Ervin v. National Union Fire Insurance Company of Pittsburgh, PA.

Filing 38

MEMORANDUM. Signed by Judge William M Nickerson on 9/21/2015. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

SANDRA DENISE ERVIN

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v.
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NATIONAL UNION FIRE INSURANCE *
COMPANY OF PITTSBURGH, PA.
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Civil Action No. WMN-15-201

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MEMORANDUM
Before the Court are cross motions for summary judgment
filed by Plaintiff Sandra Denise Ervin, ECF No. 29; and by
Defendant National Union Fire Insurance Company of Pittsburgh,
PA. (National Union).
briefed.

ECF No. 33.

The motions are fully

Upon review of the motions, the administrative record,

and the applicable case law, the Court determines that no
hearing is necessary, Local Rule 105.6, and that Plaintiff’s
motion will be denied and Defendant’s motion will be granted.
On April 18, 2014, Frederick Ervin, Jr. was boating on the
Severn River when he became ill, leaned over the side of the
boat to vomit, fell into the river, and subsequently died.

At

the time of his death, Mr. Ervin was insured, through his
employer, under an accidental death and dismemberment policy
issued by Defendant National Union (the Policy).

Plaintiff

Sandra Ervin, Mr. Ervin’s widow and beneficiary, made a claim
for accidental death benefits under the Policy, which Defendant

subsequently denied, both initially and after an appeal.
Plaintiff then filed suit in the Circuit Court for Anne Arundel
County challenging that denial.

Defendant timely removed the

action to this Court, noting that, because the insurance
contract at issue falls under the provisions of the Employee
Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et
seq., this Court has original jurisdiction over this action
under 29 U.S.C. § 1132(a)(1)(B).
When reviewing a denial of benefits under an ERISA-governed
plan, a District Court must first determine “whether the
relevant plan documents confer discretionary authority on the
plan administrator.”

DuPerry v. Life Ins. Co. of N. Am., 632

F.3d 860, 869 (4th Cir. 2011).

Unless the benefit plan gives

the administrator that discretion, a denial of benefits
challenged under § 1132(a)(1)(B) is to be reviewed under a de
novo standard.

Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989).

Furthermore, in conducting that de novo

review, the District Court is generally limited to looking only
at the evidence that was before the plan administrator when the
benefits determination was made.

Quesinberry v. Life Ins. Co.

of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993).

Here, the

parties agree that this Court’s review is de novo and should be
limited, at least at the summary judgment stage, to a review of

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the administrative record.

See Pl.’s Mem. at 6,1 ECF No. 29-1;

Def.’s Mem. at 9, ECF No. 33-1.

Defendant has filed the

complete Administrative Record (A.R.) with the Court.

See ECF

No. 19.
It is also undisputed that, in an ERISA case, the insured
has the initial burden of demonstrating that a claim falls
within the scope of coverage under the insurance policy at issue
but, once the insured has satisfied that initial burden, the
insurer has the burden of proving the applicability of any
exclusion.

Ferguson v. United of Omaha Life Ins. Co., 3 F.

Supp. 3d 474, 481 (D. Md. 2014).

Here, the Policy provides

coverage for an accidental death benefit “[i]f Injury to the
Insured Person results in death within 365 days of the date of
the accident that caused the Injury.”

A.R. at 43.

“Injury” is

defined as “bodily injury (1) which is sustained as a direct
result of an unintended, unanticipated accident that occurs
while the injured person’s coverage under the Policy is in

1

Perhaps due to some confusion as to what was required under the
Court’s Scheduling Order, as amended, ECF No. 15, Plaintiff
served a Rule 26(A)(2) expert disclosure, which Defendant then
moved to strike on the ground that the Court’s review was
limited to the Administrative Record. ECF No. 28. Plaintiff
responded to the Motion to Strike, acknowledging that, while the
Administrative Record might be sufficient for the Court to issue
a ruling on the summary judgment motions, should the case
proceed to trial, expert testimony might be necessary. ECF No.
30 at 3. As this case clearly is one that can be decided on
summary judgment, the Court will deny Defendant’s Motion to
Strike as moot.
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force, and (2) which directly (independent of sickness, disease
or any other cause) causes a covered loss.”

A.R. at 68.

The Policy also includes a list of exclusions.

Under those

exclusions, “[n]o coverage shall be provided under this Policy
and no payment shall be made for any loss resulting in whole or
in part from, or contributed to by, or as a natural and probable
consequence of any of the following excluded risks even if the
proximate or precipitating cause of the loss is an accidental
bodily injury.”

A.R. at 68 (emphasis added).

Those excluded

risks include, inter alia,
2. sickness, disease, mental incapacity or bodily
infirmity whether the loss results directly or
indirectly from any of these.
. . .
7. the Insured Person being under the influence of
intoxicants while operating any vehicle or means of
transportation or conveyance.
. . .
11. stroke or cerebrovascular accident or event;
cardiovascular accident or event; myocardial
infarction or heart attack; coronary thrombosis;
aneurysm.
Id. at 68-69.
Defendant’s reason for denying coverage has shifted
somewhat over time.

In the initial letter denying Plaintiff’s

claim, Defendant focused on Exclusion #2, concluding that
“[t]here is no indication that Frederick Ervine Jr’s death was
the direct result of an accidental Injury” in that his death
“was the result of Atherosclerotic Cardiovascular Disease; or

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sickness, disease, or bodily infirmity which is specifically
excluded under the policy.”

A.R. at 149.

In the letter denying

Plaintiff’s appeal of that initial decision, Defendant cited, in
addition to Exclusion #2, Exclusion #7 and referenced a
toxicology report regarding Mr. Ervin’s blood alcohol level.
A.R. at 241.

In its summary judgment briefing, Defendant argues

first that Plaintiff’s claim does not fall within the scope of
coverage under the Policy because Mr. Ervin did not suffer an
accidental injury as defined in the Policy.

In the alternative,

Defendant argues that the claim is excluded under Exclusions #2,
#7 and #11.

For the reasons that follow, the Court concludes

that coverage was properly excluded under Exclusion #2.2
There is basic agreement as to Mr. Ervin’s general health
at the time and the circumstances surrounding his passing.

Mr.

Ervin was 56 years old, was medically obese, a Type II diabetic,
and had been a pack-a-day cigarette smoker for forty years until
he quit just four months earlier.
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He also had a history of

The Court will assume, without deciding, that Plaintiff can
meet her burden of establishing that Mr. Ervin’s death falls
within the scope of coverage under the Policy, i.e., that he
suffered an accidental death. The Court also need not decide
whether Defendant’s recent invocation of Exclusion #11 has
merit, although it is certainly implicated in that it excludes
coverage for losses contributed to by “cerebrovascular accident
or event; cardiovascular accident or event; myocardial
infarction or heart attack.” As for Exclusion #7, relating to
intoxication, the Court also need not reach its applicability.
The Court notes, however, that there is nothing in the record to
indicate that Mr. Ervin’s alcohol intake contributed in any way
to his death.
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heart disease and underwent a cardiac catherization and left
ventriculography in December of 2013.

Although Plaintiff points

to evidence in the Administrative Record that could be read as
minimizing the seriousness of Mr. Ervin’s heart condition, there
is no dispute that he had a heart attack of some severity before
falling in the water.

The report on the autopsy conducted by

Assistant Medical Examiner Dr. J. Laron Locke concluded that Mr.
Ervin “died of Atherosclerotic Cardiovascular Disease
complicated by Drowning” and Dr. Locke opined that “[i]t appears
he had a ‘heart attack’ before entering the water.”

Post Mortem

Examination Report, A.R. at 7.
On the day in question, Mr. Ervin was out on his motorboat
with a friend, Howard Lehnert.

They both had been consuming

alcohol and the autopsy report indicated that Mr. Ervin had a
blood alcohol level significantly above the legal limit.

In

recounting to the Maryland Natural Resource Police (MNRP) what
had happened, Mr. Lehnert stated that Mr. Ervin became sick
while operating the boat and went to the side of the boat to
throw up and did so.

While leaning over the side, Mr. Ervin

fell out of the boat and landed in the water, face down.

Mr.

Lehnert reported that Mr. Ervin “was not moving or attempting to
get back in on his own.”

MNRP Incident Report, A.R. at 10.

With the help of two men on a nearby dock, Mr. Lehnert was able

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to lift Mr. Ervin back into the boat but he “was still not
moving or coughing.”

Id. at 9-10.

Defendant interprets Mr. Lehnert’s recounting of events in
two different and conflicting ways.

In its Reply brief,

Defendant suggests that Mr. Lehnert’s testimony concerning Mr.
Ervin’s lack of movement or struggle once in the water
corroborates “the fact that Mr. Ervin had died from a heart
attack by the time he fell into the water.”
(emphasis added).

ECF No. 37 at 7

A few pages later, however, Defendant

suggests that “the only ‘logical’ explanation” for his failure
to struggle or call out “is that Mr. Ervin was unconscious (and
therefore unable to swim, struggle, call for help) either
because of a heart attack or because of his intoxicated state.”
Id. at 11 (emphasis added).

From its review of the

Administrative Record, the Court concludes that Mr. Ervin was
unconscious but was still alive when he entered the water.
While the first cause of death Dr. Locke listed in the
autopsy report was “Atherosclerotic Cardiovascular Disease: A.
Coronary artery disease, moderate - severe; B. Cardiomegaly; C.
Concentric left ventricular hypertrophy,” he listed “Drowning”
as the second cause of death.

A.R. at 7.

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In addition, the

autopsy report indicates that there were “moderate amounts of
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Dr. Locke also listed “Morbid Obesity” as the third cause of
death. Id.
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frothy blood-tinged fluid” in Mr. Ervin’s lungs.

Id. at 5.

While Defendant correctly observes that there is no medical
authority in the Administrative Record connecting that fact to
the conclusion that Mr. Ervin was still breathing after his
fall, that he was still breathing would seem to be a logical
explanation for the fluid in his lungs.

Regardless, had Dr.

Locke concluded that Mr. Ervin died before hitting the water,
his report would not have listed drowning as one of the causes
of death nor would he have indicated that the coronary event was
“complicated by Drowning.”

As noted by Plaintiff, the Medical

Examiner’s Report also determined “[t]he manner of death is
ACCIDENT,” A.R. at 7, which is consistent with the conclusion
that he had drowned.
Based upon the classification of the manner of Mr. Ervin’s
death as accidental, Plaintiff submitted her claim to Defendant
for accidental death benefits.

In response to that claim,

Defendant sought an independent review from Dr. Andrew Baker, a
forensic pathologist.

After reviewing Mr. Ervin’s medical

history, the MNRP Report, and the Medical Examiner’s Report, Dr.
Baker stated that the “sequence of events would be entirely
consistent with an acute cardiac event (which can present as
vomiting), followed by the onset of unconsciousness due to a
cardiac arrhythmia from the heart disease.”

A.R. at 131.

As to

the manner of death, Dr. Baker opined that “[b]y convention,
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since Mr. Ervin collapsed into a body of water, many medical
examiners would regard the environment as another factor, and
therefore regard the death as an accident.”

Id.

He concluded

But for the cardiac disease Mr. Ervin had, there is no
reason he would have fallen into the water with no
apparent effort to extricate himself, or even move.
Mr. Ervin’s death was not directly independent of
sickness, disease or bodily infirmity, since it was
his underlying cardiac disease that started the
unfortunate chain of events on 4/18/14 that led to his
death.
Id.
There is a well-established line of decisions, including a
recent decision of this Court, Ferguson, supra, in which courts
have held that accidental death benefits are payable where a
disease or preexisting condition causes an accident that, in
turn, causes a death despite policy exclusions for losses caused
by sickness or illness.

In one of the most often cited

decisions in this line, Kellogg v. Metropolitan Life Insurance
Company, 549 F.3d 818 (2008), the insured had a seizure while
driving which caused him to crash into a tree and he suffered a
fatal skull fracture as a result of that crash.

In concluding

that there was coverage under his accidental death policy, the
Tenth Circuit stated,
[h]ere the loss ([the insured]’s death) was caused by
a skull fracture resulting from the car accident, not
by physical or mental illness. While the seizure may
have been the cause of the crash, it was not the cause
of Brad Kellogg's death. The Plan does not contain
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exclusion for losses due to accidents that were caused
by physical illness, but rather excludes only losses
caused by physical illness. Because there is no
evidence that the seizure caused [the insured]’s
death, [the insurer]'s argument fails.
549 F.3d at 832.
Several of the decisions cited and relied upon in Kellogg
involved drownings.

For example, in National Life & Accident

Insurance Co. v. Franklin, 506 S.W.2d 765 (Tex. App. 1974), the
insured, who had a history of epileptic seizures, was believed
to have had a seizure which caused him to fall into a bathtub
and drown.

The court held that benefits were payable under a

policy that provided coverage if a death results “from bodily
injuries effected solely through external, violent and
accidental means . . . provided [] that no such death benefit
shall be payable if death results from or is contributed to by
any disease or mental infirmity, or medical or surgical
treatment thereof.”

Interpreting that language, the court

reasoned that his epilepsy was not the cause of his death, but
was “merely a cause of a cause and was therefore too remote to
bar recovery.”

Id. at 767.

In Orman v. Prudential Insurance Co., 296 N.W.2d 380 (Minn.
1980), the insured lost consciousness due to the bursting of a
cerebral aneurysm and fell into the bathtub and drowned.

While

the policy excluded losses “caused or contributed to by bodily

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infirmity or disease,” the court concluded that there was
coverage on the ground that,
[i]t was a mere fortuity that the decedent stood over
a bathtub full of water at the time the aneurysm burst
and rendered her unconscious. In other words, the
aneurysm may have contributed to the accident, but it
did not contribute to the death. In such
circumstances, the aneurysm is simply too remote to be
deemed a direct or contributing cause of death.
Id. at 382.
In Manufacturers' Accident Indemnity Co. v. Dorgan, 58 F.
945 (6th Cir. 1893), the court held that there was coverage
under an accidental death policy where it was believed that the
insured fell into a creek after suffering dizziness due to a
preexisting heart disease.

The court reasoned that:

[I]f the deceased suffered death by drowning, no
matter what was the cause of his falling into the
water, whether disease or a slipping, the drowning, in
such case, would be the proximate and sole cause of
the disability or death, unless it appeared that death
would have been the result, even had there been no
water at hand to fall into. The disease would be but
the condition; the drowning would be the moving, sole,
and proximate cause.
Id. at 954.
Relying on this line of decisions, Plaintiff argues that,
because there is no evidence that Mr. Ervin would have died of
the heart attack had he experienced it on dry land, the
exclusion does not apply to her claim.

The heart attack may

have caused the drowning, but there is no evidence that it

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caused the death.
agree.

On that factual question, the Court would

Plaintiff’s cardiologist, Anees Ahsan, noted that Mr.

Ervin had “non-critical coronary artery disease” and opined
that, “[h]ad he been on the ground with a similar clinical
presentation, the outcome of this tragedy might have been very
different.”

A.R. at 203.4

Dr. Baker’s conclusion that the

heart attack was the start of an “unfortunate series of events”
is entirely consistent with the conclusion that the heart attack
caused the drowning, and the drowning caused the death.
While agreeing for the most part with the factual
conclusions advanced by Plaintiff, the Court, applying the
actual language contained in the Policy, nonetheless concludes
that the recovery is excluded under Exclusion #2.

While the

courts in Kellogg, Franklin, Orman and Dorgan may have held that
the language of the policy exclusions at issue before them did
not encompass preexisting conditions or sickness that caused
accidents that, in turn, caused death, the court in Kellogg
specifically allowed that the insurer “could have drafted the
policy to exclude losses resulting from accidents caused by
injury or illness.”

549 F.3d at 832 n.5.

The Kellogg court

cited as an example of such language an exclusion examined by

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Defendant points out that this opinion may have been based upon
Dr. Ahsan’s belief that Mr. Ervin did not know how to swim, a
belief that may or may not be accurate.
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the Fifth Circuit in Sekel v. Aetna Life Ins. Co., 704 F.2d
1335, 1336-37 (5th Cir. 1983).
In Sekel, the policy provided that “no payment shall be
made for any loss resulting from any injury caused or
contributed to by, or as a consequence of, any of the following
excluded risks, even though the proximate or precipitating cause
of loss is accidental bodily injury.”

Id. at 1336-37.

The

excluded risks included “bodily or mental infirmity” and
“disease.”

The insured in Sekel had a cardiovascular disease

that caused him to pass out and fall and, when he fell, he hit
his head and died of a skull fracture.

The Fifth Circuit held

that coverage was excluded, concluding that the “purpose of this
clause was to bar recovery in cases where the insured’s death
was caused or contributed to by or a consequence of a noncovered
risk such as disease, even though an accidental injury was the
proximate and precipitating cause of death so that, accordingly,
the causal, contributory or consequential relationship between
the disease and death was not proximate.”

Id. at 1343-44.

Following the dictate that the plain language of an
insurance policy must be given effect, the court found that the
“even though” language in the exclusion compelled this
conclusion: “a loss, a functionally closely related significant
cause or contributing factor of which is a noncovered risk, is
excluded from the policy's accidental death benefits even though
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a covered risk is the proximate and more immediately
precipitating cause of the loss.

The exclusion clause is clear

and unambiguous in conveying this meaning.”

Id. at 1338.

The exclusionary language in the National Union Policy at
issue here is nearly identical to the language in the Sekel
policy and clearly compels the same result.

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The Policy

provides that coverage is excluded where a noncovered risk (in
this case, heart disease) contributed to the death “even if” a
covered risk (in this case, an accidental drowning) is the
proximate and more immediately precipitating cause.

While Mr.

Ervin may not have died had he had the heart attack on land,
there is no genuine dispute that the heart attack contributed to
his death in an immediate and significant manner.

Dr. Baker,

the independent forensic examiner retained by Defendant
concluded, “[b]ut for the cardiac disease Mr. Ervin had, there
is no reason he would have fallen into the water.”

A.R. at 131.

He also concluded that it was “his underlying cardiac disease
that started the unfortunate chain of events.”

Id.

Finding that there is no genuine dispute as to the facts
that are material to the applicability of this exclusion and
that, under those facts, this exclusion is clearly applicable,

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In its cross-motion, Defendant specifically observes the
similarity of the language in the Policy and the language
interpreted and applied in Sekel. In her opposition to that
motion, Plaintiff makes no response to that observation.
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the Court must grant summary judgment in favor of Defendant.
See Fed. R. Civ. P. 56(a) (“The court shall grant summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.”).

A separate order will issue.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED: September 21, 2015

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