627 F.3d 627 (7th Cir. 2010), 10-1448, Sellers v. Zurich American Ins. Co.

Docket Nº:10-1448.
Citation:627 F.3d 627
Opinion Judge:FLAUM, Circuit Judge.
Party Name:Audrey Y. SELLERS, Plaintiff-Appellant, v. ZURICH AMERICAN INSURANCE COMPANY, Defendant-Appellee.
Attorney:Thomas Armstrong, Attorney (argued), Von Briesen & Roper, S.C., Milwaukee, WI, for Plaintiff-Appellant. John B. Tuffnell, Attorney (argued), Whyte Hirschboeck Dudek, Milwaukee, WI, for Defendant-Appellee.
Judge Panel:Before FLAUM, MANION, and TINDER, Circuit Judges.
Case Date:December 03, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
FREE EXCERPT

Page 627

627 F.3d 627 (7th Cir. 2010)

Audrey Y. SELLERS, Plaintiff-Appellant,

v.

ZURICH AMERICAN INSURANCE COMPANY, Defendant-Appellee.

No. 10-1448.

United States Court of Appeals, Seventh Circuit.

December 3, 2010

Argued Sept. 30, 2010.

Page 628

[Copyrighted Material Omitted]

Page 629

Thomas Armstrong, Attorney (argued), Von Briesen & Roper, S.C., Milwaukee, WI, for Plaintiff-Appellant.

John B. Tuffnell, Attorney (argued), Whyte Hirschboeck Dudek, Milwaukee, WI, for Defendant-Appellee.

Before FLAUM, MANION, and TINDER, Circuit Judges.

FLAUM, Circuit Judge.

On November 16, 2006, Anthony Sellers had surgery to remove a broken wire from his knee. Tragically, Mr. Sellers died nine days later from an acute pulmonary embolism with infarct, caused by his immobilization following the operation. The wire that necessitated the November 16 surgery had been inserted over a year earlier during a previous operation to repair Mr. Sellers's patella tendon, which he tore while performing training exercises at work.

At issue in this case, which arises under the Employee Retirement Income Security Act of 1974 (" ERISA" ), 29 U.S. C. § 1001 et seq., is whether Mr. Sellers's death is covered by the accidental death and dismemberment (" AD & D" ) insurance policy in his employer's employee welfare benefit plan. The AD & D policy covers accidental deaths occurring within 365 days of the accident. Thus, the question before us is whether Mr. Sellers's death can be traced to an accident that occurred within a year of his death. Zurich American Insurance Company, which issued the AD & D policy, concluded that it could not, and the district court deferred to that determination.

Page 630

For the following reasons, we affirm the district court's judgment.

I. Background

Mr. Sellers worked at Time Warner Cable Company and participated in Time Warner's ERISA-governed employee welfare benefit plan, which included an AD & D policy. On September 15, 2005, Mr. Sellers tore a tendon in his knee while performing training exercises at work. Mr. Sellers underwent surgery to repair the torn tendon on September 29, 2005. His surgeon, Dr. Rosemary Schultz, inserted a metal wire in Mr. Sellers's knee to assist in the healing process. Prior to the surgery, Dr. Schultz explained that she likely would remove the wire four to six months after surgery.

On April 3, 2006, Mr. Sellers saw Dr. Schultz for a follow-up appointment. Because Mr. Sellers was not having any knee pain at that time, Dr. Schultz decided not to remove the wire until symptoms occurred. Mr. Sellers saw Dr. Schultz for another office visit later that spring, at which time he complained that his knee was swelling. Dr. Schultz recommended that Mr. Sellers undergo surgery to remove the wire after x-rays revealed that it had broken into three pieces. On November 16, 2006, Mr. Sellers had surgery to remove the broken wire. Dr. Schultz's surgical notes stated that the fact that the wire had broken was, " in many degrees, ... expected." Nine days later, on November 25, 2006, Mr. Sellers died from what an autopsy determined to be acute pulmonary embolism with infarct, due to immobilization following the wire removal.

In March of 2007, Audrey Sellers, Mr. Sellers's widow, submitted a claim for benefits under the AD & D policy to Zurich, the Plan administrator. The accidental death provisions of the policy provide that benefits are due " [i]f injury to a Covered Person results in Loss of Life ... within 365 days of the accident." The policy defines " injury" as " an accidental bodily injury which is a direct result, independent of all other causes of a hazard set forth in the ‘ Description of Hazards.’ " The policy does not define " accident," or " accidental." Instead, it grants Zurich " discretionary authority to determine eligibility for benefits and to construe the terms of the plan." Expressly excluded from coverage under the policy are deaths caused by " illness [,] ... sickness, disease, bodily infirmity or medical or surgical treatment thereof, or bacterial or viral infection, regardless of how contracted."

Zurich denied Mrs. Sellers's claim. To the extent that Mr. Sellers's death could be traced to the September 15, 2005 knee injury, Zurich concluded that Mrs. Sellers was not entitled to benefits because the...

To continue reading

FREE SIGN UP