948 F.2d 1050 (7th Cir. 1991), 91-1683, Senkier v. Hartford Life & Acc. Ins. Co.

Docket Nº:91-1683.
Citation:948 F.2d 1050
Party Name: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.
Case Date:December 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
FREE EXCERPT

Page 1050

948 F.2d 1050 (7th Cir. 1991)

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

December 3, 1991

Argued Oct. 18, 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

Page 1051

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...

To continue reading

FREE SIGN UP