Hammer v. Lumberman's Mut. Cas. Co.

• Decision Date: 17 April 1990
• Docket Number: No. 13780,13780
• Citation: 214 Conn. 573,573 A.2d 699
• Parties: Seymour HAMMER v. LUMBERMAN'S MUTUAL CASUALTY COMPANY.
• Court: Connecticut Supreme Court

Page 699

573 A.2d 699

214 Conn. 573

Seymour HAMMER v. LUMBERMAN'S MUTUAL CASUALTY COMPANY.

No. 13780.

Supreme Court of Connecticut.

Argued Jan. 2, 1990.

Decided April 17, 1990.

Wesley W. Horton, with whom were Jeffrey A. Hoberman and Louis W. Flynn, Jr., Hartford, for appellant (plaintiff).

Barbara B. Sacks, Hartford, for appellee (defendant).

Before ARTHUR H. HEALEY, SHEA, CALLAHAN, COVELLO and HENNESSY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff, Seymour Hammer, brought an action against the defendant, Lumberman's Mutual Casualty Company, for its alleged failure to continue to provide lifetime disability payments in accordance with the terms of the group disability insurance policy issued to the plaintiff by the defendant. The defendant moved for summary judgment on the basis of an exclusion in the policy that limits benefits to two years if the total disability was caused by or resulted from "medical or surgical treatment." In granting the defendant's motion for summary judgment, the trial court held, inter alia, that the plaintiff's disability resulted from medical or surgical treatment; thus, it denied the plaintiff lifetime disability benefits under the policy. From this judgment, the plaintiff appealed to the Appellate Court, and, pursuant to Practice Book § 4023, we transferred the case to this court.

The pleadings, affidavit and other documentary information presented to the trial court on the motion for summary judgment reveal the following undisputed facts. On August 18, 1981, the plaintiff entered Mount Sinai Hospital for treatment of a stomach ulcer condition. As part of his treatment, the plaintiff's physician ordered a total parenteral nutrition (TPN) line to be installed. On August 28, 1981, the plaintiff was found in the bathroom area of his hospital room in a semiconscious state with his TPN line disconnected. As a result of this incident, complications arose that led ultimately to the plaintiff's total disability. The plaintiff brought suit against Mount Sinai Hospital and several physicians alleging, inter alia, that their negligence and carelessness in the course of treating the plaintiff for his ulcer condition caused his injuries and disability. ¹

At the time of the plaintiff's total disability, the plaintiff was insured by a group disability insurance policy issued to him by the defendant on July 1, 1980. Shortly after August 28, 1981, the date the plaintiff was found in a semiconscious condition, the defendant commenced paying monthly disability benefits in accordance with this policy in the amount of $1500 per month and continued to pay disability benefits until October 4, 1983. In his amended complaint, the plaintiff alleged that the defendant had failed to continue to pay monthly disability payments in accordance with the terms of the insurance policy. Specifically, the plaintiff claimed that the defendant had an obligation under the policy to continue to make disability payments so long as the plaintiff remained disabled.

On December 30, 1988, the defendant moved for summary judgment. In its motion, the defendant claimed that the plaintiff's total disability was caused by or resulted from "medical or surgical treatment," and therefore his benefits, under the terms of the policy, are limited to those provided for under the "sickness" provision. ² In support of its motion, the defendant attached a copy of the insurance policy, the plaintiff's responses to the defendant's requests to admit, a copy of the plaintiff's complaint filed in Hammer v. Mount Sinai Hospital, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 830286323 S (August 23, 1989), and a memorandum of law. In opposition to the defendant's motion, the plaintiff filed an affidavit from David Bronster, a physician, and a memorandum of law.

On June 8, 1989, the trial court granted the defendant's motion. In granting the motion, the court rejected the plaintiff's claim that, based on the affidavit of Bronster, the event that occurred on August 28, 1981, "was of a complicated nature and was a highly unusual and unforeseen result of the installation of the [TPN line] and that such result must therefore be termed 'accidental' giving rise to an issue of material fact which can only be resolved at the time of trial." The court stated that "[t]he plaintiff ha[d] not produced any documents to contest the defendant's contention that the plaintiff's disability result[ed] from the installation of the TPN line which in turn was part of his treatment for his ulcer condition."

The court further stated that the language in the insurance policy, "medical or surgical treatment," was unambiguous. In so doing, it cited J. Appleman, Insurance Law and Practice § 415, which provides: " 'The expression "medical and surgical treatment" when used in the contract, includes all acts done by a physician in the preliminary care, general treatment or later care in order to effect a cure....' " Moreover, the court, in recognizing that our courts had not had occasion to pass upon this question, noted that other jurisdictions had applied similar exclusionary provisions to various mishaps which had occurred during the course of medical treatment, citing Whetsell v. Mutual Life Ins. Co. of New York, 669 F.2d 955 (4th Cir.1982), and cases cited therein.

In conclusion, the court held that the "alleged negligent installation of the TPN line in connection with the plaintiff's treatment for a stomach ulcer constituted 'medical or surgical treatment' and thus the disability resulting therefrom is covered by the 'sickness' provisions of the policy." In addition, the court stated that "[s]ince the defendant has paid the plaintiff for that period called for by such provision of the policy, i.e., two years, it has satisfied its obligation to him."

On appeal, the plaintiff contends that the trial court erred in (1) granting the defendant's motion for summary judgment because there existed a genuine issue of fact, and (2) concluding that the exclusionary provision, medical or surgical treatment, applies to improper medical treatment.

I

The plaintiff first contends that the trial court erred in granting summary judgment because there existed a genuine issue of fact, i.e., whether the plaintiff's total disability was caused by or resulted from "medical or surgical treatment." He maintains that Bronster's affidavit, filed by him in opposition to the defendant's motion for summary judgment, presented evidence that his injury was "accidental in nature." He asserts that it was a material question of fact whether his injury was the result of medical or surgical treatment or was the unforeseen result of his reaction to the insertion of the TPN line. The defendant contends, however, that the court properly granted its motion for summary judgment for two reasons: (1) the plaintiff failed to present any evidence to the trial court to contest the defendant's claim that the plaintiff's disability resulted from the installation of the TPN line which in turn was part of his treatment for his ulcer condition; and (2) the plaintiff is estopped from relitigating the cause of his disability because he is bound by the favorable judgment he received in the medical malpractice suit filed against Mount Sinai Hospital, which, we note, is presently on appeal. We conclude that the trial court did not err in granting the defendant's motion because the plaintiff failed to present evidence in opposition to the defendant's contention that the plaintiff's disability was caused by medical or surgical treatment. Because we agree with the defendant's first claim, we do not address the defendant's second claim.

"Our standard of review of a trial court's decision to grant a motion for summary judgment is well established." Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § 384 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted 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." See also Zichichi v. Middlesex Memorial Hospital, supra; Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986); Daily v. New Britain Machine Co., 200 Conn. 562, 568, 512 A.2d 893 (1986). " 'A "material" fact has been defined adequately and simply as a fact which will make a difference in the result of the case.' United Oil Co. v. Urban Redevelopment Commission, [158 Conn. 364, 379, 260 A.2d 596 (1969) ]." Catz v. Rubenstein, supra. "The test is whether a party would be entitled to a directed verdict on the same facts." State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988).

"Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. 'Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380.' Bartha v. Waterbury House Wrecking Co., [190 Conn. 8, 12, 459 A.2d 115 (1983) ]. 'The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.' Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967), quoting Boyce v. Merchants Fire Ins. Co., 204 F.Supp. 311, 314 (D.Conn.1962)...." Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984); Daily v. New Britain Machine Co., supra, 200 Conn. at 568-69, 512 A.2d 893. "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict...