Fairley v. Great American Insurance Company

Filing 55

ORDER finding as moot 43 45 Motions to Strike ; and granting Defendant's 34 Motion for Summary Judgment. A separate Judgment in accordance with Rule 58 shall be entered. Signed by District Judge Keith Starrett on July 14, 2014 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ROSIE FAIRLEY

PLAINTIFF

V.

CIVIL ACTION NO. 2:13-CV-98-KS-MTP

GREAT AMERICAN INSURANCE COMPANY

DEFENDANT

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants Defendant’s Motion for
Summary Judgment [34] and denies Defendant’s Motions to Strike [43, 45] as moot.
The Court will enter a separate judgment in accordance with this opinion.
I. BACKGROUND
Plaintiff is the widow of a truck driver, Delbert Fairley. Mr. Fairley died on
December 10, 2009, while inside his truck parked at the Kangaroo Truck Stop on U.S.
Highway 49, north of Hattiesburg, Mississippi. The cause of death was a pulmonary
embolism. A deep vein thrombosis detached, went to his heart, lodged in the right
ventricle, and prevented the heart from pumping blood through the pulmonary
arteries, causing hypoxia and death.
At the time of his death, Mr. Fairley was insured under an Occupational
Accident Insurance Policy [34-4] issued by Defendant Great American Insurance
Company. Pursuant to certain terms and conditions, the policy provides accidental
death benefits, including a monthly survivor’s benefit to a surviving spouse. Plaintiff
filed a claim for the survivor’s benefit. Defendant denied the claim [34-7], asserting,
among other things, that coverage was barred by the policy’s exclusion of losses caused

by sickness or disease.
Plaintiff filed this suit in state court, asserting claims for breach of contract, bad
faith, and punitive damages. Defendant removed the case and eventually filed a Motion
for Summary Judgment [34], which is ripe for review.
II. DISCUSSION
Rule 56 provides that “[t]he 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.” FED. R. CIV. P. 56(a); see also Sierra Club, Inc.
v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627
F.3d at 138. “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.” Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Defendant argues that Plaintiff’s claim is barred by the following policy
exclusion: “This policy does not cover any . . . loss caused in whole or in part by, or
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resulting in whole or in part from, any of the following: . . . sickness, disease or
infection of any kind . . . .” Defendant contends that Mr. Fairley’s death was caused by
a “sickness” or “disease” and is excluded from coverage.
The Court’s ultimate goal in applying an insurance policy is to “render a fair
reading and interpretation of the policy by examining its express language and
applying the ordinary and popular meaning to any undefined terms.” Corban v. United
Servs. Auto. Ass’n, 20 So. 3d 601, 609 (Miss. 2009). “In Mississippi, insurance policies
are contracts, and as such, they are to be enforced according to their provisions.” Id.
First, where an insurance policy is plain and unambiguous, a court must
construe that instrument, like other contracts, exactly as written. Second,
it reads the policy as a whole, thereby giving effect to all provisions.
Third, it must read an insurance policy more strongly against the party
drafting the policy and most favorably to the policy holder. Fourth, where
it deems the terms of an insurance policy ambiguous or doubtful, it must
interpret them most favorably to the insured and against the insurer.
Fifth, when an insurance policy is subject to two equally reasonable
interpretations, a court must adopt the one giving the greater indemnity
to the insured. Sixth, where it discerns no practical difficulty in making
the language of an insurance policy free from doubt, it must read any
doubtful provision against the insurer. Seventh, it must interpret terms
of insurance policies, particularly exclusion clauses, favorably to the
insured wherever reasonably possible. Finally, although ambiguities of
an insurance policy are construed against the insurer, a court must
refrain from altering or changing a policy where terms are unambiguous,
despite resulting hardship on the insured.
Nationwide Mut. Ins. Co. v. Lake Caroline, Inc., 515 F.3d 414, 419 (5th Cir. 2008); see
also Corban, 20 So. 3d at 609; Guidant Mut. Ins. Co. v. Indem. Ins. Co. of N. Am., 13
So. 3d 1270, 1281 (Miss. 2009); United States Fid. & Guar. Co. v. Martin, 998 So. 2d
956, 963 (Miss. 2008).
Rather than a question of contract interpretation, here the Court is faced with
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a fact question of what caused Mr. Fairley’s death. Plaintiff’s own expert, Dr. Steven
W. Stogner, stated [41-2] that the cause of death was a “saddle embolus” – a “clot
positioned in the main pulmonary artery at the take off of the left and right pulmonary
arteries.” According to Stogner, the clot started as a “deep venous thrombosis” in Mr.
Fairley’s leg and traveled up to the heart, where it lodged in the right ventricle,
causing “an acute decrease or even cessation of its ability to pump blood through the
pulmonary arteries.” Stogner described [41-3] Fairley’s condition as “venous
thromboembolic disease (VTED).” He said, “The condition of having an acute
pulmonary embolus itself is referred to as VTED. . . . . The only ‘VTED’ he had was the
acute event he suffered on the date of his death,” acknowledging that a pulmonary
embolism is a type of disease.
Likewise, one of Defendant’s experts, Dr. Mark T. Dransfield, stated [34-3] that
Mr.

Fairley

died

from

“a

large

saddle

pulmonary

thromboembolus,

or

thromboembulism, which occupied and plugged his main and secondary right and left
pulmonary arteries.” Dransfield noted that Fairley’s “autopsy . . . revealed signs of
prior pulmonary emboli with organizing clots in his left lung as well as right
ventricular thickening and dilation, conditions which likely developed and continued
as a result of multiple factors including thromboembolic disease . . . .” Dransfield stated
“that [Fairley’s] thromboembolic disease was a progressive condition.”
Finally, Dr. Adele M. Lewis, the doctor hired by the State of Mississippi to
conduct Mr. Fairley’s autopsy, found [34-2] that Mr. Fairley’s cause of death was
“pulmonary thromboemboli, with super-super obesity considered an important
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contributory cause of death.” She found a “large . . . saddle pulmonary
thromboembolism . . . ” and noted “older-appearing blood clots in the arterioles of the
left lung.” It is undisputed, therefore, that Mr. Fairley’s cause of death was a
pulmonary embolism or – as described by Plaintiff’s expert – venous thromboembolic
disease.
The policy excludes “any . . . loss caused in whole or in part by, or resulting in
whole or in part from . . . sickness, disease or infection of any kind . . . ,” but it does not
provide a definition for the terms “disease” or “sickness.” Under Mississippi law,
“words, terms, phrases, and clauses in insurance contracts are to be given their
everyday meanings, not hypertechnical or esoteric definitions, but their plain and
common meaning.” McFarland v. Utica Fire Ins. Co., 814 F. Supp. 518, 525 (S.D. Miss.
1992), aff’d, 14 F.3d 55 (5th Cir. 1994).
It is beyond dispute that the condition which caused Mr. Fairley’s death – a
pulmonary embolism – falls within the common, everyday meaning of the word
“sickness.” Furthermore, Plaintiff’s own expert described Mr. Fairley’s condition as a
“disease,” and it falls within multiple dictionaries’ definitions of “disease” and
“sickness.”1 The Court concludes, therefore, that Plaintiff’s claim for survivor benefits

1

The Oxford English Dictionary defines a “disease” as a “condition of the
body, or of some part or organ of the body, in which its functions are disturbed or
deranged,” an “individual case or instance of such a condition;” or “an illness,
ailment, malady, [or] disorder.” “disease, n.,” The Oxford English Dictionary, 2nd
ed. (Oxford University Press, 1989). It defines a “sickness” as the “state of being
sick or ill; the condition of suffering from some malady; illness, ill-health.”
“sickness, n.,” The Oxford English Dictionary, 2nd ed. (Oxford University Press,
1989).
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is barred by the policy’s “sickness and disease” exclusion. Cf. Cumbest v. Gerber Life
Ins. Co., No. 1:07-CV-968-WJG-JMR, 2009 U.S. Dist. LEXIS 85152, at *29-*30 (S.D.
Miss. Sept. 16, 2009) (where policies provide that an accident must be “directly and
independently” the cause of a loss, the general rule is that if disease is a concurrent
proximate cause, the insurance company is not liable) (citing Sekel v. Aetna Life Ins.
Co., 704 F.2d 1335, 1338 (5th Cir. 1983)).2
Plaintiff argues that there exists a genuine dispute of material fact as to
whether Mr. Fairley’s pulmonary thromboembolic disease existed prior to the
pulmonary embolism which caused his death. Plaintiff apparently contends that Mr.
Fairley’s condition is not a “disease” or “sickness” if it did not manifest itself prior to

Webster’s New College Dictionary defines a “disease” as “an abnormal
condition of an organism or part that impairs normal physiological functioning, esp.
as a result of infection, inherent weakness, or environmental stress.” “disease, n.,”
Webster’s II New College Dictionary (Houghton Mifflin 1995). It defines a “sickness”
as an “illness” or a “defective or unsound condition.” “sickness, n.,” Webster’s II New
College Dictionary (Houghton Mifflin 1995).
Finally, Merriam-Webster.com defines a “disease” as “an illness that affects a
person, animal, or plant; a condition tha prevents the body or mind from working
normally.” “disease, n.,” Merriam-Webster.com (July 8, 2014), http://www.merriamwebster.com/dictionary/disease. It defines a “sickness” as an “unhealthy condition of
body or mind; the state of being sick.” “sickness, n.,” Merriam-Webster.com (July 8,
2014), http://www.merriam-webster.com/dictionary/sickness.
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Many Mississippi cases applying sickness or disease exclusions in accident
policies are inapplicable here, insofar as they address situations where a disease or
sickness was accompanied by another contributing cause of death or injury. See, e.g.
Britt v. Travelers Ins. Co., 556 F.2d 336, 341-42 (5th Cir. 1977); Brown v. PFL Life
Ins. Co., 312 F. Supp. 2d 863, 868 (N.D. Miss. 2004); Lincoln Am. Life Ins. Co. v.
Ruscoe, 210 So. 2d 769, 772 (Miss. 1968); Zurich Ins. Co. v. Ruscoe, 203 So. 2d 305,
308-09 (Miss. 1967); Peerless Ins. Co. v. Myers, 192 So. 2d 437, 439 (Miss. 1966).
Here, there is no question of primary and secondary causes. The cause of death was
a pulmonary embolism, with no other contributing cause.
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death. Phrased differently, Plaintiff argues that the cause of death must have been a
chronic condition, rather than an acute event. The policy contains no requirement,
however, that the “disease” or “sickness” preexist the loss which precipitates a claim.
Indeed, Plaintiff’s own expert described the embolism as an “acute event,” yet
acknowledged that the cause of death was venous thromboembolic disease. Moreover,
the plain, everyday usage of the term “sickness” surely encompasses both chronic
medical conditions and acute medical events.
Plaintiff also argues that Defendant had insufficient information to support a
denial based on this exclusion at the time it was first asserted in June 2010. But the
autopsy was performed in December 2009, and the denial letter [1-1] of June 1, 2010,
plainly states that the “cause of death was determined to be Pulmonary
Thromboemboli.”
III. CONCLUSION
For the reasons stated above, the Court grants Defendant’s Motion for
Summary Judgment [34]. The Court will enter a separate judgment in accordance with
Rule 58.
The Court also denies Defendant’s Motions to Strike [43, 45] as moot.
SO ORDERED AND ADJUDGED this 14th day of July, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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