2, 2010. Plaintiff paid the
premiums to Defendant for the policy.
The “Benefit” section of the AD&D Rider stated, in relevant part, that the
benefit would be paid upon receipt of satisfactory proof that the loss “results
directly and independently of all other causes from accidental bodily injuries,” the
“accident which caused the loss” occurred while the individual was insured under
the rider, and the loss occurred within 180 days “after the accident.” (Doc. 215-11,
at 11-12.) The “Exclusions” of the AD&D Rider stated in part that “No amount
will be payable for loss caused by, contributed to or resulting from . . . (5) bodily
or mental illness or disease of any kind, or medical or surgical treatment of the
illness or disease[.]” (Id., at 12.) Neither the policy nor the AD&D Rider include

5

definitions of “bodily injury,” “accident,” “accidental death,” “illness,” “accidental
bodily injuries” or “disease.”
C.

“Statement of ERISA Rights.”

The parties have differing interpretations as to whether or not the insurance
policy in controversy was issued with an attachment consisting of the “Statement
of ERISA Rights”/“Claim Procedures for Life Insurance Plans” attachment
(hereinafter referred to as “Statement of ERISA Rights”). (215-13.)
Matthew O’Connor, Defendant’s Assistant General Counsel for Investments,
testified that he “assumed” the Statement of ERISA Rights was made part of the
WFRA group insurance benefits policy. Jeffrey Seeman, Defendant’s Vice
President of Group Insurance, testified that he “believed” the standard form policy
would include a Statement of ERISA rights because “most” – but not all – group
insurance policies are provided by an employer and are covered by ERISA. Also,
Mr. Seeman and Cynthia Anderson, Defendant’s Assistant Vice President of Group
Underwriting, attested that “[a]t the time of the issuance” of the policy at issue,
“KCL’s normal and customary business practice was to attach the ‘Statement of
ERISA Rights’ to all insurance policies when issued, regardless of whether ERISA
is applicable to that specific policy.” (Doc. 347-27, at 3; Doc. 347-28, at 3.)
Plaintiff was not aware of the “Statement of ERISA Rights” pages until after
the litigation had commenced. (Doc. 364-9, at 13.) Further, at no time between

6

2001 and 2009 did members of Plaintiff’s Board believe that any of the
Association’s members were entitled to ERISA rights or protections. (Doc. 364, at
pg. 88, ¶ 91; Doc. 364-9, at 29.) Plaintiff has no evidence that it ever even
received the “Statement of ERISA Rights” during the relevant time period. (Doc.
364, at 89-90; Doc. 364-9, at 52-53.) For the purpose of this ruling, however, the
Court will assume that when the policy was delivered to the plaintiff it included the
two final pages, which the parties identify as associated with ERISA rights.
D.

Decedent fights a fire as part of his job duties.

On December 13, 2009, Decedent and approximately 70 other city
firefighters fought a two-alarm fire at Cedar Lakes Condominiums in Wichita,
Kansas. The building was a total fire loss. Decedent fought this fire for
approximately one hour of uninterrupted work under extreme conditions.
Although Decedent did not engage in firefighting under such conditions on a daily
basis as part of his job, the working conditions at the fire at issue were consistent
with Decedent’s training as well as an expected part of his job duties. Decedent
was not subjected to an unexpected manifestation of force at the subject fire. He
did not fall, did not have a portion of the structure collapse on him or under him,
and did not get hit by a portion of the structure.
Decedent and two of his crew did, however, report to rehab for medical
treatment following the fire. Acting WFD Lieutenant Paul Wiebe was one of the

7

officers working rehab during the subject fire. Wiebe observed that Decedent “had
an irregular heartbeat and his vitals would not come down to normal limits.”
MICT Michael Turner also worked rehab during the subject fire. Turner indicated
that Decedent was held in rehab as a result of an elevated heart rate that did not
exhibit normal recovery. Decedent’s heart rate did recover to the threshold limit.
Forty-five WFD firefighters were evaluated after the fire and three required
advanced assistance. All four members of Decedent’s crew were held in rehab for
at least 20 minutes. Decedent remained in rehab for approximately 45 minutes.
E.

Plaintiff’s Post-Fire Medical Treatment.

Progress notes regarding Decedent from cardiologist Dr. Wassim Shaheen
dated December 18, 2009, state that Decedent “today reports that the symptoms
started many years ago, however, since Sunday while working he noticed that his
heart has been racing faster than it usually does. The patient describes it as fast
beats.” Dr. Shaheen performed a transesophageal echocardiogram which showed
enlargement of Decedent’s left atrium and significant thickening of the posterior
leaflet of the mitral valve, which usually reflects myxomatous changes. The
echocardiogram indicated that Decedent had mitral valve prolapse with mitral
insufficiency. Decedent was diagnosed with severe mitral insufficiency secondary
to posterior leaflet mitral valve prolapse on December 19, 2009.

8

On Dec. 21, 2009, Dr. Shaheen performed a heart catheterization on
Decedent, determining that his coronary arteries did not have any blockage, but the
mitral valve needed repair. Surgery for the mitral valve repair occurred on
December 29, 2009, following Decedent’s admission to the hospital on December
28, 2009. During the surgery, mitral valve inspection indicated a myxomatous
valve with a largely detached posterior leaflet. In addition, at least 3 chordal
structures were disrupted. The surgeons were satisfied that Decedent’s repair was
adequate, but when they tried to take Captain Eck off of the bypass machine,
cardiac function was poor and the surgeons indicated that they struggled.
Decedent died on January 2, 2010, following his surgery.
The parties have advanced conflicting expert opinions regarding the cause of
Decedent’s death. Plaintiff contends it was the result of an acute rupture of the
chordae tendineae caused by extreme physical exertion while fighting the fire.
Defendant contends that Decedent suffered from chronic mitral valve disease that
worsened for several years and that “physical exertion was not the cause of his
severe chronic mitral regurgitation that led to chordal disruption and a partially
flail leaflet of the mitral valve.” Defendant further contends that Decedent “had a
massive acute myocardial infarct (or heart attack) caused by kinking and
obstruction of the decedent's circumflex coronary artery resulting from the mitral
valve annulus placement during mitral valve surgery.” (Doc. 349, sealed, at 23.)

9

For the purpose of this ruling, the Court assumes that plaintiff’s view of the
medical issues would prevail, and that Decedent’s death was the result of an acute
rupture of the chordae tendineae caused by extreme physical exertion while
fighting the fire.
F.

Plaintiff Files a Claim for AD&D Benefits and Appeals
Defendant’s Denial Thereof.

After Decedent’s death, Plaintiff filed claims for death benefits and AD&D
benefits under the policy. On February 17, 2010, Defendant paid the death benefit
claim directly to Plaintiff.
On February 26, 2010, Defendant denied the claim for AD&D benefits
relating to Decedent. Accidental injury is the primary coverage predicate of the
policy at issue. The denial letter, from Senior Claims Examiner Kelly
Wenninghoff, stated that Decedent’s “death was not caused directly and
independently of all causes from accidental injury as the insured’s underlying heart
condition, as well as circumstances surrounding the surgery, contributed to his
death and therefore, the applicable exclusions of the policy apply.”2 (Doc. 347-17,
sealed, at 2.) The letter continues that “benefits are payable if the loss results
directly and independently of all other causes from accidental bodily injuries.”
(Id.) The letter then includes reference to exclusion (5), “bodily or mental illness
2

There is some claim by Defendant that medical negligence caused or contributed
to Decedent’s death. Such a claim is not, however, supported by adequate evidence in the
present motions.
10

or disease of any kind or medical or surgical treatment of the illness or disease.”
(Id.)
On April 26, 2010, Plaintiff appealed Defendant’s denial of benefits under
the AD&D Rider. On June 10, 2010, the appeal was denied on the same grounds
as the initial request – that the benefit was precluded by policy exclusions which
applied to pre-existing medical conditions and medical negligence – while again
referencing exclusion (5). (Doc. 347-17, sealed, at 3-4.) The written denial of
Plaintiff’s appeal also states that Decedent’s “death did not result directly and
independently from accidental bodily injury.” (Id., at 3.)
II.

ISSUES.
1.

2.

III.

Was the injury at issue “accidental” under the terms of the relevant
insurance policy and will Defendant be allowed to rely on this reason
for denial of coverage under the AD&D rider?
Is Defendant precluded from arguing, and the Court from considering,
the failure of the primary coverage condition of the policy because of
the wording of the claims denial letters?

DISCUSSION.
A.

Standards on Motions for Summary Judgment.

The rules applicable to summary judgment are well-established and are only
briefly outlined here. Federal Rule of Civil Procedure 56(c) directs the entry of
summary judgment in favor of a party who “show[s] that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if sufficient evidence
11

exists “so that a rational trier of fact could resolve the issue either way” and “[a]n
issue is ‘material' if under the substantive law it is essential to the proper
disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th
Cir. 1998). When presented with a motion for summary judgment, the Court must
decide “whether there is the need for a trial – whether, in other words, there are any
genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If so, the Court cannot grant
summary judgment. Prenalta Corp. v. Colo. Interstate Gas Co., 944 F.2d 677,
684 (10th Cir. 1991).
Although the parties have filed cross-motions for summary judgment, the
legal standard does not change. See United Wats, Inc. v. Cincinnati Ins. Co., 971
F. Supp. 1375, 1382 (D. Kan. 1997). The Court's sole objective to determine
whether any disputes of material fact exist. See Harrison W. Corp. v. Gulf Oil
Co., 662 F.2d 690, 692 (10th Cir. 1981).
B.

Plaintiff Cannot Establish an “Accident” or “Accidental Bodily
Injury” Pursuant to the Terms of the Insurance Contract.

Benefits under the AD&D Rider of the insurance policy at issue required a
loss resulting directly and independently from an “accident” and “accidental bodily
injuries.” The contract states, in relevant part:

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The Company will pay the benefit shown below to you, if
living, or your beneficiary. The benefit will be paid
when satisfactory proof is received at the Home Office
that:
(1)

the loss described below results directly and
independently of all other causes from
accidental bodily injuries;

(2)

the accident which caused the loss occurred
while the individual was insured and

(3)

the loss occurred within 180 days after the
accident.

(Doc. 215-11, sealed, at 11-12.)
While “the word accident does not have a settled legal” definition, it does
have a “generally accepted meaning, which is the same whether considered
according to the popular understanding or the approved usage of language.”
Gilliland v. Cement Co., 104 Kan. 771, 773 180 P. 793, 794 (1919). “‘An accident
is simply an undesigned, sudden, and unexpected event, usually of an afflictive
character, and often accompanied by a manifestation of force.’” Whitaker v. State
Farm Mut. Auto. Ins., 13 Kan.App.2d 279, 282, 768 P.2d 320, 323 (1989)(quoting
Gilliland, 180 P. at 794). See also Pattern Instructions Kansas 4th ¶ 124.41 (2008)
(“PIK”)(setting forth the same definition of the word “accident”).
It is well established that in a claim under a policy for accidental death, the
plaintiff has the burden of proof to establish that “the death resulted from injury
due to an accident . . . .” Miller v. Prudential Ins. Co. of America, 183 Kan. 667,
13

670, 331 P.2d 310, 312 (Kan. 1958). The Court finds that Plaintiff is unable to do
so in the case at bar.
Defendant contends that Decedent “was merely performing his normal
duties as a firefighter when he confronted a structure fire and allegedly sustained
an injury to his heart.” (Doc. 349, at 53.) Defendant continues that Decedent
“drew on his training and performed the normal duties of a firefighter when he
responded to the December 13, 2009 structure fire at which he was allegedly
injured.” (Doc. 349, at 54.) Defendant further contends that Decedent “did not do
anything out of the ordinary at the fire, and did not experience an event such as
getting hit by a falling beam, slipping and falling, or having the floor collapse
beneath him.” (Doc. 349, at 55; Doc. 349-7, sealed, at 37; Doc. 350-2, at 9.)
Plaintiff responds by arguing that the activity Decedent engaged in at the
scene of the fire was “out of the ordinary” because he “had nearly one hour of
uninterrupted heavy or ‘extreme’ exertion [WFRA’s Fact No. 14 at Dkt. 347;
Additional Facts, infra, ¶ 214], under hazardous conditions. [WFRA’s Fact No. 10
at Dkt. 347; Additional Facts, infra, ¶ 210].” (Doc. 369, sealed, at 24.) Plaintiff
continues by arguing that, although Decedent was trained and employed as a
fireman, fighting fires should not be considered part of his typical job duties.
Fire calls make up only approximately 3.84% of the
Wichita Fire Department calls. [Ex. MM, attached
(WFD 2009 Annual Report & Statistics) at WFD 2; Ex.
OO, attached (Firefighter Affidavits)]. Captain Eck did
14

not ordinarily or normally spend his work day in
hazardous conditions trying to breathe in heavy smoke in
a full turnout of gear on a nine foot ladder using a chain
saw to cut a hole in a building with the heat of a two
alarm fire blazing around him. These conditions under
which he was exerting himself were external stressors on
his body. Ordinarily, 70 firefighters are not called out all
at once to do ‘normal’ or ‘ordinary’ job tasks at the
Wichita Fire Department. KCL has no evidence that
Captain Eck’s normal or ordinary day involved the same
hazardous activities, external stressors, or level of
exertion he undertook while fighting the Cedar Lakes
fire. And, Captain Eck’s crew was working under much
more stress than the other forty-two firefighters evaluated
at the Cedar Lakes fire; all four members of his crew
were held in rehab over 20 minutes; no other crews had
this statistic. [WFRA’s Facts Nos. 14, 15, 16, at Dkt.
347; Additional Facts, infra, ¶¶ 214, 215, 216].
(Doc. 369, sealed, at 24-25.)3
While the Court acknowledges that Decedent, like other Wichita firemen,
did not spend the majority of his work time fighting fires, the Court is unpersuaded

3

Plaintiff now argues for the first time that events occurring during the surgery
preceding Decedent’s death constitute an “accident,” providing a basis for coverage under
the policy at in question. (Doc. 347, sealed, at 58.) Plaintiff has provided no evidence to
establish medical malpractice. Further, there is no evidence or authority that an
unsuccessful surgery or complications occurring during the course of surgery constitute
an “accident” under the terms of the insurance policy at issue. Also, given the Court’s
analysis herein, the Court is inclined to hold that the surgery would constitute “medical or
surgical treatment of the illness or disease,” which is the specific exclusion on which
Defendant consistently relied throughout the underlying claims and appeal process.
(See Section I. F., supra.) Finally, the Court agrees with Defendant’s argument that
Plaintiff failed to include this contention in the Pretrial Order and, therefore, may not do
so now. The Tenth Circuit has held that “claims, issues, defenses, or theories of damages
not included in the pretrial order are waived even if they appeared in the complaint . . . .”
Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002).
15

by Plaintiff’s argument. The uncontroverted fact remains that Decedent was
trained and employed as a fireman. Fighting fires, when they occur, is
undoubtedly a vital and expected part of his job duties.
Citing P.I.K. Civil 4th § 124.41, Plaintiff argues that “bodily injury” means
an “injury sustained to the person through external and accidental means, as
opposed to disease.” (Doc. 369, at 152.) Plaintiff contends that, under Kansas law,
when an accidental injury activates or aggravates a dormant disease or physical
infirmity, the accident is the cause of the loss under a policy covering accidents.
(Id.) While the Court agrees with Plaintiff in regard to these definitions, it does not
agree that there is any evidence of an “accidental means” or “accidental injury”
that resulted in the loss at issue.
Plaintiff does not controvert Defendant’s stated fact that at the scene of the
fire, Decedent did not get hit by a falling beam, did not slip and fall, and did not
have the floor collapse beneath him. (Doc. 369, sealed, at 25). Plaintiff does,
however, argue that this fact is “not relevant and not material” because the
insurance policy “does not say that it covers accidental bodily injury only if the
insured is hit by a beam, fell, was cut, or collapses through the floor.” (Id., at 2526.) When taken literally, Plaintiff’s argument is correct – there is no requirement
in the policy that Decedent fall or be cut. The policy does, however, require that
“the loss described” must result “directly and independently of all other causes

16

from accidental bodily injuries.” (Doc. 2013-13, sealed, at 11-12.) The Court
cannot agree that Decedent exerting himself at his job, even in “extreme”
conditions, equates to “an undesigned, sudden, and unexpected event, usually of an
afflictive character, and often accompanied by a manifestation of force.’”
Whitaker, 768 P.2d at 323 (quoting Gilliland, 180 P. at 794).
In Miller, supra, the decedent’s wife sued the insurer, alleging that his death
from heart attack or heart failure was caused by “the vigorous and violent work
performed by him in his employment.” 331 P.2d, at 311. The Kansas Supreme
Court held there was no coverage under the accidental death policy:
In this case, as far as the evidence discloses, the deceased
was an experienced oil field ‘roughneck’ and was
performing the usual and ordinary work as such. There
was no evidence of any slip, mishap, extraneous force,
unusual occurrence or unforeseen development which
took place at any time in the performance of the work.
The handling of the tongs, pipe and cement was
performed as usual and intended. We cannot say the
death of decedent, even though unforeseen and
unexpected, resulted directly and independently from
injuries sustained through accidental means as defined in
the insurance policy.
Id., at 312. The Miller court also stated that
[w]e are of the opinion that if work is being carried on
voluntarily and intentionally in the usual way, death
which follows a heart attack or heart failure, and which
may be assumed to be unexpected, cannot be regarded as
produced by accidental means within the meaning of an
insurance policy providing for accidental death benefits,
unless there is proof of some unusual happening
17

preceding the heart attack or heart failure which may
have caused death. Stated in another manner, if a result
is such as follows from ordinary means, voluntarily
employed, in a not unusual or unexpected way, it cannot
be called a result effected by accidental means, but if in
the act which precedes the result something unforeseen
or unusual occurs which produces it, then it has been
produced through accidental means.
Id.
Plaintiff counters that it has established
that the rupture of the tendons supporting [Decedent]
Eck’s heart valve was an undesigned, sudden, and
unexpected event that occurred during a period of
extreme exertion while fighting the Cedar Lakes fire.
WFRA also proved that intense heat, weight from his full
load of equipment and tools, heavy smoke, stress,
physical strain, and increased pressure on his heart valve
were the forces that caused the rupture. All of these
forces are external to his heart, and all but the increased
blood pressure are external to his body. The force from
high blood pressure in this case was secondary to the
hazardous external conditions at the fire; we know he did
not have native atherosclerotic heart disease or high
blood pressure before the fire. His blood pressure was
documented as normal before the fire, and his heart
catheterization after the rupture proved that he had no
atherosclerosis. [Additional Facts ¶ 426]. His
firefighter’s physical in August, 2008 is uncontroverted
and conclusive evidence of his cardiac health at that time.
[Additional Facts ¶¶ 204, 205, 206, 207].
(Doc. 369, at 153.) Even assuming, for the sake of these dispositive motions, that
all of Plaintiff’s contentions regarding Decedent’s health are true, it fails to
establish in any way that Decedent’s death was caused by an “accidental means.”

18

To apply Plaintiff’s reasoning to the present case, the Court would have to
find that it was “unexpected” or “unforseen” that the Decedent, who was trained
and employed as a fireman, would be called upon to help fight a fire, even under
“extreme” conditions. In other words, that there was an “accidental means” by
which Decedent was fighting a fire. The Court cannot reach such a conclusion.
Even assuming the fire was started accidentally, Plaintiff’s participation in fighting
the fire was not accidental. Simply stated, there was no “accident” as that term is
defined by the relevant case law. Further, given the nature of Plaintiff’s
employment, extreme work conditions cannot be unexpected.
Relying on Kellogg v. Metro. Life Ins. Co., 549 F.3d 818, 829-30 (10th Cir.
2008) Plaintiff argues “[t]here are many other cases adhering to the theory that if
the accident sets into motion a series of events which culminate in death, there is
coverage even when the accident must be the ‘sole’ cause of death.” (Doc. 347,
sealed, at 47.) Plaintiff’s reliance on this case is misplaced, however, because the
decedent in Kellogg died from injuries sustained in an automobile crash that
occurred as he suffered a seizure. The Kellogg court held that the resulting “car
crash – not the seizure – caused the loss at issue, i.e. [the decedent’s] death, and
therefore the exclusionary clause of [AD&D] policy does not apply.” 549 F.3d, at
829. Thus, in Kellogg, the automobile accident, by its very definition an
“accident,” caused the loss. In the case at bar, Plaintiff’s underlying medical

19

condition did not cause the fire he was called upon to fight as part of his job just as
his underlying medical condition did not cause the extreme conditions under which
he worked.
Plaintiff’s reliance on Boring v. Haynes, 209 Kan. 413, 496 P.2d 1385
(1972) is equally misguided. The Boring court held that “[w]here an accidental
injury activates or aggravates a dormant disease or physical infirmity, the accident
may be said to have been the proximate cause of the resulting disability or death
within the usual provisions and ordinary meaning of a policy insuring against
accident.” Id., at Syl. ¶ 2. The decedent in Boring was involved in an automobile
collision that resulted in a heart attack, which caused the decedent’s death. The
Court fails to see a parallel between the automobile accident in Boring and the
execution of Decedent’s job duties in the present case, regardless of the end result.
No matter how extreme the conditions, the fact remains that Decedent was
performing the job for which he was trained and employed. By fighting a fire,
Decedent was not subjected to an “unexpected event” accompanied by a
“manifestation of force,” unlike the decedents in Kellogg and Boring, supra.4 As
such, there is no coverage under the AD&D Rider of the insurance policy at issue.

4

The Court also finds the circumstances in Rankin v. United Comm. Travelers of
America, also relied upon by Plaintiff (see Doc. 347, sealed, at 51-52), to be
distinguishable. 193 Kan. 248, 392 P.2d 984 (1964). Although the decedent in Rankin
died after attempting to put out a grass fire, he was a farmer and rancher by trade, not a
professionally trained fireman.
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C.

Defendant is not Prohibited from Urging as a Defense the Failure
of the Primary Coverage Provision.

Plaintiff argues that Defendant is not permitted in this litigation to defend
the claim based on an assertion that the lack of an “accidental bodily injury” results
in the failure of the primary coverage provision. Plaintiff’s argument begins with a
claim that Defendant’s original stated reasons for coverage denial did not raise this
issue. Then, Plaintiff first argues that Defendant is estopped from presenting that
defense. Finally, Plaintiff argues that, although this policy is exempt from ERISA,
the attachment of a page describing ERISA rights in the delivered policy imported
ERISA legal principals in a way that prohibits the assertion of new ground for
denial in litigation.
1.

Defendant communicated its reliance on the failure of the
insuring provision a the time of the denial.

Defendant’s initial denial letter stated that Decedent’s “death was not caused
directly and independently of all causes from accidental injury as the insured’s
underlying heart condition, as well as circumstances surrounding the surgery,
contributed to his death and therefore, the applicable exclusions of the policy
apply.” (Doc. 347-17, sealed, at 2.) The letter continues that “benefits are payable
if the loss results directly and independently of all other causes from accidental
bodily injuries.” (Id.) The letter then includes reference to exclusion (5), “bodily

21

or mental illness or disease of any kind or medical or surgical treatment of the
illness or disease.” (Id.)
Plaintiff argues that Defendant is limited to the reasons enumerated in its
initial denial letter – the disease exclusion – otherwise the appeal would not be full
and fair. (Doc. 347, sealed, at 37-40.) Defendant is correct, however, that “[t]he
requirement of an ‘accident’ or an ‘accidental bodily injury’” is a policy coverage
issue, rather than an exclusion. (Doc. 364, sealed, at 100; Doc. 215-11, sealed.)
Defendant responds that the letter “clearly referenced the requirement of an
‘accident’ or ‘accidental bodily injury.’” (Doc. 364, sealed, at 103.) The Court
agrees with Defendant. There is no other way to interpret this language from the
initial denial letter but that Defendant determined Decedent did not die “directly
and independently of all other causes from accident bodily injuries.” The same
language is specifically included in Defendant’s denial of Plaintiff’s appeal, which
states that Decedent’s “death did not result directly and independently from
accidental bodily injury.” (Doc. 347-17, sealed, at 3.) In other words, the death
was not caused by an accident, but heart disease – even if that disease manifested
itself for the first time during the performance of Decedent’s duties. The Court,
therefore, determines that Plaintiff should not have been surprised that Defendant
would contend in the present litigation that Plaintiff’s death was not accidental.
2.

Even if the Defense was first raised in this litigation,
estoppel cannot be applied to create coverage in the policy.
22

Further, even assuming arguendo that the lack of an accident was raised for
the first time after the commencement of litigation, Defendant would not be
estopped from raising it. The doctrines of waiver and estoppel may not be used to
expand the scope of an insurance policy. See AKS v. Southgate Trust Co., 844
F.Supp. 650, 659 (D.Kan. 1994) (so holding in a case in which a defendant failed
to assert “each and every potentially applicable exclusion” to the policy in its
denial letter); see also Hennes Erecting Co. v. Nat’l Union Fire Ins. Co., 813 F.2d
1074, 1080 (10th Cir. 1987) (holding that “[w]hile timely and complete disclosure
of the reasons for denying a claim would certainly have been preferable, waiver
and estoppel cannot be used in these circumstances to increase the insurer’s risk
beyond the terms of the policy”).
Kansas courts have also found a distinction between estoppel based on a
defendant’s “mere failure to identify lack of coverage” on one hand versus a
defendant who has taken affirmative actions implying coverage on the other.
Continental Cas. Co. v. Multiservice Corp., No. 06-2256-CM, 2009 WL 1788421,
at *3-4 (D.Kan. June 23, 2009). Plaintiff cannot – and does not – argue that
Defendant ever did or communicated anything to affirmatively make Plaintiff
believe there was coverage for this type of loss. To the contrary, it is undisputed
that Defendant consistently indicated it was denying coverage. (See
generally Doc. 347-17.) Plaintiff was aware that litigation would be necessary

23

after the appeal was denied, regardless of the stated reason for denial. Plaintiff’s
argument relating to the litigation costs and fees it has incurred is, therefore,
unpersuasive. As such, the doctrine of estoppel would not preclude Defendant
from raising lack of an accidental death as a reason to deny coverage even
assuming Defendant failed to do so during the claims review and appeal process.
3.

ERISA legal principals were not imported into the contract
in a manner that would bar the consideration of the Defense
of failure of the principal insuring provision.

Plaintiff argues that the inclusion of the “Statement of ERISA
Rights”/“Claims Procedures for Life Insurance Plans” pages (hereinafter
“Statement of ERISA Rights”) effectively imported ERISA legal procedures and
principals into this ERISA-exempt contract. Plaintiff argues that the proper scope
of review would be thus limited to the “record” before the “plan administrator” (in
this case by analogy to the defendant insurance company) and limited to the
rationale expressly relied upon in the denial of coverage. Plaintiff’s claim that the
previous denials did not rely upon the lack of an “accidental injury” to deny
coverage leads plaintiff to conclude that Defendant is precluded under
contractually-incorporated ERISA law from changing theories in this case.

24

Plaintiff argues that, because of documents it contends were not
“discovered” until after the initiation of this litigation,5 the insurance contract at
issue is directly controlled by ERISA. In the alternative, Plaintiff argues that
because ERISA rights were referenced in the insurance contract, the policy is
subject to certain incorporated ERISA rules and procedures even if not directly
subject to the Act.6 Plaintiff’s motion also seeks a determination that, because
ERISA standards apply, the Court’s review of Defendant’s coverage denial should
be limited to a de novo review of the medical coverage issues based only on
evidence that was before the insurer at the time of the denial (referred to by
Plaintiff as the “administrative record”).
a.

the “Statement of ERISA Rights” document

Plaintiff contends that the “Statement of ERISA Rights” document (Doc.
215-13), and thus the ERISA statute and relevant law, is included in the insurance
policy at issue. More specifically, Plaintiff contends that Defendant made ERISA
appeal rights

5

This is a curious contention because Plaintiff’s argument must necessarily
include a claim that these “missing” pages were, in fact, delivered to Plaintiff as part of
the original policy when it was issued.
6

It is undisputed that a party cannot “opt in” to ERISA, regardless of the
intentions or desires of the parties. (Doc. 364, sealed, at 95; Doc. 390, sealed, at 120.)
See also Hall v. Me. Mun. Employees Health Trust, 93 F.Supp.2d 73, 75 (D. Me. 2000)
(“A benefit plan does not choose whether to opt in or opt out of ERISA.”)
25

part of the group policy of insurance in this case. KCL
knew when it answered both the Petition and the
Amended Complaint that ERISA appeal rights were part
of the contract of insurance it had with WFRA. KCL’s
failure to disclose that the ‘Statement of ERISA Rights’
was part of the policy was not merely a
‘miscommunication.’ It was an intentional act.
WFRA is a participant or beneficiary as defined in
the plan [29 U.S.C. 1132(a)], and is entitled to federal
court review of the denial of benefits, in accordance with
the ERISA rights KCL has tried to prevent WFRA from
asserting. [See 29 U.S.C. §1132(a)(1)(B)].
The law governing an appeal of an ERISA claim
was voluntarily adopted by KCL, although as a
government plan, ERISA has no mandatory jurisdiction.
[See 29 U.S.C. §1002 (32)].
(Doc. 214, at 34.)
Plaintiff’s contention that ERISA is part of the insurance policy at issue
finds its factual basis in the following two paragraphs from Plaintiff’s second
Motion for Summary Judgment (with corresponding exhibits):
99. The “Statement of ERISA Rights” was a part
of WFRA’s group policy. [Ex. A, O’Connor depo. pp.
55:8-56:3; Ex. Y, Seeman depo. p. 22:15-25].
100. All KCL group policies contain the
“Statement of ERISA Rights.” [Ex. Z, Seeman Aff., Dkt.
266-2; Ex. AA, Anderson Aff., Dkt. 266-3].
(Doc. 347, at 22.)
The exhibits Plaintiff has cited in support of these paragraphs establish that
1) Matthew O’Connor, Defendant’s Assistant General Counsel for Investments,
“assumed” the Statement of ERISA Rights was made part of the WFRA group
26

insurance benefits policy; 2) Jeffrey Seeman, Defendant’s Vice President of Group
Insurance, stated that he “believed” the standard form policy would include a
Statement of ERISA rights because “most” – but not all – group insurance policies
are provided by an employer and are covered by ERISA;7 3) and, also according to
Mr. Seeman, “[a]t the time of the issuance” of the policy at issue, “KCL’s normal
and customary business practice was to attach the ‘Statement of ERISA Rights’ to
all insurance policies when issued, regardless of whether ERISA is applicable to
that specific policy.”
In response to Plaintiff’s motion, Defendant establishes that Plaintiff was not
aware of the “Statement of ERISA Rights” pages until after the litigation had
commenced. (Doc. 364-9, at 13.) Further, at no time between 2001 and 2009 did
members of the WFRA Board believe that any of the Association’s members were
entitled to ERISA rights or protections. (Doc. 364, at pg. 88, ¶ 91; Doc. 364-9, at
29.) Also, Plaintiff cannot prove that it ever even received the “Statement of
ERISA Rights” during the relevant time period. (Doc. 364, at 89-90; Doc. 364-9,
at 52-53.)
Even so, the only affirmative evidence or testimony relating to the
“Statement of ERISA Rights” establishes that, at the time in question, Defendant’s

7

It is uncontroverted that the policy at issue was statutorily exempt from, and not
governed by, ERISA. (See Doc. 69, at 2; Doc. 214, at 34; Doc. 266, at 26.)
27

standard form policy would include a Statement of ERISA rights and its “normal
and customary business practice” was to attach the ‘Statement of ERISA Rights’ to
all insurance policies. (Doc. 347, at 22; Doc. 347-27, sealed, at 3.) In the absence
of evidence that Defendant acted contrary to its standard practices at the time in
question, the Court concludes that the “Statement of ERISA Rights” was sent by
Defendant to Plaintiff with the initial policy. Thus, the question before the Court is
the legal impact or significance of Defendant’s inclusion of these two pages. (Doc.
215-13, sealed.)
b.

the impact of inclusion of “Statement of ERISA
Rights”

The parties recognize that a party may not opt-in to coverage under ERISA,
regardless of the intentions of the contracting parties. (Doc. 364, sealed, at 95;
Doc. 390, sealed, at 120.) See also Hall, 93 F. Supp. 2d at 75 (“A benefit plan
does not choose whether to opt in or opt out of ERISA”). Plaintiff even concedes
that “as a government plan, ERISA has no mandatory jurisdiction” over the
insurance policy at issue. (Doc. 214, at 34.) Plaintiff argues, however, that
Defendant “voluntarily adopted” the entirety of “law governing an appeal of an
ERISA claim” as a result of the inclusion of the pages in question. (Id.) The
Court’s analysis must begin with a review of the pages at issue.
The first of these pages is entitled “Statement of ERISA Rights.” (Doc. 21513, sealed, at 1.) The document lists and explains four categories of “rights and
28

protections” provided by ERISA to plan participants: 1) the right to receive
information about the plan and benefits from the plan administrator; 2) the duties
imposed on plan fiduciaries; 3) the protection to enforce rights if a claim is denied
or ignored, in whole or in part (including the rights know the reason for denial, to
obtain copies of relevant documents, and to appeal any denial); and 4) assistance
with questions (including the ability to contact the Pension and Welfare Benefits
Administration of the U.S. Department of Labor).
Plaintiff concedes that it did not fulfill the duties prescribed to non-exempt
entities by this document, such as making available “a copy of the latest annual
report (Form 5500 Series) filed by the plan with the U.S. Department of Labor and
available at the Public Disclosure Room of the Pension and Welfare Benefit
Administration.” (See Doc. 390, sealed, at 7; Doc. 215-13, sealed, at 1.) Plaintiff
argues, however, that
the source of WFRA's ERISA rights is the contract, not
the federal statute, and the contract does not say that
WFRA must submit ERISA reports to, and communicate
with the Department of Labor, etc.; KCL did not impose
a contractual condition or conditions related to reporting
to the government on WFRA; WFRA is not required to
do any of the things set out . . . . before it can benefit
from the same claim handling process KCL promised all
of its insureds, including the ones who are substantively
covered by ERISA, and who are NOT exempt. This is a
case of an insured trying to enforce a written promise by
the insurance company.

29

(Doc. 390, sealed, at 7.) In the Court's purview, Plaintiff is attempting to have it
both ways by imposing duties from these two pages onto Defendant without itself
having to assume any of the responsibilities contained therein. Even so, the Court
will focus its analysis on the rights Plaintiff contends it receives from these pages.
It is doubtful that these two pages, about which Plaintiff was entirely
unaware until the current litigation, were ever intended by the parties to be part of
the contract or to create additional rights and obligations thereunder. The Court is
further inclined to find that at least the first of the pages is extraneous to the policy
at issue because it references rights and protections under ERISA and Plaintiff was
aware that the policy at issue was not covered by that statute. The Court will,
however, assume arguendo, that the pages became part of the insurance policy as a
result of Defendant’s “normal and customary business practice . . . attach[ing]”
them “to all insurance policies when issued.” Doc. 347-27, sealed, at 3.)
Operating under this assumption, the Court agrees with Plaintiff’s statement
that “the source of WFRA’s ERISA rights is the contract, not the federal statute . . .
.” (Doc. 390, sealed, at 7.) The Court does not, however, agree with Plaintiff’s
claim that Defendant has “voluntarily adopted” all “law governing an appeal of an
ERISA claim . . . .” (Doc. 214, at 34.) As Defendant argues, “even if [the parties]
had agreed to be governed by ERISA . . . , a failure of either side to honor that
agreement merely gives rise to a state-law claim for breach of contract.” (Doc.

30

364, sealed, at 94.) The Court agrees. Plaintiff has cited no authority requiring
this Court to import the full weight of ERISA law to a contract not statutorily
covered by ERISA.
Thus, any such ERISA rights or duties that are included in the insurance
policy at issue must be limited to, and defined by, the language used in these two
pages. In other words, the “Statement of ERISA Rights” does not import the
entirety of the ERISA statute, and law interpreting the statute, into the contract. It
imports only that which is specifically stated in these two pages.
The first page of this exhibit is the only page referencing ERISA. (Doc.
215-13, sealed, at 1.) The page simply indicates that plan participants have the
right “to appeal any denial . . . within certain time schedules.” The page does not
indicate that participants are now bestowed with full ERISA claims procedures or
the benefits of an ERISA appeal, despite Plaintiff’s argument to the contrary.
(See Doc. 215-13, at 1; Doc. 214, at 35.)
In addition, this portion of the exhibit states that, under certain conditions, a
participant “may seek assistance from the U.S. Department of Labor . . . .” While
such assistance is allowed to participants of plans that fall under ERISA statutorily,
Plaintiff does not argue that participants of the plan in question have this ERISA
right. This is another example of Plaintiff attempting to have it both ways by using
this document as a basis for the rights that benefit its position while ignoring or

31

dismissing the rights that participants do not have, the duties that Plaintiff has not
executed, and the language of this document that does not advance Plaintiff's
argument.
The second page of this exhibit, entitled “Claim Procedures for Life
Insurance Plans,” sets forth the procedure for appealing a denial of claims,
including relevant time frames. This page makes no reference to the ERISA statute
or ERISA law whatsoever. (Doc. 215-13, at 2.) There is no reference or citation to
the Code of Federal Regulations. Thus, even assuming arguendo that these pages
are to be considered a part of the relevant insurance policy, the Court cannot find
that their contents entitle participants to the benefits and rights of a full-blown
ERISA claims or appeal procedure let alone to the full body of “law governing an
appeal of an ERISA claim.” Additionally, if these two pages were delivered with
the policy, as Plaintiff claims, there would have been no reason to read the second
page as having anything to do with ERISA.
The second page of the exhibit does, however, without reference to ERISA,
state that Plaintiff is entitled to a “full and fair review” on appeal. (Id.) The page
continues that the plan administrator will provide a “written decision” regarding
the appeal which “will include specific reasons for the decision and specific
references to the plan provisions on which the decision is based.” (Id.)

32

It is undisputed that Defendant denied Decedent’s claim and then allowed an
appeal within the relevant time frame. It is also undisputed that Defendant
provided a written decision regarding the appeal containing its reasons for the
denial. Defendant did not deny Plaintiff the opportunity for a “full and fair
review” within the plain meaning of that provision by adding a new reason for the
denial that was not included in the initial denial letter or written appeal decision.
Kellogg, 549 F.3d 818, discussed supra, is an ERISA case factually similar
to the case at bar which illustrates the legal principal Plaintiff wishes to import. In
Kellogg, a plan administrator denied a claim because of a contract exclusion, and
made only passing reference to the primary coverage provision requiring accidental
death. The court recognized that in the review of a decision made by a plan
administrator, the review is limited to the “evidence and arguments that appear in
the administrative record,” and to the “rationale considered by the plan
administrator in the administrative record.” The court held that because the denial
letter in that case could not “reasonably be interpreted as denying AD&D coverage
on the basis that [the claimant’s death was not the result of] an ‘accident’,” the trial
court was precluded from affirming the denial on that basis. Id., at 829.
The principals in Kellogg do not apply because the denial in this case was
expressly based in part on the failure to satisfy the primary coverage section. (See
Section III. C. 1., supra.) Even if the letter denials in this case were interpreted, as

33

in Kellogg, to rely only on exclusions and not on the lack of an “accidental injury,”
the principals in Kellogg would be inapplicable because this insurance policy is not
subject to ERISA. The principal limiting the plan administrator to stated rationale
in a ERISA challenge does not stand alone, but is part of the general rules of
review governing ERISA court challenges which substantially limit the scope of
review. The structure of the administration of ERISA plans includes a Plan
Administrator which must act without conflict of interest to make decisions. Those
decisions may be reviewed de novo only after a determination of conflict of
interest. See generally, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101
(1989); Fought v. UNM Life Ins. Co., 379 F.3d 997 (10th Cir. 2004). Within this
structure, in reviewing a plan administrator’s decision, a court is limited to
evidence and arguments that appear in the administrative record. Flinders v.
Workforce Stabilization Plan of Phillips Petroleum Co., 491 F.3d 1180 (10th Cir.
2007)(overruled on other grounds recognized by Holcolm v. Unum Life Ins. Co.
Of America, 573 F.3d 1187 (10th Cir. 1187)). Therefore, in reviewing a decision
under ERISA, the Court considers only the rationale articulated by the plan
administrator and determines whether that decision was arbitrary and capricious.
Flinders, 491 F.3d at 1190.
The insurance policy in the present case is not a ERISA plan, and lacks the
procedural and structural components of a plan. There is no “plan administrator.”

34

It was applied as an insurance policy claim and denied as such. There is no
rationale for importing broad principals of ERISA into a insurance policy that
lacks the plan structure requiring those rules, and Plaintiff has provided no legal
authority requiring such.

IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment and memorandum in support (Docs. 341) is GRANTED.8
IT IS FURTHER ORDERED that Plaintiff’s “Motion for Protective Order
and a Determination as a Matter of Law . . . that Plaintiff is Entitled to a de novo
Review of Defendant’s Decision to Deny Coverage” (Doc. 204) and Plaintiff’s
Motion for Summary Judgment (Doc. 342) are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s “First Motion for an Addition
to the Administrative Record” (Doc. 216), Defendant’s “Motion in Limine to
Exclude Evidence Relating to Settlement Negotiations” (Doc. 318), and Plaintiff’s
“Motion to Exclude Dr. Arnold Meshkov’s Testimony and Report from Evidence”
(Doc. 368) are DENIED as moot.

IT IS SO ORDERED.

8

Because the Court has found a lack of coverage under the policy in question,
Plaintiff’s remaining claim for bad faith fails as a matter of law.
35

Dated at Wichita, Kansas, on this 14th day of February, 2014.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

36