229 F.3d 1008 (10th Cir. 2000), 99-1297, Pirkheim v. 1st Unum Life Ins.

Docket Nº:99-1297
Citation:229 F.3d 1008
Party Name:FRANK PIRKHEIM and ROXANNE PIRKHEIM, as parents of Logan Pirkheim, Plaintiffs-Appellants, v. FIRST UNUM LIFE INSURANCE, a foreign corporation, Defendant-Appellee.
Case Date:October 24, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1008

229 F.3d 1008 (10th Cir. 2000)

FRANK PIRKHEIM and ROXANNE PIRKHEIM, as parents of Logan Pirkheim, Plaintiffs-Appellants,


FIRST UNUM LIFE INSURANCE, a foreign corporation, Defendant-Appellee.

No. 99-1297

United States Court of Appeals, Tenth Circuit

October 24, 2000

Appeal from the United States District Court for the District of Colorado. (D.C. No. 97-B-2528 )

Diane Vaksdal Smith (Scott J. Eldredge with her on the briefs) of Burg Simpson Eldredge & Hersh, P.C., Englewood, Colorado, for Plaintiffs-Appellants.

Sandra L. Spencer (Todd Clarke with her on the brief) of White and Steele, P.C., Denver, Colorado, for Defendant-Appellee.

Before BRORBY , HOLLOWAY and BRISCOE, Circuit Judges.

BRORBY, Circuit Judge.

Frank and Roxanne Pirkheim sued First Unum Life Insurance Company (First Unum) in state court to recover accidental death benefits for the death of their minor

Page 1009

son, Logan. First Unum removed the case to federal district court alleging federal question jurisdiction pursuant to 28 U.S.C. § 1331 and ERISA, 29 U.S.C. § 1132(e)(1). The district court granted summary judgment for First Unum holding, as a matter of law, there were no benefits payable under the policy. The Pirkheims appeal and we affirm.

The significant facts are not in dispute. Logan Pirkheim was born with a congenital heart defect. At approximately eight months of age, Logan underwent heart surgery to correct the defect. Although doctors successfully repaired the structural defects in Logan's heart, the surgery resulted in nerve damage, causing Logan to suffer an abnormal heart beat, or cardiac arrhythmia. To correct this problem, the doctors implanted a pacemaker, which functioned properly after implantation. A little over four years later, however, Logan began suffering from arrhythmic seizures (which the pacemaker was designed to prevent) and died.

The cause of Logan's death was not immediately determined. The original death certificate did not identify a cause of death and indicated an autopsy was pending. After conducting an autopsy, the pathologist concluded, in relevant part, "the cause of death was apparent pacemaker failure in this 5-year-old boy who was pacemaker dependent following repair of his congenital heart disease." (Emphasis added.) After examining the pacemaker, the manufacturer's laboratory concluded:

The tests show that the pacemaker was performing within all mechanical and electrical specifications for a unit at this stage. The battery depletion analysis showed that the battery was depleted. The tests show that the "Elective Replacement Indicator" as well as the "Intensified Follow-up Indicator" were triggered prior to the device going to "no-output."

(Emphasis added.) In short, death was caused by the failure of the pacemaker, which in turn was caused by the battery becoming depleted.

At the time of his death, Logan was an insured under an accident insurance policy purchased by his father through his employer. The policy states, in pertinent part:


We agree with the Policyholder to cover each Insured for any loss described in Part I in return for the payment of premiums and subject to the provisions which follow. The loss must...

To continue reading