Brown v. Hartford Life Companies

• Court: Court of Appeal of Louisiana
• Writing for the Court: WICKER
• Citation: Brown v. Hartford Life Companies, 593 So.2d 1376 (La. App. 1992)
• Decision Date: 31 January 1992
• Docket Number: No. 91-CA-443,91-CA-443
• Parties: Sue Rae Sherman BROWN, et al., v. HARTFORD LIFE COMPANIES, et al. 593 So.2d 1376

Page 1376

593 So.2d 1376

Sue Rae Sherman BROWN, et al., v. HARTFORD LIFE COMPANIES, et al.

No. 91-CA-443.

593 So.2d 1376

Court of Appeal of Louisiana Fifth Circuit.

Jan. 31, 1992.

Walter F. Marcus, III, Lemle & Kelleher, New Orleans, for defendants, appellants.

Maury A. Herman, John B. Loweb, Herman, Herman, Katz & Cotlar, New Orleans, for plaintiffs, appellees.

Before BOWES, GRISBAUM and WICKER, JJ.

WICKER, Judge.

Hartford Life and Accident Insurance Company and Pan-American Assurance Company appeal the award of policy limits, interest, and attorney's fees to the plaintiffs, Sue Rae Sherman Brown, Miriam Brown, and Joel Brown. We amend and, as amended, affirm.

Mr. Brown was the executive director of St. Charles General Hospital. The hospital was owned by National Medical Enterprises; and NME established an employee welfare plan pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sect. 1001 et seq. [The characterization as an ERISA plan was not appealed.] One policy, Hartford # 6R1251, was a regular life insurance policy. These proceeds were paid out, and this policy is not an issue. Another policy, Hartford # GRH-18946, was an accidental death policy with an exclusion for "any loss caused by intentionally self-inflicted injuries, suicide, or attempted suicide, whether sane or insane." A third life insurance policy, Pan-American # 9100178160, excluded coverage for "Suicide of the Insured, while sane or insane, within two years from the policy date...." This latter policy was not an ERISA plan and is governed by Louisiana law.

Mr. Brown's body was found floating in the family swimming pool mid-morning March 17, 1986. His eighteen-year-old son, Joel, pulled him out of the pool. Mr. Brown was already dead, and neither Joel nor ambulance personnel were able to revive him. The exact cause of death was unknown, although drowning appeared to be the most likely explanation.

Hartford and Pan-American deemed Brown's death a suicide and consequently not covered. Mrs. Brown and the children sued. The judge determined that Hartford was arbitrary and capricious in denying the family's claim, and he awarded the Browns $163,000.00 plus interest and attorney's fees of $1,500.00 per day for the four-day trial. He also determined that Pan-American was arbitrary and capricious; and he awarded the family the $50,000.00 policy limits, $50,000.00 in penalties, and $500.00 attorney's fees per day for each day of trial.

On a motion for new trial, the judge increased the attorney fee award against Hartford to $35,000.00, for a total award of $198,000.00. He recognized that he had applied the wrong statute to Pan-American and reduced the award against it to $50,000.00 plus interest. The judge reasoned:

[T]here is one salient that this Court is convinced of at this particular time, that Richard Brown did not commit suicide. There are too many elements that could have caused his death that are reasonable and, in fact, well could have been just as much of a cause of his death as of the actual innuendo of the circumstances here, that death was by drowning. He could have had a heart attack. He could have had an aneurysm. There could have been an element that could have caused his instability, tripped, fallen.

I find no evidence to the fact that he was attached to the barbells. On the contrary, by listening to the maid's testimony very carefully, who first saw the body, she saw his balding head at the top of the water. His hands were out; his arms were out, practically an exact depiction of what the expert testified that a drowned victim would have been.

So I am convinced beyond any doubt that this was not a drowning and that his death was not caused by suicide. It could have been caused by many other reasonable factors that have not been shown because there was no autopsy made. I think maybe the autopsy may have shown considerable elements that would have shown his death by other reasons, but now we don't have that.

Hartford and Pan-American complain of three alleged errors: (1) the judge erred in finding Hartford arbitrary and capricious; (2) he erred in finding that Pan-American owed any benefits and in letting Robert Treuting testify; and (3) he erred in awarding attorney's fees and interest against Hartford. The Brown family answered the appeal, complaining that the attorney's fees were too low and that penalties should have been awarded against Pan-American.

Mr. Brown was a forty-eight-year-old Orthodox Jew. He was devout and belonged to three synagogues. He was actively involved in Jewish affairs, provided a Jewish education for his children, and was instrumental in establishing the Lakeshore Hebrew Day School in Metairie. His relationships with his wife and children were apparently good, although he had broken off an extra-marital affair several months before his death. He experienced some concern over Joel's return from Israel, where he was supposed to have attended a yeshiva for a year.

He was the chief executive officer of St. Charles General Hospital and had been involved with the acquisition of land for expansion purposes. He suffered some work-related problems as a result of these endeavors, and he had been advised that he and his secretary were not moving to the new space as were the rest of the administration. He had recently signed a new employment contract with NME, and his position was apparently secure for several years to come.

Mr. Brown had made a bad investment in an ice cream franchise and stood to lose perhaps hundreds of thousands of dollars as a result. He was quite concerned about this.

In January of 1986, he sought admission to Coliseum Medical Center, where he was treated by Richard Roniger, M.D., a psychiatrist. His major complaint was depression, and he remained at the hospital for about two months. While there, he had passes which allowed him to go home with his family and go to work a part of the day. Dr. Roniger discharged him as improved on March 14, 1986. He was taking medication for depression.

That evening and the following morning, he did not attend Sabbath services with his family, complaining that he was too tired. The following evening, after Sabbath was over, he, Mrs. Brown, and Joel drove to Jackson, Mississippi, to visit Mrs. Brown's family there. [His daughter Miriam was away at school.] On Sunday, Mr. Brown took his wife to the hospital emergency room because she was ill. The family did not return to Metairie until early Monday morning, arriving about eight o'clock.

Mr. Brown told his family he was not going to work because he was too tired. Mrs. Brown left for work at 8:30 A.M.; and Joel left about the same time for an appointment with Dr. Roniger. Joel left Dr. Roniger, picked up the maid, and returned home about 10:00 A.M.

Up until this point, there is not a great deal of conflict in the evidence and testimony. The events of the next hour, however, are contested.

In the Browns' version of events, Joel and the maid, Altha Johnson, came in and couldn't immediately locate Mr. Brown. Joel looked in the house, and Mrs. Johnson went in the back yard. She discovered Mr. Brown floating in the pool, with the bald spot on his head visible and his arms outstretched. Mrs. Johnson called 911 while Joel tried to pull his father out of the water. With Mrs. Johnson's help, he was able to get the body out; but he tore off one of the epaulets from Mr. Brown's raincoat in the process. Joel tried unsuccessfully to perform CPR, and then he went to call Dr. Roniger and his mother.

In the insurance company version, Joel went outside first. He found his father in the pool, pinned to the bottom by some barbells, head down and feet towards the surface of the pool.

When the fire department, ambulance, and corner's investigator arrived, the body was already out of the pool, face up. Mr. Brown was fully clothed in a shirt, jeans, tennis shoes without socks, and a trench coat. There were abrasions on his face but no marks anywhere else on the body. The potentially most important piece of evidence, an autopsy, was never done by the request of the family or someone claiming to speak on behalf of the family, since Orthodox Jews do not permit autopsies except for limited purposes. The barbells were at the bottom of the deep end of the pool.

Mr. Brown could not swim, so the pool was for the rest of the family. He and Joel, and occasionally a family friend, worked out with the barbells near the deep end of the pool. They frequently used the diving board itself as an exercise bench.

The original death certificate read, "Suicide", "Jumped into swimming pool with barbells to weigh body down", "Asphyxia Due To Drowning." When Robert Treuting, M.D. became coroner [Dr. Odom was coroner at the time of death], the family asked him to review the case. As a result, he wrote the Bureau of Vital Records to change the death certificate to read, "Indeterminate as to intent", "Unknown", and "Probable Asphyxia Due to Drowning."

The threshold determination is whether or not Richard Brown committed suicide by drowning. Many witnesses testified over the four-day period of the trial.

ALTHA JOHNSON

Mrs. Johnson, the family maid, discovered Mr. Brown in the pool. The bald spot on his head was visible and his arms were stretched out. She spoke to the police one time and gave no interview to anyone else until the insurance company took her deposition July of 1988. Joel was hysterical and crying really hard. He asked her not to answer any questions while he was on the phone.

JOEL BROWN

He and his father were Orthodox Jews and followed the laws concerning the Sabbath, keeping Kosher, observing holidays, and having morning and evening prayers. He had gone to the yeshiva in Israel but returned December of 1985. His father had been hospitalized for depression from January 1986 until he picked him up on the Friday before his death. Mr. Brown didn't go to temple or to dinner with friends that...