Frame v. Hartford Life & Accident Ins. Co.
| Decision Date | 27 June 2017 |
| Docket Number | Case No. 8:16-cv-2299-T-33AAS. |
| Citation | 257 F.Supp.3d 1268 |
| Parties | Deborah G. FRAME, Plaintiff, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Gregory M. Dell, Dell & Schaefer PA, Hollywood, FL, for Plaintiff.
Jonathan M. Fordin, Jerel C. Dawson, Shutts & Bowen, LLP, Miami, FL, for Defendant.
This matter comes before the Court upon consideration of two cross-Motions for Summary Judgment: (1) Defendant Hartford Life and Accident Insurance Company's Dispositive Motion for Summary Judgment with Statement of Undisputed Facts, filed on March 13, 2017 (Doc. # 22), Plaintiff Deborah Frame's Response, filed on April 12, 2017 (Doc. ## 25, 26), and Hartford's Reply, filed on April 26, 2017 (Doc. # 29); and (2) Plaintiff's Motion for Summary Judgment, filed on March 13, 2017 (Doc. # 24), Hartford's Memorandum in Opposition, filed on April 13, 2017 (Doc. # 28), and Plaintiff's Reply, filed on April 26, 2017 (Doc. # 30). On June 12, 2017, Hartford filed a Notice of Supplemental Authority, Prelutsky v. Greater Ga. Life Ins. Co., No. 16-15900, 692 Fed.Appx. 969, 2017 WL 2406730 (11th Cir. June 2, 2017). (Doc. # 31). For the reasons that follow, Hartford's Motion for Summary Judgment is GRANTED and Plaintiff's Motion for Summary Judgment is DENIED.
At 9:00 p.m. on September 2, 2015, Ordeth Frame was fatally injured in a single-car collision in Bradenton, Florida. (H1926, H1208).1 Frame's car traveled off University Parkway, struck at least one tree, and rolled over. (H1926, H1208). Frame was transported by ambulance to Lakewood Ranch Medical Center, where he was pronounced dead at 10:04 p.m. (H1926). The autopsy report listed cause of death as blunt impact injuries to the head
, neck, torso, and extremities. (H1928).
At the time of the accident, Frame was insured under an Accidental Death and Dismemberment Policy through his employer, which was issued by Defendant Hartford. (H54–H55). On September 22, 2015, Plaintiff, who is Frame's wife, submitted a claim under the policy for the principal sum of $500,000. (H2276–H2281). On October 19, 2015, Hartford denied the claim. (H2284). The instant action, which is brought pursuant to the Employee Retirement Income and Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), turns on whether Hartford lawfully denied benefits under the policy.
In denying Plaintiff's claim, Hartford invoked the policy's intoxication exclusion, which states that the policy "does not cover any loss caused or contributed to by ... Injury sustained while Intoxicated." (H66–H67). The policy defines "Intoxicated" as follows:
(H67). Hartford relied on Frame's autopsy report, which listed his blood alcohol level as 0.149 gm/dL. (H2284, H1928). Under Florida law, a blood alcohol level of 0.08 or higher yields a legal presumption of "under the influence." See Fla. Stat. § 316.1934(2)(c).
On March 28, 2016, Plaintiff appealed Hartford's decision and submitted several new documents. (H793–H796). Key evidence included affidavits from Frame's financial advisor, Marjorie DeCanio, and her husband Ron DeCanio, who dined with Frame just before the accident. (H794). According to the DeCanios, when they met Frame at approximately 6:45 p.m., "there was no indication whatsoever that [Frame] had consumed any alcohol prior to dinner." (H798, H801). While at the restaurant, Frame drank water and two glasses of Chardonnay wine "in a small standard wine glass," and he ate Chinese food and sushi. (H798, H801). The DeCanios averred that Frame exhibited no indication that he was impaired when he left the restaurant: his speech was fluent, his eyes were not bloodshot or glassy, his balance was not impaired, and they smelled no alcohol on his breath. (H799, H802). The dinner ended between 8:30 p.m. and 8:45 p.m., approximately 15 to 30 minutes before the accident. (H798–H799, H801–H802).
Plaintiff's second piece of key evidence was a 19–page report from Stefan Rose, M.D., a forensic toxicologist. (H795, H1579–H1597). Dr. Rose opined that based on Frame's weight of 225 pounds, Frame would have needed to consume ten glasses of wine at dinner in order to achieve a blood alcohol level of 0.149 gm/dL, and assuming that Frame consumed only two glasses of wine, his blood alcohol level should have been 0.04 gm/dL or lower. (H1596). Dr. Rose concluded that the blood alcohol level listed in the autopsy report was "erroneous, inaccurate and unreliable for more than twenty forensic reasons." (H1582). Those reasons are summarized below.
First, Dr. Rose observed that the hospital at which Frame's blood was tested, Sarasota Memorial Hospital ("SMH"), possesses only a clinical accreditation, not a forensic accreditation. (H1583). Dr. Rose also observed that the blood sample lacked an official chain-of-custody document in violation of SMH's own policies, and the evidence label on the blood sample was not placed over the top of the tube, also in violation of SMH policy. (H1584).
Second, Dr. Rose raised questions about the source of the blood sample. The sample was described as a "peripheral" blood sample, but it did not identify the anatomical source or specify whether it was arterial or venous blood. (H1585, H1587). Dr. Rose opined that this was critical information because arterial blood has a 40% or higher ethanol concentration than venous blood during alcohol absorption, and there also is a potential for a large variation in blood alcohol level between anatomic sites. (H1585–H1589). According to Dr. Rose, multiple blood samples should have been tested, which SMH failed to do. (H1586, H1589).
With respect to the blood sample itself, Dr. Rose stated that testing "detected the products of fermentation," as evidenced by two extra volatile organic compound peaks in the chromatograms that were not present in the quality-control chromatograms. (H1588, H1596). In addition, the blood sample appeared to have been stored in a grey stopper tube, a type of tube that contains less than the recommended amount of a preservative that prevents fermentation. (H1588–H1589). In light of these issues, Dr. Rose maintained that SMH should have done further testing to determine the validity of the sample. (H1588–H1589).
Dr. Rose next questioned SMH's testing methods. SMH used two tests: enzyme assay testing and single-column headspace gas chromatography
with flame ionization detector. (H1590). Dr. Rose explained that enzyme assay testing is not approved for forensic use, and it is particularly unreliable for traumatic "crush" injuries such as Frame's because the crushing produces extra lactate that in turn raises the levels of the tested enzyme. (H1590). With respect to the gas chromatography test, Dr. Rose stated that he was not aware of any forensic lab using single-column gas chromatography ; rather, dual-column gas chromatography with mass spectrometry is "the gold standard" for blood alcohol testing. (H1590–H1591, H1596). And as a general matter, Dr. Rose maintained that post-mortem blood testing does not necessarily predict the blood alcohol level at the time of death due to various factors including medication and fluid administration, trauma, and the possibility that wine from the stomach could contaminate the blood sample. (H1587, H1595–H1596).
Finally, Dr. Rose questioned the validity of the test result. Dr. Rose opined that the chromatograms displayed asymmetric peak shapes and significant tailing, rendering them unreliable and "a cause of inaccurate quantitation (measurement of the amount of ethanol in the blood sample)." (H1591–H1592, H1596). Dr. Rose also asserted that SMH intentionally deleted potentially relevant data from the blood sample, as evidenced by the notation, "Small Noise Peaks Clipped." (H1591). Dr. Rose further noted that the test result lacked an uncertainty measurement, rendering it unreliable. (H1594–H1595).
In addition to Dr. Rose's report, Plaintiff submitted records from Manatee County Emergency Medical Services ("EMS"), the emergency responders at Frame's accident scene. (H795). Manatee County EMS estimated that Frame's car was traveling at 50 miles per hour. (H1208). That estimate conflicted with a statement in an investigation report completed by Abby Andrus, the Chief Investigator for the District Twelve Medical Examiner. (H1926–H1927). Andrus reported that Corporal Carroll at the Florida Highway Patrol ("FHP") estimated that Frame was traveling 80 miles per hour in a 45–mph zone while attempting to pass a vehicle on the right side. (H1926). Corporal Carroll stated that there were no signs of braking or evasive maneuvers and no adverse road conditions, although he also observed that the road was not well-lit and had no street lights. (H1927).
A separate section in Andrus's report noted that there was "[n]o obvious odor of [alcohol]," without identifying the source of that observation. (H1925). Corporal Carroll reported that "wine was discovered on scene" and "intoxication was suspected."2 (H1927). Andrus herself spoke with Frame's sister, who described him as an alcoholic. (H1927).
After Hartford received Plaintiff's appeal and supporting documents, Laurie Tubbs, the appeals specialist, sent the file back to the original claims examiner, Jeffrey Seltzer, to review the new information. (Doc. # 24 at 6–9; H549). Seltzer and a supervisor characterized the evidence as "an abundance of paper" with no new medical information, only Dr. Rose's "opinion." (H513–H514). After Plaintiff contacted Hartford to demand that the information be independently reviewed as an appeal, consistent with Plaintiff's ...
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