Filek v. Nat'l Union Fire Ins. Co. of Pittsburgh

• Decision Date: 29 September 2016
• Docket Number: Case No. 14-cv-14088
• Parties: THE ESTATE OF JEFFREY LYNN FILEK, deceased, by the Personal Representative, JEFFREY D. FILEK, Plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

THE ESTATE OF JEFFREY LYNN FILEK,deceased, by the Personal Representative,JEFFREY D. FILEK, Plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Defendant.

Case No. 14-cv-14088

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

September 29, 2016

Paul D. Borman United States District Judge

OPINION AND ORDER (1) GRANTING DEFENDANT'S AMENDED MOTION FOR SUMMARY JUDGMENT (ECF NO. 15), (2) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 16), AND (3) DENYING AS MOOT PLAINTIFF'S MOTION TO STRIKE (ECF NO. 14)

This action involves Plaintiff's claim that the decedent, Jeffrey Lynn Filek, an over-the-road truck driver, suffered an "occupational accident" when he died from a pulmonary embolism while on the job, in his truck, and parked overnight in a truck stop. Plaintiff claims that Mr. Filek's death by pulmonary embolism was a covered loss under a policy of occupational accident insurance issued by the Defendant, National Union Fire Insurance Company ("National Union"). Plaintiff also claims that National Union denied the claim in bad faith, entitling Plaintiff to treble damages. National Union responds that the occupational accident policy does not cover the Filek claim because: (1) Mr. Filek's pulmonary embolism was not an "injury" as defined under the occupational accident policy because it was not caused by an accident and (2) Mr. Filek's pulmonary embolism was a "sickness or disease" that was excluded from coverage under the policy.

The parties filed cross-motions for summary judgment (ECF Nos. 15, 16) and the Court held a hearing on March 16, 2016. Following the hearing, the parties engaged in facilitative mediation but were unable to resolve the matter. For the reasons that follow, the Court now GRANTS Defendant's motion for summary judgment, DENIES Plaintiff's motion for summary judgment and DENIES AS MOOT Plaintiff's motion to strike the testimony of Defendant's expert.

I. BACKGROUND

A. The Coroner's Report

On March 2, 2012, Jeffrey Filek, an over-the-road truck driver, suffered a pulmonary embolism while parked and seated in the cab of his truck, apparently working on his log sheets at the time of the fatal event. Def.'s Mot. Ex. B, Certificate of Death; Ex. C, Coroner's Report; Exhibit L, Deposition of Dr. Edward Adelstein, Deputy Medical Examiner at the University of Missouri, 38:13-23. Dr. Adelstein's Coroner's Report concludes: "In my opinion, the cause of death of Jeffrey Filek is a large saddle pulmonary embolus. His manner of death is ruled natural." Def.'s Mot. Ex. C, Coroner's Report 1. Dr. Adelstein was required to select one of five categories for determining the manner of death: suicide, homicide, undetermined, natural or accidental. Adelstein Dep. 19:15-20. He chose natural.

Mr. Filek had phoned his wife at approximately 4:00 a.m. the morning of his death and told her that he was having chest pain. Adelstein Dep. 22:10-13, 48:2-4. The autopsy revealed that Mr. Filek had consumed five 81mg (low dose) aspirin that were "just laying in his stomach" and had not been absorbed into his system at the time of death. Adelstein Dep. 29:3-13. From this, Dr. Adelstein surmised that Mr. Filek "had chest pain or he had shortness of breath and the only thing he knew to do was to take aspirins like they tell you to do. But it didn't do any good." Id. at 29:5-10.

Dr. Adelstein offered the following layman's definition of a pulmonary embolism:

In layman's terms it means that a clot forms generally in the lower part of the body and travels up the large vein that goes through the heart and that large vein then goes into the right side of the heart. And the right side of the heart pumps the blood directly to the lungs. And then that vein - and then when that clot gets up there it gets out the pulmonary artery and the pulmonary artery then it either breaks off or it fills up the pulmonary artery on both sides, hence the saddle, meaning it covers both sides.

And when that happens, death is pretty usually instantaneous. . . . [W]hen you have what we call a massive pulmonary saddle embolus, then the blood is cut off instantly to the - to the lungs and there's no oxygen given to the heart and the heart becomes irritable arythmia and dies.

Adelstein Dep. 11:23-12:13.

As to the cause of pulmonary emboli generally, Dr. Adelstein offered the following explanation:

The causes are variable. I would say today the most common cause that we see is associated with people that have a lifestyle that is pretty stagnate that they don't move a lot. It's often seen in people that are obese, but not always. It's often seen in the - and my most common history is in people that sit for long period of time in airplanes and in this case - and some in trucks.

But mainly the common denominator would be people who sit for a long time that are not in great shape, don't get up, they have dilated veins of the lower extremities and those clots form there. It could occur in fairly healthy people that sit, such as the guy Dan Quail [sic], who as you know was the vice president.

* * *

There are other people that have what I would call hypercoagulability syndromes. That is they want to clot. Okay? And these are people that have genetic abnormalities. . . . And if that would have been an issue here, he would have already had problems.

Adelstein Dep. 12:16-13:14.

Dr. Adelstein also explained that obesity "does increase the risk somewhat," but would not be a sole cause. Id. at 13:15-23. In the morbidly obese population, there is "an extraordinary highrisk of pulmonary emboli." Id. at 14:5-10. Dr. Adelstein further explained that Mr. Filek, who was 6'1" and weighed 247 pounds, was not in the "morbidly obese" category, but was an average overweight American who ideally should have weighed around 180 to 190 pounds. Id. at 14:11-13; 15:1-10. Mr. Filek, who had type II diabetes, had decreased his weight in the ten years preceding his death from 300 pounds to 247 pounds at the time of his death, indicating to Dr. Adelstein that Mr. Filek had been following medical advice on controlling his Type II diabetes. Id. at 15:11-15. To Dr. Adelstein's knowledge, diabetes is not a risk factor for a pulmonary embolus. Id. at 14:20-23. Mr. Filek also suffered from cardiac disease, which Dr. Adelstein identified as a risk factor, but one that is difficult to quantify. Id. at 39:5-14. In sum, Dr. Adelstein described Mr. Filek as "not a healthy individual." Id. at 16-19. Dr. Adelstein was clear, however, that Mr. Filek's cardiac disease did not cause his pulmonary embolism and neither was there any evidence of trauma or some type of traumatic accident that caused or contributed to the pulmonary embolism. Id. at 53:11-18.

At the time of his deposition, Dr. Adelstein expressed the further opinion that Mr. Filek's pulmonary embolism was "strongly related," or "more likely than not" related, to his "choice of occupation" as a truck driver. Adelstein Dep. 29:18-30-3; 20:4-9; 21:5-13. Dr. Adelstein stops short, however, of opining that Mr. Filek's pulmonary embolus was caused by his occupation. Id. Dr. Adelstein explains that sitting for extended periods of time is a risk factor for a pulmonary embolism and "generally speaking, people who have inactivity, people who sit for a long time tend to form more emboli tha[n] other people do." Id. at 54:2-3, 55:5-7. Dr. Adelstein testified that people who must sit for long periods of time can decrease the risk of pulmonary emboli by getting up and moving every three to four hours and wearing compression socks while sitting. Id. at 36:1-9.

Dr. Adelstein testified that the risk to truck drivers of developing a pulmonary embolism was considered "a normal" risk of the occupation. Discussing a study done in Copenhagen, Denmark involving truck drivers, the risk of forming such emboli was well demonstrated:

[S]o they compared [the drivers] to a non-group and their conclusions were there is mounting evidence that prolonged cramping with - increases the risk of venous thrombosis and pulmonary embolus. So I consider it as it's a normal risk. And in this article there's also 30 other articles that all say, yes: sitting for a periods of long times [sic] increases your chances of getting a pulmonary embolus.

Adelstein Dep. 35:12-25.

Dr. Adelstein was not aware of when Mr. Filek had last driven his truck prior to his death, nor was he aware of how long Mr. Filek had been sitting just prior to his death, or whether he had been walking around or perhaps laying down for some period of time before suffering the pulmonary embolism. Adelstein Dep. 38:24-35:4. Dr. Adelstein could not say to a reasonable degree of medical certainty that sitting was the only risk factor or cause of Mr. Filek's pulmonary embolism, conceding: "There may be other risk factors that I don't know." Id. at 36:22-25.

B. National Union's Claims Investigation and Denial of the Filek Claim

At the time of his death, Mr. Filek was insured by National Union, a subsidiary of AIG Corporation, under a "Truckers Occupational Accident Insurance" Policy, Policy Number TRK 9028670-A, which included the following Riders: Excess Benefits Rider, Hemorrhoids Rider, Hernia Benefit Rider, Non-Occupational Coverage Rider, Seat Belt Benefit Rider, Pre-Existing Condition Rider and Advance Payment Rider. Pl.'s Mot. Ex. B, Policy, Policy Riders and Endorsements, PgID 526. The Policy provides the following with respect to an Accidental Death Benefit:

Accidental Death Benefit. If Injury to the Insured Person results in death within the Incurral Period shown in the Schedule, the Company will pay the Principal Sumshown in the Schedule. The Incurral period starts on the date of the accident that caused such Injury.

Pl.'s Mot. Ex. B, Policy Section IV, BENEFITS, PgID 534. The Policy defines "Injury" as follows:

Injury means bodily Injury to an Insured Person caused by an Occupational accident while coverage is in force under this Policy, which results directly from and

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