669 F.2d 955 (4th Cir. 1982), 81-1514, Whetsell v. Mutual Life Ins. Co. of New York

Docket Nº:81-1514.
Citation:669 F.2d 955
Party Name:Mary H. WHETSELL, individually and as Executrix of the Estate of Kenneth A. Whetsell, Deceased, Appellant, v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellee.
Case Date:February 05, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 955

669 F.2d 955 (4th Cir. 1982)

Mary H. WHETSELL, individually and as Executrix of the

Estate of Kenneth A. Whetsell, Deceased, Appellant,

v.

The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellee.

No. 81-1514.

United States Court of Appeals, Fourth Circuit

February 5, 1982

Argued Dec. 7, 1981.

Page 956

Karen J. Williams, Orangeburg, S.C. (Charles H. Williams, Williams & Williams, Orangeburg, S.C., on brief), for appellant.

James M. Brailsford, III, Columbia, S.C. (Robinson, McFadden, Moore, Pope & Stubbs, Columbia, S.C., on brief), for appellee.

Before HALL, SPROUSE and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge.

Mary H. Whetsell, plaintiff below, appeals the district court's ruling that she is not entitled to accidental death benefits from the appellee, Mutual Life Insurance Company of New York. We affirm.

Appellant's husband was admitted to the Veteran's Administration Hospital in Charleston, South Carolina for cataract surgery on January 28, 1976. On February 2, 1976, while in the hospital recovering from the operation, a saline solution was intravenously administered to Mr. Whetsell. An infected I.V. needle was used, causing Whetsell to contract bacterial endocarditis from which he died on March 13, 1976.

Whetsell was covered by four life insurance policies issued by Mutual. Each policy provided for double recovery in the event of accidental death. The relevant portions of the policy are as follows:

"Accidental death" means death occurring (a) directly and independently of all other causes, as a result of accidental bodily injuries, (b) within 90 days after the date of the accident causing such injuries, and (c) from a cause not mentioned under "Risks Not Assumed."

Risks Not Assumed -Under this rider the Company does not assume the risk of death caused or contributed to, directly or indirectly, by disease, by bodily or mental infirmity, or by treatment or operation for disease or bodily or mental infirmity.... (Emphasis added).

Mutual has paid the face amount of all four policies but opposes appellant's claim for accidental death benefits. It is argued that Whetsell's death was caused or contributed to by medical treatment and is, therefore, excluded from accidental death coverage. The issue presented by this appeal is whether the above provision excludes from coverage death caused by medical...

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