698 F.Supp. 220 (D.Colo. 1988), Civ. A. 87-C-1873, Krane v. Aetna Life Ins. Co.

Docket Nº:Civ. A. 87-C-1873
Citation:698 F.Supp. 220
Party Name:Krane v. Aetna Life Ins. Co.
Case Date:November 02, 1988
Court:United States District Courts, 10th Circuit, District of Colorado
 
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Page 220

698 F.Supp. 220 (D.Colo. 1988)

Richard KRANE, Bryan Krane, Rhonda Krane and Maria Smith, Plaintiffs,

v.

AETNA LIFE INSURANCE COMPANY, Defendant.

Civ. A. No. 87-C-1873.

United States District Court, D. Colorado.

Nov. 2, 1988

Scott R. Larson, Denver, Colo., for plaintiffs.

Cecelia Fleischner, Long & Jaudon, Denver, Colo., for defendant.

Page 221

ORDER

CARRIGAN, District Judge.

Plaintiffs commenced this action by filing a complaint for declaratory action in the state district court for the City and County of Denver, Colorado. Defendant Aetna Life Insurance Company ("Aetna") then filed a petition for removal pursuant to 28 U.S.C. § 1441(b). Diversity jurisdiction is alleged to exist under 28 U.S.C. § 1332.

The following facts appear undisputed: Plaintiffs are the children of Mr. Richard Krane, who died on May 28, 1982, during parathyroid surgery at St. Anthony Hospital in Denver, Colorado. Plaintiffs commenced a medical malpractice suit against St. Anthony and two doctors involved with the surgery. Subsequently, the plaintiffs settled their lawsuit with the physicians under an agreement in which the physicians did not confess liability. Plaintiffs also asserted claims under a life insurance policy issued by the defendant to Mr. Krane's employer, the General Foods Corporation. Defendant paid the requested benefits under the life insurance policy.

This action arises out of an additional insurance policy issued by the defendant to General Foods Corporation. This policy covered accidental death and dismemberment. Plaintiffs seek a declaratory judgment that Aetna is obligated to pay benefits to them under this policy.

A brief review of the decedent's medical history would be helpful: Mr. Krane was admitted to St. Anthony for surgical exploration of the parathyroid gland. Mr. Krane's diagnosis was primary hyperparathyroidism. On May 22 and 24, 1982, Mr. Krane met with Dr. Wayne Moss to discuss his diagnosis and the risks and benefits of surgical treatment. On May 27, 1982, Krane voluntarily signed a consent form authorizing exploratory surgery of his neck to be performed by Dr. Moss at St. Anthony Hospital.

On May 28, 1982, Mr. Krane underwent exploratory surgery. Tragically, he died approximately two hours into the procedure. The official cause of death was cardiac arrest of unknown cause while under general anesthesia.

Article II, § 1 of the accidental death and dismemberment policy (policy no. ACC-45500) provides, in relevant part:

"If an employee suffers a bodily injury caused by an accident and as a result of such injury and, to the exclusion of all other causes...

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