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Carlson v. Independent of Foresters

United States District Court, D. Arizona

March 13, 2017

Bernadette Carlson, Plaintiff,
v.
The Independent of the Foresters, Defendant.

          ORDER

          Paul G. Rosenblatt United States District Judge.

         Pending before the Court is Defendant's Motion for Summary Judgment (Doc. 30), wherein the defendant seeks summary judgment as to the entirety of the plaintiff's complaint. Having considered the parties' memoranda in light of the admissible evidence of record, the Court finds that there are no genuine issues of material fact regarding the defendant's liability and that it is entitled to entry of judgment in its favor as a matter of law pursuant to Fed.R.Civ.P. 56.[1]

         Background

         This action arises from the decision of defendant The Independent Order of the Foresters (“Foresters”)[2] to deny payment of accidental death benefits to plaintiff Bernadette Carlson, who is the beneficiary under the Accidental Death Term Insurance Certificate (“the Policy”) issued to her mother, Anna Carlson (“the decedent”).[3] The plaintiff's complaint raises claims for Breach of Contract (Count I) and for Bad Faith (Count II).

         Foresters issued the Policy to the decedent with the benefit amount of $300, 000 on December 5, 2012. The Policy states that “Subject to the terms and conditions of the entire contract, [Foresters] will pay the death benefit upon [its] receipt of due proof of the insured's accidental death.” The Policy defines “Accidental death” in relevant part as being “Death that ... is caused, directly and independently from all other causes, by an injury that occurs while this certificate is in effect[.]” The Policy defines “Injury” as “An accidental bodily injury that is the direct result of an accident, independent of an illness, disease, condition or bodily infirmity.” The Policy states that it will not pay the death benefit if the insured's death “results directly or indirectly” from various excluded risks, which include “Disease or infirmity of mind or body” and “Stroke or cerebrovascular accident or event, cardiovascular accident or event, myocardial infraction or heart attack, coronary thrombosis, or aneurysm, even if the proximate or precipitating cause is an injury.” The Policy provides that the law of Arizona governs the rights and obligations under the Policy.

         The decedent died at her home on February 11, 2013, at 5:46 a.m. No autopsy was performed at the request of her family and her body was cremated. Dr. Trinh T. Doan, an internal medicine specialist who was the decedent's treating physician since May 2002, completed the decedent's State of Arizona Certificate of Death on February 12, 2013, and the death certificate was registered with the state on February 26, 2013. In the box on the death certificate that asks for “Immediate Cause of Death, ” Dr. Doan stated “Asphyxiation from Aspiration.” In the boxes on the certificate that asks for what the death was “Due to or as a Consequence of, ” Dr. Doan stated “obstructive sleep apnea” and “coronary artery disease.” Dr. Doan also listed “obesity, diabetes mellitus” on the certificate as “other significant conditions contributing to death but not resulting in the underlying [stated] causes.” In the box on the death certificate that asks “Injury?”, Dr. Doan stated “No” and in the box that asks “Manner of Death, ” she stated “Natural Death.” It is undisputed that the decedent's exact cause of death cannot be established to any reasonable degree of medical probability due to the lack of an autopsy.

         The plaintiff sent Foresters a claim for death benefits dated February 26, 2013. Foresters denied the claim on March 27, 2013; its denial letter stated in relevant part: “According to Ms. Carlson's death certificate, the cause of death is listed as Asphyxiation for [sic] Aspiration and was not deemed an accident; therefore there is no death benefit payable.”

         Discussion

         A. Summary Judgment Standard

         On an issue on which the plaintiff has the burden of proof, Foresters may move for summary judgment by pointing to the absence of facts required to withstand summary judgment. Foresters has met this initial responsibility in part by noting that the decedent's death certificate states that the decedent died a natural death that was not an injury, and that her death was due to or a consequence of coronary artery disease and obstructive sleep apnea.[4] The death certificate is a public record of a vital statistic that is admissible in evidence pursuant to Fed.R.Evid. 803(9) and is self-authenticating pursuant to Fed.R.Evid. 902(1), and it is “prima facie evidence of the facts therein stated” pursuant to A.R.S. § 12-2264.

         Since Foresters has made a properly supported summary judgment motion, the plaintiff must set forth specific facts showing that there is a genuine issue for trial in order to survive the motion, i.e. that there are genuine factual issues that properly can be resolved only by a trier of fact at trial because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The production by the plaintiff of a scintilla of evidence, or evidence that is merely colorable or not significantly probative, is not sufficient to present a genuine issue as to a material fact. Id., at 249-50, 252. In making the decision as to whether the plaintiff has met this standard, the Court may neither make credibility determinations nor weigh the evidence, and it must believe the admissible evidence of the plaintiff and must draw all justifiable inferences from that evidence in her favor. Id., at 255. The Court must also be guided by the substantive evidentiary standards that apply to the case in determining whether a factual dispute requires submission to the trier of fact, id., which means that the Court “can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir.2002).

         B. Breach of Contract

         1. Coverage Under the Policy

         In Count I of her Complaint, the plaintiff alleges that Foresters breached its insurance contract with the decedent by refusing to pay the plaintiff's claim for the accidental death benefits due under the Policy. Foresters argues in part that it is entitled to summary judgment on the breach of contract claim because the plaintiff has not met her burden of proving that the decedent died from an “accidental death” within the meaning of the Policy.

         Under the governing Arizona law, the plaintiff “has the burden of proving that death resulted from accidental rather than natural causes, within the coverage of and defined by the clauses of the insurance policies.” Valley National Bank of Ariz. v. J.C. Penney Ins. Co., 628 P.2d 991, 993 (Ariz.App.1981); accord, Young v. Pacific Mutual Life Ins. Co. of Calif., 9 P.2d 191, 192 (Ariz.1932) (“[A] plaintiff suing to recover on an accident policy ... must first establish [by a preponderance of the evidence] the fact of death or injury by accident or accidental means, and that until he does so no case is made out.”)

         In arguing that a reasonable trier of fact could conclude there was coverage under the Policy for the decedent's death, the plaintiff contends that the decedent directly died from an accidental asphyxiation from aspiration that was independent of any excluded illness or disease. In so arguing, the plaintiff relies exclusively on the deposition testimony of Dr. Doan, who testified as a treating physician and not as an expert witness.[5] Dr. Doan testified in relevant part that the “most likely cause” of the decedent's death was asphyxiation from aspiration (Doan depo., at 62), that it was “probable” that the decedent accidently died from asphyxiation from aspiration (id. at 19), that it was “probable” that she died as a result of swallowing some materials and that stopped her breathing (id., at 14), and that asphyxiation from aspiration is not a disease, illness, or a medical condition. (Id., at 41).[6]

         While the Court agrees with the plaintiff that she need not establish conclusively in her favor that asphyxiation from aspiration was the exact cause of the decedent's death in order to defeat summary judgment, she cannot meet her burden of presenting affirmative evidence sufficient to allow the trier of fact to return a verdict her favor by relying on conjecture and speculation. British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978). Having reviewed the admissible evidence of record and the reasonable inferences from that evidence in the plaintiff's favor, the Court concludes the plaintiff has failed to submit the actual quantum and quality of proof necessary to create a triable issue of fact as to whether the decedent's death met the Policy's definition of an accidental death. This is so because it is clear from Dr. Doan's testimony that she has no personal knowledge concerning the circumstances of the decedent's death, and that her statements relied on by the plaintiff regarding cause of death are based on improper hearsay and conjecture, which Foresters has objected to. Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1091 (9th Cir.1990) (“Like affidavits, deposition testimony that is not based on personal knowledge and is hearsay is inadmissible and cannot raise a genuine issue of material fact sufficient to withstand summary judgment.”); accord, Jacobsen v. Filler, 790 F.2d 1362, 1367 (9th Cir.1986) (“Finally, Jacobsen's deposition testimony about what he read in a newspaper article (not introduced into evidence) and what his attorneys told him is not based on personal knowledge and is inadmissible hearsay. Therefore it fails to raise a genuine issue sufficient to withstand summary judgment.”)

         There is no dispute that Dr. Doan, prior to completing the death certificate, never examined the decedent's body (id., at 20) and did not talk to any of the emergency medical personnel or police officers who were called to the decedent's residence as a result of her death. (Id., at 20-21). While Dr. Doan generally testified that she based her decision regarding the decedent's death in part on her knowledge of the decedent's past medical records (id., at 22), it cannot be disputed from the record before the Court that the determinative basis for Dr. Doan's decision to list asphyxiation from aspiration as the probable cause of death came solely from information given to her by the decedent's family, specifically from the information that the decedent's sister, Lori Bowyer, told her, which information was given to Ms. Bowyer by the plaintiff, the decedent's daughter. (Id., at 16, 21, 33, 43, 50-51).[7] There is no testimonial or documentary evidence of record from the decedent's daughter or the decedent's sister, or from the paramedics, or from any other source with any personal knowledge about the circumstances of the decedent's death. Dr. Doan's belief that it is probable that an accidental asphyxiation from aspiration was the cause of death appears to be improperly based on speculation and double hearsay. As such, it is insufficient to create a triable issue of material fact regarding the breach of contract claim.

         2. Reasonable Expectation of Coverage

         The plaintiff, citing to Gordinier v. Aetna Casualty and Surety Co., 742 P.2d 277 (Ariz.1987), also argues that summary judgment is not proper because a reasonable trier of fact could find that the decedent had a reasonable expectation of coverage. In Gordinier, the Arizona Supreme Court noted that Arizona courts will not enforce even unambiguous boilerplate terms in standardized insurance contracts in a limited variety of situations, the third stated example of which is “[w]here some activity which can be reasonably attributed to the insurer would create an objective impression of coverage in the mind of a reasonable insured.” Id., at 283-84. The plaintiff asserts that Foresters' Required Outline of Coverage (“the Outline”) provided to the decedent would create an objective impression of coverage in the mind of a reasonable insured under Gordinier's third exception. Foresters argues that the Outline cannot be considered and must be stricken because it was not timely disclosed by the plaintiff and it lacks foundation.

         The Court concludes that it need not reach the issue of the Outline's admissibility because the plaintiff's cursory argument, to the extent that the Court understands it, is substantively meritless even if the Outline is considered. While the Court agrees with the plaintiff's contention that a reasonable insured's expectation would be that the Policy would cover what is stated in the Outline, the plaintiff makes no cogent argument as to how the Outline differs from the Policy in relevant material terms so as to create some reasonable expectation of coverage not found in the Policy. The plaintiff does state in her responsive memorandum and in her statement of facts that the Outline does not define “injury, ” but the Outline clearly does so in its first paragraph, and the Outline's definition of “injury” and its definition of “accidental death” are identical to those definitions set forth in the Policy.[8] There is simply no triable issue of material fact concerning whether the Outline created some objectively reasonable expectation of coverage for the decedent's death outside of the provisions of the Policy.

         C. Bad Faith

         In Count II of her Complaint, the plaintiff alleges that Foresters breached its implied duty of good faith and fair dealing by failing to compensate her as required by the Policy without a reasonable basis for doing so, and by failing to perform an adequate evaluation to determine whether its denial of her insurance claim was supported by a reasonable basis. The plaintiff further seeks punitive damages for ...


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