Senkier v. Hartford Life & Acc. Ins. Co., 91-1683

• Decision Date: 03 December 1991
• Docket Number: No. 91-1683,91-1683
• Citation: 948 F.2d 1050
• Parties: 14 Employee Benefits Cas. 2317 Lynn D. SENKIER, Special Administrator of the Estate of Donna Jean Dereng, deceased, Plaintiff-Appellant, v. HARTFORD LIFE & ACCIDENT INSURANCE COMPANY and Neiman-Marcus Group Employees Benefits Committee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1050

948 F.2d 1050

14 Employee Benefits Cas. 2317

Lynn D. SENKIER, Special Administrator of the Estate of Donna Jean Dereng, deceased, Plaintiff-Appellant, v. HARTFORD LIFE & ACCIDENT INSURANCE COMPANY and Neiman-Marcus Group Employees Benefits Committee, Defendants-Appellees.

No. 91-1683.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 18, 1991.

Decided Dec. 3, 1991.

A. Denison Weaver (argued), Hugh J. McCarthy, McCarthy & Associates, Chicago, Ill., for Lynn D. Senkier.

Joseph J. Hasman, Ernest W. Irons (argued), Sherri L. Giffin, Peterson & Ross, Chicago, Ill., for Hartford Life & Acc. Ins. Co.

Eugene E. Gozdecki, Paul L. Zido, David S. Americus, Gozdecki & Zido, Chicago, Ill., for Neiman-Marcus Group Employee Benefits Committee.

Before POSNER, FLAUM, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Is a medical mishap an "accident" under an insurance policy that provides benefits for accidental injuries that cause the death of the insured? The question arises in this case under ERISA (Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.) because the group accident policy at issue in this case was part of an employee welfare plan. But the answer ("no," said the district judge) does not depend on any specific provisions of ERISA, and we must therefore exercise our power to formulate federal common law principles suitable for the governance of pension and employee benefit trusts. Fox Valley & Vicinity Construction Workers Pension Fund v. Brown, 897 F.2d 275, 281 (7th Cir.1990) (en banc); Wickman v. Northwestern National Ins. Co., 908 F.2d 1077, 1084 (1st Cir.1990).

The insured, a 36-year-old woman suffering from Crohn's Disease (a chronic inflammatory disease of the intestine), was admitted to a hospital with a tentative diagnosis of intestinal obstruction. A catheter was inserted in a vein beneath her clavicle for the purpose of administering nourishment intravenously. This is a standard treatment for Crohn's. Harrison's Principles of Internal Medicine 431-33 (Jean D. Wilson et al. eds., 12th ed.1991). Several days later she died suddenly. The catheter had become detached from its original position, had entered the heart through a vein, and had punctured the heart. The preliminary death certificate listed the puncture as the cause of death, but the final certificate listed marked nutritional deficiency resulting from Crohn's as the cause of death.

The summary plan document which ERISA requires be given the participant in an ERISA plan (see 29 U.S.C. §§ 1021(a), 1022(a)(1), and 1024(b)(1)) describes the insurance policy in this case as "offer[ing] full 24 hour protection against accidents anywhere in the world, whether you are on business, pleasure, vacation, at home, or on or off the job," with the usual exclusions, such as suicide, a military mishap, or a plane crash unless the insured is an airline passenger. The document refers the participant to the insurance policy itself for details, and the policy expressly excludes not only "sickness or disease" but also "medical or surgical treatment of a sickness or disease." This still leaves a question whether a mishap in the course of treatment should be classified as part of the treatment itself or as an accident, but only a tiny question, in light of numerous cases illustrated by Whetsell v. Mutual Life Ins. Co., 669 F.2d 955 (4th Cir.1982); Castorena v. Colonial Life & Accident Ins. Co., 107 N.M. 460, 760 P.2d 152 (1988); Reid v. Aetna Life Ins. Co., 440 F.Supp. 1182 (S.D.Ill.1977), aff'd without opinion, 588 F.2d 835 (7th Cir.1978), and Krane v. Aetna Life Ins. Co., 698 F.Supp. 220 (D.Colo.1988); contra, Mayfield v. Metropolitan Life Ins. Co., 585 S.W.2d 163, 168-69 (Mo.App.1979).

The plaintiff argues that her decedent never received the policy. So what? Nothing in ERISA requires that the insurance policy summarized in the summary plan document be given the insured. The insured is protected by the fact that, in the event of a discrepancy between the coverage promised in the summary plan document and that actually provided in the policy, he is entitled to claim the former. Hansen v. Continental Ins. Co., 940 F.2d 971, 982 (5th Cir.1991); Edwards v. State Farm Mutual Automobile Ins. Co., 851 F.2d 134, 136 (6th Cir.1988); McKnight v. Southern Life & Health Ins. Co., 758 F.2d 1566 (11th Cir.1985). The statute requires that the summary plan document be "sufficiently accurate and comprehensive to reasonably apprise" the plan participants of their rights under the plan. 29 U.S.C. § 1022(a)(1). This requirement entitles the participant to rely on the summary plan document, and if he does the plan is estopped to deny coverage.

But only if there is a contradiction between the summary plan document and the policy. There is not in a case such as this where the policy clarifies rather than contradicts the summary. And even if we are not to consider the language of the policy itself but only that of the summary plan document, the plaintiff must lose because a policy of accident insurance does not reach iatrogenic injuries, that is, injuries resulting from medical treatment. Any time one undergoes a medical procedure there is a risk that the procedure will inflict an injury, illustrating the adage that "the cure is worse than the disease." The surgeon might nick an artery; might in fusing two vertebrae to correct a disk problem cause paraplegia; might in removing a tumor from the patient's neck sever a nerve, so that the patient could never hold his head upright again. A simple injection will, in a tiny fraction of cases, induce paralysis. An injection of penicillin could kill a person allergic to the drug. A blood transfusion can infect a patient with hepatitis or AIDS. All these injuries are accidental in the sense of unintended and infrequent. But they are not "accidents" as the term is used in insurance policies for accidental injuries. The term is used to carve out physical injuries not caused by illness from those that are so caused, and while injuries caused not by the illness itself but by the treatment of the illness could be put in either bin, the normal understanding is that they belong with illness, not with accident.

That at least is our view, bearing in mind our responsibility to make the best rule of federal common law we can to guide the bench and bar of this circuit through a welter of conflicting precedent. We acknowledge a glacial drift, described in John Dwight Ingram & Lynne R. Ostfeld, "The Distinction Between Accidental Means and Accidental Results in Accidental Death Insurance," 12 Fla.St.U.L.Rev. 1 (1984), toward a liberal construal of "accident" designed to maximize the beneficiary's prospects of recovering insurance proceeds. In the old days courts distinguished between accidental means and accidental result. Death is almost always accidental in the sense of unintended by the deceased, so if an accidental result sufficed, coverage would be assured regardless of the cause of death. Suppose a person who doesn't know he's allergic to penicillin contracts pneumonia and is given an injection of penicillin--the standard treatment for pneumonia--and dies, a foreseeable, in the sense of not improbable, consequence for one who has such an allergy. Or suppose, as sometimes happens, that a person undergoing surgery never recovers consciousness after being put under the general anesthetic. In either case death is unexpected, an accident, but there is nothing accidental in the means by which the person died and therefore (under the traditional view) he can't recover under an accident policy. Order of United Commercial Travelers v. Shane, 64 F.2d 55, 59 (8th Cir.1933); Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W. 907, 921 (1924); Beneficial Standard Life Ins. Co. v. Forsyth, 447 So.2d 459, 462 (Fla.App.1984); Wilson v. Travelers Ins. Co., 29 A.D.2d 312, 287 N.Y.S.2d 781, 784. It would be different if he twisted his knee playing tennis and the injury caused blood clots that embolized to his lungs and killed him. Insurance Co. of North America v. Thompson, 381 F.2d 677, 681 (9th Cir.1967); Key Life Ins. Co. v. Gulledge, 245 Ark. 74, 431 S.W.2d 245 (1968); Brown v. State Mutual Life Ins. Co., 377 So.2d 355, 363 (La.App.1979); National Life Ins. Co. v. Patrick, 28 Ohio App. 267, 162 N.E. 680 (1927); Chase v. Business Men's Assurance Co., 51 F.2d 34, 36 (10th Cir.1931) (dictum). Then the means of death--the injury to the knee--would be an accident, and the death would be covered.

Yet as Ingram and Ostfeld explain, many courts that adhere to the means-end distinction, and more that replace it by a standard of foreseeability, would find coverage even in our hypothetical penicillin case. E.g., INA Life Ins. Co. v. Brundin, 533 P.2d 236, 243 n. 24 (Alaska 1975); Korfin v. Continental Casualty Co., 5 N.J. 154, 74 A.2d 312 (1950); International Travelers' Ass'n v. Francis, 119 Tex. 1, 23 S.W.2d 282 (1930); Aetna Life Ins. Co. v. Brand, 265 Fed. 6 (2d Cir.1920). Many of the cases, though, involve workers' compensation or the equivalent--that is, insurance designed to protect workers against a wide range of job-site hazards, and in that setting a work-related illness such as typhoid fever from drinking contaminated water at...