Foster v. Stonebridge Life Ins. Co.

• Decision Date: 21 December 2012
• Docket Number: No. 106,721.,106,721.
• Citation: 50 Kan.App.2d 1,327 P.3d 1014
• Parties: Tina D. FOSTER, Appellee, v. STONEBRIDGE LIFE INS. COMPANY, Appellant.
• Court: Kansas Court of Appeals

50 Kan.App.2d 1
327 P.3d 1014

Tina D. FOSTER, Appellee,
v.
STONEBRIDGE LIFE INS. COMPANY, Appellant.

No. 106,721.¹

Court of Appeals of Kansas.

Dec. 21, 2012.

Curtis L. Tideman, of Lathrop & Gage LLP, of Overland Park, and Rebecca J. McMahon, of the same firm, of Kansas City, Missouri, for appellant.

David A. Hoffman and Donald W. Vasos, of Vasos Law Offices, of Fairway, for appellee.

Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.

BRAZIL, J.

This appeal arises out of a claim made under an accidental death insurance policy. The ultimate issue is whether the insured's accident was the proximate cause of her death. Marie Foster, the insured, tripped over a curb, fell, and broke her hip on August 1, 2009. On August 2, she had hip surgery, and on August 3, she died after suffering cardiac arrest. Marie's daughter, Tina Foster, made a claim for benefits under Marie's accidental death

50 Kan.App.2d 4

policy issued by Stonebridge Life Insurance Company, which Stonebridge denied because it found that Marie's death was not due to bodily injury. Foster filed suit against Stonebridge, and the district court ultimately entered judgment in favor of Foster for the policy's accidental death benefits and for attorney fees under K.S.A. 40–256. Stonebridge challenges the district court's rulings at summary judgment and trial.

We affirm and grant Foster's motion for appellate attorney fees in the amount of $46,857.50, but we deny her request for costs in the amount of $504.79.

Marie held an accidental death insurance policy issued by Stonebridge Life Insurance Company with an effective date of May 1, 1991. The policy provided accidental death and dismemberment benefits of $40,000.

On August 1, 2009, Marie accidentally fell outside of her home and suffered a hip fracture, also known as an intertrochanteric femoral fracture. She was transported by ambulance to Shawnee Mission Medical Center, and on August 2, 2009, she had hip surgery. After surgery, Dr. Wade Williams noted that Marie had increasing hypoxia, which Williams initially suspected may be due from over sedation, but she received Narcan and remained hypoxemic. Dr. Williams also noted that Marie had findings of atelectasis /infiltrate in the lower lobes and it was possible Marie aspirated during surgery. "Atelectasis" means "[d]ecreased or absent air in the entire or part of a lung, with resulting loss of lung volume." Stedman's Medical Dictionary 161 (27th ed.2000). "Aspirate" means "[t]o inhale into the airways foreign particulate material, such as vomitus." Stedman's Medical Dictionary 156 (27th ed.2000). Marie was transferred to the intensive care unit.

Marie had a myocardial infarction at approximately 9 p.m. on August 2, the day of her surgery. Approximately 3 hours after her surgery, Marie's saturation of partial pressure of oxygen (SpO2) rate was 49, which is considered an indicator of aspiration, and she had a drop in hemoglobin. She also had an increase in troponin, a cardiac enzyme used by emergency room doctors to look for evidence of heart attack, and ST

327 P.3d 1020

elevation on an EKG, both cardiac complications. Orthopedic surgeon Dr. John Pazell, the plaintiff's

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expert witness, testified that these conditions would cause the heart to function abnormally because it would not be getting the proper amount of oxygen.

On August 3, 2009, Marie was taken to the cardiac catheterization lab and was being prepped for cardiac catheterization and coronary angiography when she coded. Marie died at 12:20 p.m.

At the time of Marie's fall and death 2 days later, all premiums due under the policy were paid and the certificate of insurance was in full force and effect. Following Marie's death, Tina Foster, Marie's beneficiary and the plaintiff in this lawsuit, made a claim for the policy proceeds.

Since Foster filed her claim for benefits, the issue in this case has been whether under the accidental death policy Marie's fall resulted "directly and independently of all other causes," as required by the policy. This factual debate has centered on Marie's preexisting heart conditions.

The documents in Marie's insurance claim file contained conflicting opinions on the cause of death. The certificate of death completed by Dr. Lawrence Dall listed the manner of death as "natural" and the immediate cause of death as cardiac arrest due (or as a consequence of) myocardial infarction. On the other hand, the proof of death—the attending physician's statement completed by Dr. Thomas Snodell, Marie's general practitioner, listed the primary cause of death as "fall" and the secondary or contributory cause of death as "cardiac arrest."

On November 9, 2009, Shryl Clark, a technical claims specialist for Stonebridge, sent a letter to Dr. Dall, the pronouncing and certifying physician on the death certificate, asking Dr. Dall additional questions about Marie's death. Specifically, Clark asked Dr. Dall if Marie's injuries from her fall caused her myocardial infarction and cardiac arrest and if any of the injuries Marie suffered as a result of her fall were the proximate cause of her death. Dr. Dall answered "no" to both questions.

On December 21, 2009, Marie's claim was sent to Stonebridge's legal department because Foster had an attorney involved in her benefits claim. On December 24, 2009, Clark recommended denying Foster's claim for benefits, and claims manager Lauraann

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Allen followed Clark's recommendation and sent the denial letter Clark drafted to Foster's attorney.

On February 16, 2010, Foster filed this lawsuit against Stonebridge asking for the policy benefits, reasonable attorney fees, and costs. Stonebridge filed a motion for partial summary judgment on attorney fees, which the court denied. Stonebridge then filed a renewed motion for summary judgment on coverage and attorney fees. The court denied the motion, and the case proceeded to a bench trial.

The trial judge found that Marie's death was covered under the policy and that Stonebridge's denial was "without just cause or excuse" and, therefore, ordered Stonebridge to pay Foster attorney fees and costs of $41,182.65 pursuant to K.S.A. 40–256. Stonebridge timely appeals.

ANALYSIS

Denial of Stonebridge's renewed motion for summary judgment on the coverage issue

This court's standard of review for a district court's grant or denial of a motion for summary judgment is well established:

"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal,

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we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).

To the extent this court must interpret the certificate of insurance in resolving this question, insurance contract interpretation is a question of law. Iron Horse Auto, Inc. v. Lititz Mut. Ins., 283 Kan. 834, 838–39, 156 P.3d 1221 (2007).

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Stonebridge argues that its renewed motion for summary judgment should have been granted on the coverage issue because Foster presented no evidence creating a genuine issue of material fact as to whether Marie's death resulted directly and independently from her August 1, 2009, fall. This argument requires an understanding of the policy language at issue.

Regarding the burden of proof, because Foster sought to recover under the general provisions of the policy, not an exclusion, she had the "burden of proving the injury was of a type included in the general provisions of the insurance contract." Clardy, Administrator v. National Life & Accident Ins. Co., 1 Kan.App.2d 1, 5, 561 P.2d 892 (1977) ; see Kansas Farm Bureau Ins. Co. v. Reynolds, 16 Kan.App.2d 326, 329–30, 823 P.2d 216 (1991).

The policy provides in relevant part:

"If a Covered Person is:

1. Injured in an accident not covered under Part I or Part II; and

2. not otherwise excluded in the policy, we [Stonebridge] will pay the applicable benefit specified in Part III of the Schedule of Insurance for the appropriate Loss as shown in the Schedule of Losses and Benefits below."

The definitions section of the policy defines "injured" as "having suffered an injury."

"Injury" is defined as

...