Gin v. Pennsylvania Life Ins. Co., No. A109541.

• Court: California Court of Appeals
• Writing for the Court: Kline
• Citation: 36 Cal.Rptr.3d 571,134 Cal.App.4th 939
• Parties: Kimberly GIN, Plaintiff and Appellant, v. PENNSYLVANIA LIFE INSURANCE COMPANY, Defendant and Respondent.
• Docket Number: No. A109541.
• Decision Date: 09 December 2005

36 Cal.Rptr.3d 571 134 Cal.App.4th 939 Kimberly GIN, Plaintiff and Appellant,
v.
PENNSYLVANIA LIFE INSURANCE COMPANY, Defendant and Respondent. No. A109541. Court of Appeal, First District, Division 2. December 9, 2005.

[36 Cal.Rptr.3d 572]

Joseph Scanlon, Law Offices of Joseph Scanlon, Oakland, for Appellant.

Richard P. Tricker, Thomas J. Kearney, Anderson, McPharlin & Conners, LLP, Los Angeles, for Respondent.

KLINE, P.J.

134 Cal.App.4th 940

In this appeal we must determine whether benefits are due under an insurance policy that provides disability benefits for "accidental bodily injury" where the policyholder, over time, developed carpal tunnel syndrome as a result of her ordinary work activities. The superior court granted summary judgment to the insurance carrier, Pennsylvania Life Insurance Company (Penn Life), holding that appellant Kimberly Gin's disability was not the result of an "accidental bodily injury" and thus not covered under the policy. Gin now appeals from that order, contending that her disability resulted from a series of "micro-traumas," which constituted an "accidental bodily injury" as required by the policy. We conclude that Gin suffered no

134 Cal.App.4th 941

"accidental bodily injury" as that term is defined in the policy and in California law. Accordingly, we affirm the grant of summary judgment to Penn Life.

FACTUAL AND PROCEDURAL BACKGROUND

In 1994, Gin went to work for United Parcel Service (UPS). She worked in UPS's accounting office and described herself as a "COD clerk." Her duties consisted largely of data entry, including inputting billings for UPS and paying out checks. She also occupied another position at UPS in which she entered payroll

36 Cal.Rptr.3d 573

information. Both of these jobs required her to sit in front of a computer, and Gin estimated that she spent 40 hours per week, plus overtime, performing these duties.

On September 13, 1996, Gin applied for a disability insurance policy from Penn Life. Penn Life issued the policy effective that same date. The policy was an "accident benefit policy" and provided that Gin would receive a monthly disability benefit in the event that she became totally disabled within the meaning of the policy.¹

The policy provided that Penn Life "will pay the Monthly Total Disability Benefit shown in the Policy Schedule on Page 3 when: (1) Injury causes Total Disability which starts within 90 days after the date of the accident and continues through the end of the Elimination Period, if any; (2) you . . . are under the Regular and Personal Care of a Physician; and (3) Total Disability starts before your . . . 65th birthday. . . ." The policy defined "Injury" as "accidental bodily injury sustained (1) directly and independently of disease or bodily infirmity, or any other causes; and (2) while this Policy is in force." The terms "Total Disability" and "Totally Disabled" were defined to mean "that you or your Covered Spouse are unable to engage in any employment or occupation for which you or your Covered Spouse, are or become qualified by reason of education, training or experience."

Gin stated that four days after being issued the policy, she began to feel pain in her right side, especially in her shoulder, arm, and neck. According to Gin's deposition testimony, she was working in the UPS accounting office when she began to experience symptoms. She recalled that she was simply typing and that there was no particular traumatic event that occurred before she felt the pain. Gin filled out an "Injury/Illness Report" that same day, and in response to the question, "What object or substance directly injured the

134 Cal.App.4th 942

employee?" she stated, "The repetition of entering data via the keyboard." She later stated that "[t]he trauma associated with my symptoms was typing."

Gin made a claim for disability benefits to Penn Life on October 10, 1996. Penn Life paid policy benefits through March 1999. Penn Life discontinued benefits on or about May 24, 1999, after Gin completed a vocational rehabilitation program she had undergone in connection with a workers compensation claim arising out of the same injury.

Gin sued Penn Life for breach of contract in the Alameda County Superior Court on March 15, 2001. After removal of the action to federal court and a stipulated remand to state court, Gin filed an amended complaint on September 22, 2003. Penn Life later moved for summary judgment on two grounds. First, it contended that Gin had not been "totally disabled" from "any occupation" within the meaning of the policy since March 1999. Second, Penn Life argued that Gin had no right to coverage because her disability was not caused by an "accidental bodily injury" as required by the policy.

In support of its motion for summary judgment, Penn Life submitted portions of the deposition of Dr. Robert Allen, an anesthesiologist and specialist in pain medicine whom Gin had begun to see in December

36 Cal.Rptr.3d 574

2001.² When asked his opinion as to the cause of Gin's "complex regional pain syndrome," Dr. Allen stated: "My opinion is that there is probably some component of a repetitive stress injury picture, although it's somewhat confusing, and no one has an explanation all the time as to what precipitates this neuropathic injury. But given her history of being engaged in repetitive activities, and the onset of symptoms, and clinicians giving her the diagnoses somewhat consistently of repetitive stress injury, that was my initial impression of how she could have developed this."

The superior court heard argument on Penn Life's motion for summary judgment on November 10, 2004. It accepted Penn Life's second argument and found that Gin's disability was not the result of an "accidental bodily injury" as required by the policy. The superior court held that the undisputed evidence showed that the probable cause of Gin's disability was the repetitive motion of entering data on a computer keyboard. The superior court concluded that such an injury could not be considered accidental under the standards established in California case law. It therefore granted summary judgment to Penn Life. Gin then filed a timely appeal.

134 Cal.App.4th 943

DISCUSSION

The question before us is whether Gin's condition falls within the policy's definition of "Injury." The superior court held that it did not because Gin's disability was attributable to a "repetitive stress injury." Citing Williams v. Hartford Accident & Indemnity Co. (1984) 158 Cal.App.3d 229, 204 Cal.Rptr. 453 (Williams) and Alessandro v. Massachusetts Cas. Ins. Co. (1965) 232 Cal.App.2d 203, 42 Cal.Rptr. 630 (Alessandro), the superior court ruled that an "[i]njury resulting from a series of imperceptible events that finally culminate in a single tangible harm is not accidental." We agree with the superior court that under California case law, a disability that is the culmination of repetitive stresses caused by the insured's normal, everyday activities is not the result of an "accidental bodily injury" and therefore does not fall within the coverage of the policy.

A. Standard of Review

In this case, the issue is the scope of the coverage afforded by the policy. As a consequence, the burden was on Gin "to establish that [her] disability occurred as a result of an `accidental bodily injury' within the meaning of that term as used in the policy." (Alessandro, supra, 232 Cal.App.2d at p. 210, 42 Cal.Rptr. 630; accord, Zuckerman v. Underwriters at Lloyd's (1954) 42 Cal.2d 460, 472, 267 P.2d 777 ["The burden of proof was upon the beneficiaries . . . to establish that the death . . . occurred as a result of `bodily injury' within the meaning of that term as defined by the policy"]; Spaid v. Cal-Western States Life Ins. Co. (1982) 130 Cal.App.3d 803, 806-807, 182 Cal.Rptr. 3 [insured required to demonstrate that death "resulted from a cause and in a manner covered by the policy"].)

The interpretation and application of the terms of an insurance policy present questions of law, and in reviewing the superior court's grant of summary judgment, we exercise de novo review over those questions. (County of San...