Foster v. Stonebridge Life Ins. Co., 106,7211
| Decision Date | 26 March 2014 |
| Docket Number | No. 106,7211,106,7211 |
| Parties | TINA D. FOSTER, Appellee, v. STONEBRIDGE LIFE INS. COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
SYLLABUS BY THE COURT
1.
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. To preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, 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.
2.
To the extent a court must interpret the certificate of insurance in resolving a question, insurance contract interpretation is a question of law.
3.
When an insured seeks to recover under the general provisions of a policy of insurance, not an exclusion, the insured has the burden of proving the injury was of a type included in the general provisions of the insurance contract.
4.
An appellate court reviews a trial court's findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the trial court's conclusions of law. Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. An appellate court has unlimited review of conclusions of law.
5.
In the event an insured sustains physical disability or death resulting from an accidental injury which aggravates or causes a dormant disease or ailment to become active, the disability or death will be regarded as having been caused solely by the injury, so as to render an insurer liable therefore under an accident policy, even though such disability or death might later have resulted regardless of the accident and even though the accident might not have affected a normal person to the same extent.
6.
Generally, a litigant must object to inadequate findings of fact and conclusions of law to give the trial court the opportunity to correct them; and in the absence of an objection, omissions in findings will not be considered on appeal. Where no objection is made, an appellate court will presume the trial court found all facts necessary to support its judgment. Nevertheless, when a record on appeal does not support such a presumption, an appellate court must remand for additional factual findings and legal conclusions.
7.
Proximate cause is a question of fact.
8.
K.S.A. 60-404 states that a judgment shall not be reversed on account of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.
9.
When a trial court has authority to award attorney fees, an appellate court has the authority to award attorney fees under an abuse of discretion standard.
10.
K.S.A. 40-256 states that in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201, if it appears from the evidence that such company has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney fee for services in such action, including any proceedings upon appeal, to be recovered and collected as a part of the costs.
11.
Whether an insurance company's refusal to pay is without just cause or excuse is determined on the facts and circumstances in each case. If there is a bona fide and reasonable factual ground for contesting an insured's claim, there is no failure to pay without just cause or excuse.
12.
An insurer has a duty to make a good-faith investigation of the facts surrounding a claim. The circumstances are to be judged as they would appear to a reasonably prudentperson having a duty to investigate in good faith and to determine the facts of the controversy. When reviewing this question, a court looks at the circumstances confronting the insurer when the payment of loss is denied.
13.
Good faith on the part of the insurer implies honesty, fair dealing, and adequate information.
14.
Implicit in the duty to investigate is the requirement that the investigation be adequate and fair. Adequacy and fairness means that the insurer has a duty to diligently search for evidence which supports insured's claim and not merely seek evidence upholding its own interests.
15.
Supreme Court Rule 7.07(b) (2011 Kan. Ct. R. Annot. 64) permits an appellate court to award attorney fees for services on appeal in any case in which the trial court had authority to award attorney fees.
Appeal from Wyandotte District Court; CONSTANCE M. ALVEY, judge. Opinion filed December 21, 2012. Affirmed.
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 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 asvomitus." 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 elevation on an EKG, both cardiac complications. Orthopedic surgeon Dr. John Pazell, the plaintiff's 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 asa 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...
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