Pirkheim v. First Unum Life Ins. Co.

• Decision Date: 28 May 1999
• Docket Number: No. Civ.A. 97-B-2528.,Civ.A. 97-B-2528.
• Parties: Frank PIRKHEIM and Roxanne Pirkheim, as parents of Logan Pirkheim, deceased, Plaintiffs, v. FIRST UNUM LIFE INSURANCE COMPANY, a foreign corporation, Defendant.
• Court: U.S. District Court — District of Colorado

50 F.Supp.2d 1018

Frank PIRKHEIM and Roxanne Pirkheim, as parents of Logan Pirkheim, deceased, Plaintiffs, v. FIRST UNUM LIFE INSURANCE COMPANY, a foreign corporation, Defendant.

No. Civ.A. 97-B-2528.

United States District Court, D. Colorado.

May 28, 1999.

COPYRIGHT MATERIAL OMITTED

Scott J. Eldredge, H. Michael Steinberg, Hersh & Houliston, P.C., Englewood, CO, for plaintiff.

Sandra L. Spencer, White and Steele, P.C., Denver, CO, for defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Defendant, First UNUM Life Insurance Company ("First UNUM"), moves for summary judgment pursuant to Rule 56. Plaintiffs, Frank Pirkheim and Roxanne Pirkheim, also move for summary judgment pursuant to Rule 56. The cross-motions, which require construction of an insurance policy, are adequately briefed and oral argument will not materially aid their resolution. For the reasons set forth below, I grant First UNUM's motion and deny Mr. and Mrs. Pirkheim's motion. Subject-matter jurisdiction exists under 28 U.S.C. § 1331.

I. FACTS

The following material facts are undisputed unless otherwise noted. Mr. and Mrs. Pirkheim are the natural parents of Logan Pirkheim, who was born on May 31, 1990 with Downs Syndrome and congenital heart disease. On January 29, 1991, Logan underwent surgery in Albany, New York. Surgeons repaired the atrial and ventricular septal defects of his heart. Although the surgery was successful, some of the nerves regulating Logan's heartbeat were damaged, causing him to suffer from an abnormal heart beat, also known as arrhythmia. To mask the abnormality and properly regulate Logan's heart beat, doctors implanted a pacemaker on February 5, 1991. The pacemaker functioned properly after its implantation.

On October 8, 1995, Roxanne Pirkheim discovered Logan in distress and suffering from arrhythmic seizures. He was rushed to the hospital, but died later that day after doctors attempted to save his life.

The original Certificate of Death, prepared by Michael Schaffer, M.D., does not identify any cause of death and indicates that an autopsy is "pending." (10/8/95 Cert. of Death, Ex. A of Def.'s Brf. at 47.) Sherrie Caldwell, M.D., a pathologist, conducted an autopsy and concluded as follows:

Logan was a 5-year-old boy with Down syndrome and congenital heart disease. His atrial and ventricular septal defects were repaired at 8 months of age. Post operatively he had a complete heart block requiring a permanent pacemaker. He did well following his initial surgery.

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At autopsy, the previous cardiac repair was found to be intact. Microscopically, there were scattered remote microscopic infarcts, and a few mineralized subendocardial myocytes were noted. The only other findings of significance were related to terminal hypoxia/ischemia. These included cerebral congestion and edema, pulmonary congestion and edema, and a peritoneal effusion. The pacemaker was removed for further investigation.

In summary, the cause of death was apparent pacemaker failure in this 5-year-old boy who was pacemaker dependent following repair of his congenital heart disease.

(Comment of Dr. Caldwell, Ex. A of Def.'s Brf. at 42.) The pacemaker was subsequently examined by Intermedics Inc.'s Reliability Analysis Laboratory, compelling it to conclude:

The tests show that the pacemaker was performing within all mechanical and electrical specifications for a unit at this stage. The battery depletion analysis showed that the battery was depleted. The tests show that the "Elective Replacement Indicator" as well as the "Intensified Follow-up Indicator" were triggered prior to the device going to "no-output."

(Ltr. from Devine to Mr. and Mrs. Pirkheim of 11/9/95, Ex. A of Def.'s Brf. at 62.) Dr. Schaffer then prepared an Amended Certificate of Death that attributes Logan Pirkheim's death to "Cardiac Arrhythmia," "Pacemaker Malfunction," and "Congenital Heart Disease." (12/8/95 Amended Cert. of Death, Ex. A of Def.'s Brf. at 70.) On a date not disclosed by the record, Mr. and Mrs. Pirkheim commenced a civil action against Dr. Schaffer in the District Court for the City and County of Denver, alleging, inter alia, that he failed to properly diagnose and care for Logan Pirkheim. On a date not disclosed by the record, Mr. and Mrs. Pirkheim settled their claims against Dr. Schaffer.

At the time of his death, Logan was an "Insured" under an accident insurance policy purchased by Mr. Pirkheim. The policy states, in relevant part:

INSURING CLAUSE

We agree with the Policyholder to cover each Insured for any loss described in Part I in return for the payment of premiums and subject to the provisions which follow. The loss must result directly and independently of all other causes from accidental bodily injury which occurs while this policy is in force as to the Insured, herein called "injury."

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Part I — DESCRIPTION OF COVERAGE

If an Insured suffers any one of the losses shown below as a result of "injury", We will pay the sum shown for the loss.

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For Loss of Life ........... The Principal Sum

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Part II — EXCLUSIONS

We will not pay if the loss is caused by ... illness, disease, bodily infirmity, or any bacterial infection....

(First UNUM Life Insurance Company Accident Insurance Policy ("the policy"), Ex. B of Def.'s Brf. at 1, 4 (emphasis in original).) The parties agree that the "Principal Sum" at issue is $100,000.

On December 13, 1995, Mr. Pirkheim filed a claim for accidental death benefits pursuant to the policy. On January 4, First UNUM issued a letter denying his claim for benefits. That letter states, in relevant part:

Since it appears that death was not an accidental bodily injury direct and independent of all other causes, and there was the underlying bodily infirmity necessitating the use of the pacemaker, we have no alternative but to disallow this claim....

(Ltr. from Tetto to Mr. Pirkheim of 1/4/96, Ex. A of Def.'s Brf. at 53-54.) Mr. Pirkheim then appealed the denial to the First UNUM Appeal Committee, which affirmed the denial for the reasons stated in the initial denial letter. (Ltr. from Tetto to Lindberg of 2/14/97, Ex. A of Def.'s Brf. at 32.) The First UNUM Appeal Committee then reaffirmed the denial on May 16, 1997. (Ltr. from Tetto to Eldredge of 5/16/97, Ex. A of Def.'s Brf. at 26.)

II. PROCEDURAL HISTORY

On October 7, 1997, Mr. and Mrs. Pirkheim commenced this civil action against First UNUM in District Court for the City and County of Denver, Colorado, alleging two claims: breach of contract and bad faith breach of insurance contract. First UNUM removed the action to this court on December 2, 1997, averring subject-matter jurisdiction exists under 28 U.S.C. § 1331 because, as a matter of law, Mr. and Mrs. Pirkheim's claims are preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. §§ 1001-1461 (1994 & Supp. 1997). Contemporaneously with the filing of its notice of removal, First UNUM moved to dismiss Mr. and Mrs. Pirkheim's complaint pursuant to Rule 12(b)(6), again arguing that Mr. and Mrs. Pirkheim's claims are preempted by ERISA. By written order entered February 19, 1998, I denied First UNUM's motion to dismiss. First UNUM filed its answer on March 2, 1998. Mr. and Mrs. Pirkheim did not move to remand the action to state court. A pretrial order entered December 7, 1998.

III. SUMMARY JUDGMENT STANDARDS

Rule 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that issues of undetermined material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, that it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980); Fed.R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Where, as here, the parties file cross-motions for summary judgment, I assume that no evidence need be considered other than that filed by the parties. Nevertheless, summary judgment is inappropriate if genuine issues of material fact exist. James Barlow Family Ltd. Partnership v. David M. Munson, Inc., 124 F.3d 1321, 1323 (10th Cir.1997).

Summary judgment is also appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence present in the motion and response. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment should not enter if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party. Liberty Lobby, 477 U.S. at 252, ...