Rich v. Principal Life Insurance Company ( 2007 )

Docket No. 103754.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
DAVID RICH, Appellant, v. PRINCIPAL LIFE INSURANCE
COMPANY, Appellee.
Opinion filed September 20, 2007.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Plaintiff, David Rich, brought an action in the circuit court of
Winnebago County against defendant, Principal Life Insurance
Company, for breach of an insurance contract. Defendant filed a
counterclaim against plaintiff seeking a declaratory judgment. Plaintiff
and defendant filed cross-motions for summary judgment in the
declaratory judgment action. The circuit court entered summary
judgment in favor of plaintiff. The appellate court reversed and
entered summary judgment in favor of defendant. No. 2–05–1197
(unpublished order under Supreme Court Rule 23). We allowed
plaintiff’s petition for leave to appeal (210 Ill. 2d R. 315(a)), and now
affirm the judgment of the appellate court.
I. BACKGROUND
The pertinent and undisputed facts are as follows. On March 20,
1980, Bankers Life Company, now known as defendant, Principal Life
Insurance Company, issued a disability insurance policy to plaintiff.
The policy provides that defendant will pay monthly benefits “if Total
Disability (as that term is defined in this policy) of the Insured
commences while the Policy is in force.” The policy defines “total
disability” as “the complete inability of the Insured due to Injury or
Sickness to perform any and every duty pertaining to an occupation
(as defined herein) for remuneration or profit.” The policy defines the
terms “Sickness” and “Injury” as follows:
“INJURY means accidental bodily injury sustained by the
Insured while this Policy is in force. Injury which is a direct or
indirect result of physical or mental infirmity, illness or disease
of any kind, or medical or surgical treatment therefor or Injury
which results in Total Disability which commences more than
90 days after the date the Injury is sustained will be deemed to
be Sickness.”1
In the benefit and premium schedule, the policy prescribes lifetime
benefits if the disability resulted from an “injury,” but limits the benefit
period to five years if the disability resulted from a “sickness.”
On January 19, 1999, plaintiff was loading 50-pound tires onto a
truck at work. A tire bounced back and struck his right wrist. Plaintiff
continued working despite pain and swelling in the wrist. The next
day, a medical examination with X-rays revealed only a contusion and
strain. However, plaintiff continued to experience pain and swelling
in his right wrist. On March 3, 1999, plaintiff received an MRI. On
March 3 and 18, based on the MRI, various physicians diagnosed
plaintiff as having a tear of the right scapholunate ligament with
segmental instability. Dr. Robert Schenck confirmed this diagnosis and
recommended surgery. Plaintiff was fully employed from January 19,
1999, through May 17, 1999.
On May 18, 1999, Dr. Schenck performed surgery on plaintiff’s
right wrist. Exploration of the wrist revealed a complete, irreparable
1
Further, according to the policy: “SICKNESS means sickness or disease
of the Insured first manifested while this policy is in force.”
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rupture of the scapholunate ligament. Consequently, Dr. Schenck
performed a scapholunate fusion, inserting pins to attach a bone graft
from the distal radius. On August 23, 1999, Dr. Schenck removed the
cast from plaintiff’s right hand and wrist. Dr. Schenck observed
swelling on the dorsal aspect of plaintiff’s hand and drainage at the
fusion site. Dr. Schenck removed the pins and prescribed oral
antibiotics to prevent infection from spreading to the bone. On August
25, 1999, plaintiff returned to Dr. Schenk with complaints of
abnormal redness and swelling near the site where the pins had been
removed. Cultures from the pin-removal site revealed a “rare growth
of staphylococcus species.” As a result, Dr. Schenck directed plaintiff
to continue taking his antibiotics.
On August 25, 1999, plaintiff applied for benefits under his
disability insurance policy by submitting to defendant a verified
disability claim notice. Plaintiff identified his injury as the torn
ligament in his right wrist, which he incurred while loading tires at
work on January 19, 1999. Plaintiff stated that his total disability
commenced on May 18, 1999, the date of his wrist surgery. Plaintiff
explained: “I was put on disability because of an infection in my wrist
that was operated on.”
In a letter dated September 8, 1999, defendant acknowledged
receipt of plaintiff’s disability claim notice. Defendant advised plaintiff:
“The Maximum Benefit Period is five years. For disabilities as a direct
result within 90 days of an accident/injury, your benefit is extended to
your lifetime.” Also, defendant requested an attending physician’s
statement to further process plaintiff’s claim. Plaintiff thereafter
submitted the statement, prepared by Dr. Schenck, who verified that
he “told the patient [plaintiff] to restrict employment activities,” and
that the restrictions began on May 18, 1999. In a letter dated October
1, 1999, relying on the verified information that plaintiff provided,
defendant determined that plaintiff was totally disabled as of May 18,
1999, and awarded him benefits under the policy beginning on June
17, 1999, after the policy’s 30-day elimination period.
Dr. Schenck continued to treat plaintiff on a monthly basis for
hand and wrist pain. On January 31, 2000, plaintiff complained again
of swelling and redness. X-rays revealed that plaintiff suffered from
osteomyelitis in the proximal scaphoid and adjacent lunate bones. A
biopsy of plaintiff’s wrist revealed a rare growth of staphylococcus
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species and mold. As a result, Dr. Schenck referred plaintiff to Dr.
David Simon, an infectious disease specialist, who ordered a six-week
course of intravenous antibiotics. On March 30, 2000, Dr. Schenck
operated a second time on plaintiff’s right wrist and discovered that
the lunate and adjacent portions of his scaphoid bones were necrotic.
Dr. Schenck excised most of the necrotic bone and advised plaintiff
that if the scaphoid failed to fuse, he would eventually need a total
wrist fusion. On October 22, 2001, plaintiff underwent wrist fusion
surgery and an ulnar head replacement on his right wrist.
The record shows that defendant administered plaintiff’s claim as
having a five-year benefit period. In a July 12, 2001, letter to plaintiff,
in which defendant approved plaintiff’s continued benefits, defendant
noted: “Benefits will continue until June 16, 2004, which is when your
benefits will exhaust, as long as you continue to be Disabled per the
provisions of your policy and provide Proof of Loss that you are
satisfying this policy requirement.”
On August 28, 2002, plaintiff requested that defendant reconsider
its determination that he was ineligible for lifetime benefits. Defendant
responded in a letter dated August 30, 2002. Defendant explained that
it was correctly administering plaintiff’s claim as a “sickness” under
the policy, based on the verified facts that plaintiff gave in his claim
forms. Citing the policy provision defining “sickness,” defendant noted
the policy’s 90-day injury limitation. Defendant informed plaintiff that,
according to the information in his claim file, plaintiff did not become
disabled from the January 19, 1999, injury until May 18, 1999, or 120
days after he sustained the injury. Defendant further explained that
because plaintiff’s total disability began more than 90 days after the
date the injury was sustained, the claim was administered as a sickness
and that plaintiff was not eligible for lifetime benefits. Defendant
advised plaintiff that if he wished to be further considered for lifetime
benefits under the policy, he would need to provide defendant with
medical and employment documentation that would support that he
became totally disabled within the 90 days that followed the January
19, 1999, work-related injury.
In a letter dated January 24, 2003, plaintiff, through counsel,
disagreed with defendant’s position, contending: “The injury for which
[plaintiff] is disabled occurred on May 18, 1999, the date that he was
exposed to a contaminated operation field. This field caused him to
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suffer a severe staph infection which resulted in substantial
deterioration of his bones. It is for this reason that he is disabled.”
Therefore, according to plaintiff, “his disability occurred as the direct
result of his injury within 90 days of his onset of disability. Therefore,
he should be entitled to the benefit extended into his lifetime.”
Defendant advised plaintiff’s counsel that it would again review its
administration of plaintiff’s claim. In a letter dated April 1, 2003,
defendant denied plaintiff’s second request for lifetime benefits.
Defendant again cited the policy’s definition of “injury” and explained
that, because the verified information that plaintiff submitted with his
claim showed that plaintiff’s disability began on May 18, 1999, more
than 90 days after his January 1999 accident, plaintiff’s injury was
properly deemed a “sickness” under the policy. Defendant also
advised plaintiff’s counsel that if plaintiff had additional information
to support his request for lifetime benefits, he should forward the
information to defendant for consideration.
At plaintiff’s request, Dr. Jeffrey Coe examined plaintiff and
reviewed plaintiff’s medical records. In a detailed explanation of
plaintiff’s medical history and his own findings on examination, Dr.
Coe reported as follows. On January 19, 1999, plaintiff suffered a
contusion and strain to his right wrist in an accident at work, which
caused an internal derangement with scapholunate dissociation. Initial
treatment for the January 1999 injury led to only limited improvement,
and plaintiff’s physicians eventually recommended surgery. Plaintiff
underwent surgery on May 18, 1999, and appeared to be recovering
through late July 1999. However, recovery became complicated by the
development of an internal infection. Based on his findings, Dr. Coe
opined that: (1) there was a causal relationship between the injury
suffered by plaintiff at work on January 19, 1999, and his current
symptoms and state of impairment; and (2) plaintiff’s injury has caused
permanent partial disability to his right arm.
Plaintiff submitted Dr. Coe’s report to defendant in support of his
third request for lifetime benefits. In a November 21, 2003, letter,
defendant confirmed its denial, explaining that Dr. Coe did not
provide any new or different information that would change its
position. According to defendant’s records, plaintiff’s injury occurred
on January 19, 1999, but his disability did not begin until May 18,
1999, and, under the terms of the policy, plaintiff’s claim could not be
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considered an “injury,” but rather was deemed a “sickness,” for which
he has received the appropriate benefits.
On January 7, 2004, plaintiff’s counsel requested defendant for the
fourth time to review its denial of lifetime benefits to plaintiff. In the
letter, counsel contended that plaintiff was injured on May 18, 1999,
when he sustained the staph infection. Defendant responded in a
January 16, 2004, letter, explaining that it did not dispute that
plaintiff’s disability began on May 18, 1999. Accordingly, plaintiff’s
May 18, 1999, disability did not qualify for lifetime benefits because:
(1) plaintiff’s January 19, 1999, injury, which resulted in his surgery,
and the date of his disability, May 18, 1999, occurred more than 90
days apart; and (2) plaintiff’s May 18, 1999, disability was the direct
or indirect result of surgical treatment and, therefore, the disability
was deemed to be a “sickness.”
On April 12, 2004, defendant’s assistant director of claims spoke
with plaintiff’s counsel by telephone regarding plaintiff’s claim for
lifetime benefits. She explained that plaintiff’s condition was a direct
or indirect result of an illness or disease, i.e., the staph infection, or
surgical treatment in the form of the May 18, 1999, wrist surgery.
Therefore, plaintiff’s claim was considered a sickness under the policy.
On June 16, 2004, defendant sent a letter to plaintiff advising him that
he had exhausted his five-year period of disability benefits as of June
16, 2004, and that no further benefits were payable for his claim under
the terms of the policy.
Thereafter, on October 21, 2004, plaintiff filed a one-count
complaint against defendant for breach of contract, seeking lifetime
benefits under the policy. Defendant answered and counterclaimed for
a declaratory judgment that defendant had no further obligations
under the policy. Plaintiff answered defendant’s counterclaim by
admitting all statements of fact and denying only the appropriateness
of defendant’s determination of disability benefits under the policy.
Plaintiff and defendant filed cross-motions for summary judgment
in defendant’s declaratory judgment action. In its motion for summary
judgment and in its response to plaintiff’s motion, defendant
contended that it had properly administered plaintiff’s disability claim
as a “sickness.” Defendant argued that plaintiff’s total disability began
on May 18, 1999, more than 90 days after his January 1999 injury.
Defendant argued alternatively that, even if plaintiff’s staph infection
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constitutes a “new and independent” injury, which he sustained on
May 18, 1999, that injury arose as a result of wrist surgery.
Consequently, in the language of the policy, plaintiff’s injury was a
sickness because it was the result of “physical or mental infirmity,
illness or disease of any kind, or medical or surgical treatment
therefor.”
In his motion for summary judgment and in his response to
defendant’s motion, plaintiff contended that he was entitled to lifetime
disability benefits pursuant to the policy. Plaintiff argued as follows.
The language of the policy was ambiguous and, therefore, must be
construed in his favor and against defendant. The policy language was
against public policy and contrary to the expectations of a reasonable,
ordinary person making a contract. Also, plaintiff’s staphylococcal
infection was a new and separate injury, which was the direct result of
the May 18, 1999, wrist surgery. Consequently, plaintiff’s disability
began not only within 90 days of, but on the same day as, the injury.
In a memorandum decision, the circuit court found that plaintiff
was entitled to lifetime disability benefits pursuant to the policy. 2 In its
final judgment order, the circuit court granted plaintiff’s motion for
summary judgment and denied that of defendant.
Defendant appealed from the circuit court’s final judgment order.
The appellate court found that the pertinent policy language was clear
and unambiguous. Further, the appellate court found that it was not
unusual, unreasonable, or against public policy for a disability
insurance policy to limit benefits by prescribing the conditions that
constitute an “injury” or a “sickness.”
Applying the policy provision to the undisputed facts, the appellate
court found as follows. Plaintiff became disabled more than 90 days
after his work-related injury. In light of the stipulated verified facts in
plaintiff’s own claim submissions, plaintiff could not avoid the 90-day
limitation by claiming that the May 18, 1999, staph infection
2
Prior to the entry of judgment, the circuit court granted plaintiff leave to
file an amended complaint, in which plaintiff added a claim against defendant
alleging bad faith pursuant to section 155 of the Illinois Insurance Code (215
ILCS 5/155 (West 2004)). The circuit court granted defendant’s motion to
dismiss this claim.
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constituted a “new” injury. Further, even if plaintiff’s disability arose
within 90 days of a new injury, i.e., the infection, plaintiff was still not
entitled to lifetime disability benefits because this “new injury” was not
an “accidental” injury that fell under the policy’s general grant of
coverage. Because the new injury was not “accidental” and cognizable
under the policy’s general grant of coverage in the first instance, the
appellate court did not consider whether plaintiff’s injury was “a direct
or indirect result of physical or mental infirmity, illness or disease of
any kind, or medical or surgical treatment therefor.” The appellate
court reversed the circuit court’s entry of summary judgment in favor
of plaintiff and entered summary judgment in favor of defendant.
Plaintiff appeals to this court.3
II. ANALYSIS
This matter is before us on the grant of summary judgment in
favor of defendant. Summary judgment is appropriate only where “the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law.” 735 ILCS 5/2–1005(c) (West 2004). The circuit court’s entry
of summary judgment is subject to de novo review. Outboard Marine
Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
Specifically, the construction of an insurance policy is a question of
law, which is reviewed de novo. Central Illinois Light Co. v. Home
Insurance Co., 213 Ill. 2d 141, 153 (2004); Travelers Insurance Co.
v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001).
When construing the language of an insurance policy, a court’s
primary objective is to ascertain and give effect to the intentions of the
parties as expressed by the words of the policy. Hobbs v. Hartford
Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005); Central
Illinois Light, 213 Ill. 2d at 153; American States Insurance Co. v.
Koloms, 177 Ill. 2d 473, 479 (1997). Because the court must assume
3
Before the appellate court, plaintiff cross-appealed from the circuit
court’s dismissal of his claim brought pursuant to section 155 of the
Insurance Code. The appellate court affirmed the dismissal, from which
plaintiff does not appeal.
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that every provision was intended to serve a purpose, an insurance
policy is to be construed as a whole, giving effect to every provision
(Central Illinois Light, 213 Ill. 2d at 153), and taking into account the
type of insurance provided, the nature of the risks involved, and the
overall purpose of the contract (Koloms, 177 Ill. 2d at 479; Outboard
Marine, 154 Ill. 2d at 108). “All the provisions of the insurance
contract, rather than an isolated part, should be read together to
interpret it and to determine whether an ambiguity exists.” United
States Fire Insurance Co. v. Schnackenberg, 88 Ill. 2d 1, 5 (1981). If
the words used in the policy are clear and unambiguous, they must be
given their plain, ordinary, and popular meaning (Central Illinois
Light, 213 Ill. 2d at 153), and the policy will be applied as written,
unless it contravenes public policy (Hobbs, 214 Ill. 2d at 17).
If the words used in the insurance policy are reasonably
susceptible to more than one meaning, they are considered ambiguous
and will be construed strictly against the insurer who drafted the
policy. Central Illinois Light, 213 Ill. 2d at 153; Koloms, 177 Ill. 2d
at 479; Outboard Marine, 154 Ill. 2d at 108-09. This is especially true
with respect to provisions that limit or exclude coverage. Outboard
Marine, 154 Ill. 2d at 119; Pioneer Life Insurance Co. v. Alliance
Life Insurance Co., 374 Ill. 576, 586 (1940). A contract is not
rendered ambiguous merely because the parties disagree on its
meaning. Central Illinois Light, 213 Ill. 2d at 153. A court will
consider only reasonable interpretations of the policy language and
will not strain to find an ambiguity where none exists. Hobbs, 214 Ill.
2d at 17; Eljer Manufacturing, 197 Ill. 2d at 293; Schnackenberg, 88
Ill. 2d at 5. “Although policy terms that limit an insurer’s liability will
be liberally construed in favor of coverage, this rule of construction
only comes into play when the policy is ambiguous.” Hobbs, 214 Ill.
2d at 17.
Exclusions such as those contained in the policy before us are not
contrary to public policy. “Disability insurance is designed to provide
protection from loss of income caused by an injury or disease which
either limits or destroys the insured’s ability to work.” 10A Couch on
Insurance 3d §146:2, at 146–10 (1998); 1 J. Appleman & J.
Appleman, Insurance Law & Practice §23, at 60 (1981) (same).
“Some policies may expressly limit liability to disabilities that are
solely the result of an accident, as distinguished from a disability
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which results in part from the insured’s prior condition or some other
cause than an accident, such as illness or disease.” 10A Couch on
Insurance 3d §146:12, at 146–30 (1998). Further:
“Modern policies, however, are more likely to cover
disabilities resulting from both accident and illness, but to vary
the benefits depending on which. For example, a policy may
afford benefits for a limited amount of time where the
disability is caused by sickness or disease, but provide longer,
even unlimited, benefits where disability results from
accident.” 10A Couch on Insurance 3d §146:12, at 146–31
(1998).
Accordingly, the extent of an insurer’s liability under a disability
insurance policy depends on the terms of the insurance contract. 22A
Ill. L. & Prac. Insurance §383, at 73 (1999).
Additionally, the inclusion of time limitations in insurance policies,
such as the 90-day limitation in the policy before us, does not violate
public policy. Kirk v. Financial Security Life Insurance Co., 75 Ill. 2d
367, 377 (1978); accord 10A Couch on Insurance 3d §146:22, at
146–48 (1998) (stating that “it is common for the policy to require
that the disability occur within a specified time after the injury”); 1C
J. Appleman & J. Appleman, Insurance Law & Practice §612, at 128
(1981) (stating that insurance contracts frequently provide “that death
or disability must follow within a stipulated number of days following
an accident. These provisions have been considered valid and
enforceable”). As there is nothing in the insurance contract before us
that violates public policy, if its language is unambiguous, it is our
duty to give it effect. Hobbs, 214 Ill. 2d at 18.
In the present case, viewing the policy as a whole, while not a
model of clarity, we conclude that the policy language is
unambiguous. The policy entitles plaintiff to lifetime benefits for a
disability resulting from an “injury.” The policy defines “injury” as an
“accidental bodily injury sustained by the Insured while the Policy is
in force.” A contract term may be unambiguous because it has
acquired an established legal meaning. Schnackenberg, 88 Ill. 2d at 5.
“Accidental bodily injury” refers to an unforeseen or unexpected
bodily injury. See Yates v. Bankers Life & Casualty Co., 415 Ill. 16,
19 (1953); Carney v. Paul Revere Life Insurance Co., 359 Ill. App.
3d 67, 82 (2005).
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The policy otherwise limits plaintiff to a five-year benefit period
for a disability resulting from a “sickness.” The policy includes in its
definition of “sickness” four types of injuries. Although the
punctuation used in an insurance contract cannot be manipulated to
alter the plain meaning of the text, rules of grammar may be consulted
to illumine the true meaning of the language used. See Continental
National America Insurance Co. v. Aetna Life & Casualty Co., 186
Ill. App. 3d 891, 897 (1989); 2 Couch on Insurance 3d §22:5 (2005).
In this case, the absence of commas in the policy limitation indicates
a series of restrictive clauses that identify or define the antecedent
noun–injury. See W. Strunk & E. White, The Elements of Style 3-4
(3d ed. 1979) (discussing restrictive and nonrestrictive clauses). Thus
the policy limitation can be separated as follows: (1) an injury which
is a direct or indirect result of physical or mental infirmity; (2) an
injury which is a direct or indirect result of illness, or disease of any
kind; (3) an injury which is a direct or indirect result of medical or
surgical treatment therefor; or (4) an injury which results in total
disability which commences more than 90 days after the date the
injury is sustained will be deemed to be “sickness.” By deeming these
four types of injury as sickness, the policy excludes them from lifetime
benefits for an “accidental bodily injury,” but rather limits them to five
years of benefits for a sickness. This construction is consistent with a
natural reading of the policy, grammar, and the nature of this type of
policy.
Plaintiff assigns error to the appellate court’s conclusion that
defendant properly administered his claim as a “sickness” under the
terms of the policy. Plaintiff contends that his “exposure to
staphylococcal bacteria is a compensable accidental injury under the
Policy.” However, plaintiff’s contention ignores the policy’s two
coverage limitations. First, regarding the 90-day period between injury
and disability, plaintiff’s characterization of the May 18, 1999,
infection as an “injury” does not negate the causative effect of the
January 19, 1999, accident. Second, even viewing the May 18, 1999,
infection in isolation, plaintiff’s alleged “new injury” is nonetheless
properly limited to coverage as a “sickness” under the policy as being
the result of illness or disease or medical or surgical treatment
therefor.
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A. “More Than 90 Days”
The appellate court held that defendant properly administered
plaintiff’s claim as a “sickness” under the policy’s 90-day injury
limitation period. After reviewing the record, the appellate court
concluded that the circuit court ignored the uncontested evidence,
which compelled a finding “that plaintiff’s injury fell squarely within
the policy’s definition of a sickness.” We agree.
The undisputed evidence demonstrates that plaintiff injured his
wrist on January 19, 1999. Although plaintiff sustained the injury in
January 1999, he did not become totally disabled until May 18, 1999,
more than 90 days after he sustained the injury. The policy defines
“Total Disability” as the “complete inability of the Insured due to
Injury or Sickness to perform any and every duty pertaining to an
occupation *** for remuneration or profit.” The date of “Total
Disability” is an uncontested fact supported by the record. It was also
undisputed that plaintiff’s disability arose from the staph infection
incurred from the May 18, 1999, surgery, four months after his initial
injury at work on January 19, 1999. Moreover, plaintiff himself first
provided the May 18, 1999, date of disability in his initial disability
claim notice to defendant. He described his “injury” as a torn ligament
in his right wrist, incurred on January 19, 1999, and stated that he
became totally disabled on May 18, 1999, because of an infection in
his wrist following an operation. Plaintiff then submitted an attending
physician statement, verified by Dr. Schenck, which also confirmed
that his employment activities were first restricted on May 18, 1999.
Subsequent to his retention of counsel, plaintiff has steadfastly
contended that the May 18, 1999, infection was a “new” and
independent injury. If we were to accept plaintiff’s contention, his
disability would axiomatically occur within the 90-day limitations
period between injury and disability. However, we cannot accept this
contention because it ignores the causative effect of the January 19,
1999, accident.
The controlling principles are widely recognized. The secondary
results of an accident do not break the causal connection thereto.
“Accordingly, the fact that an insured incurs an infection or disease
following an accident does not break the thread of causation from the
accident to the ultimate result where such infection or disease is the
result of the accident.” 10 Couch on Insurance 3d §139:30, at 139–68
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through 139–69 (1998). In other words: “If *** the insured has
received an injury covered by the contract which has necessitated an
operation, the performance of the operation does not, in itself,
constitute an independent, intervening cause nor prevent the accident
from remaining the proximate cause of death [or disability].” 1B J.
Appleman & J. Appleman, Insurance Law & Practice §412, at 175-76
(1981). Further:
“Disability or death resulting from the medical treatment
of a covered accidental injury is regarded as having been
caused by such injury and compensable under the accident
policy, if the treatment administered was necessary or proper
because of injury. Whether a particular surgical act performed
is one which could be considered an accident, in light of
subsequent developments, is something which usually must be
determined under the facts of each different case.” 1B J.
Appleman & J. Appleman, Insurance Law & Practice §414, at
181 (1981).
In other words, where an accidental injury leads to medical
complications, which in turn lead to the covered loss, the “accident”
is the event that caused the original injury–the “accident” is not the
development of medical complications. Jurrens v. Hartford Life
Insurance Co., 190 F.3d 919, 923 (8th Cir. 1999) (applying South
Dakota law).
Applying these principles to the present case, there is no genuine
factual issue regarding the causative effect of plaintiff’s January 1999
injury. It cannot go unnoticed that defendant repeatedly advised
plaintiff that there was nothing defendant could do under the terms of
the policy to alter its benefit determination based on the length of time
reported between the date of his injury, January 19, 1999, and the
onset of his total disability, May 18, 1999. Defendant repeatedly
advised plaintiff, through his counsel, that to be considered eligible for
lifetime benefits under the policy, plaintiff would need to provide
documentation to support a finding that he became disabled within 90
days of his injury. Defendant also specifically asked plaintiff to confirm
whether the date of disability that plaintiff provided on his claim form,
May 18, 1999, was in fact the correct date that his disability
commenced. Plaintiff did not–and could not–provide any proof to the
contrary.
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Indeed, plaintiff’s own medical expert, Dr. Coe, clearly negates
plaintiff’s contention. Throughout his comprehensive report, Dr. Coe
refers only to one injury–plaintiff’s wrist injury incurred in a work
accident on January 19, 1999. According to Dr. Coe, from that single
injury flowed plaintiff’s resulting symptoms and treatment thereof,
which included surgery, and the development of the infection and
plaintiff’s disability. Dr. Coe specifically concluded that there was “a
causal relationship between the injury suffered by Mr. Rich at work
for H&W Motor Express on January 19, 1999, and his current
symptoms and state of impairment.” Plaintiff cannot make the date of
disability earlier, and his attempt to make the date of injury later
cannot succeed based on this record. See, e.g., Jurrens, 190 F.3d at
922-23 (affirming summary judgment for defendant insurer and
rejecting plaintiff’s contention that infection resulting from accident
was itself accident that came within policy limitations period, noting
that plaintiff’s own expert witness identified initial accident as cause
of injury).
B. Illness, Disease, or Treatment Therefor
Further, even if plaintiff could amend the dates of injury and
disability so as to come within the 90-day limitations period, his claim
for lifetime benefits fails nonetheless. We conclude that plaintiff’s
claim for lifetime benefits fails because his alleged new and
independent injury, occurring on May 18, 1999, fell within the policy
exclusion for injury resulting from illness or disease, or medical or
surgical treatment therefor.
The appellate court held that plaintiff’s alleged “new injury” was
not an “accidental” injury that was cognizable by the policy’s general
grant of coverage. Accordingly the appellate court did not consider
whether the injury was excluded as a direct or indirect result of
infirmity, illness, or disease, or medical or surgical treatment therefor.
Assigning error to this reasoning, plaintiff contends that injury
resulting from surgery can constitute an “accident” under Illinois law.
Considered in isolation, plaintiff’s contention is unremarkable. In
Christ v. Pacific Mutual Life Insurance Co., 312 Ill. 525 (1924), this
court reviewed the definitions and applications of the term “accident”
in insurance cases, and adopted the view of the United States Supreme
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Court in United States Mutual Accident Ass’n v. Barry, 131 U.S. 100,
33 L. Ed. 60, 9 S. Ct. 755 (1889). Under the rule adopted in Illinois:
“[I]f an act is performed with the intention of accomplishing
a certain result, and if, in the attempt to accomplish that result,
another result, unintended and unexpected, and not the
rational and probable consequence of the intended act, in fact,
occurs, such unintended result is deemed to be caused by
accidental means.” Yates, 415 Ill. at 19.
In Christ, the insured committed an intentional act of drinking water
from a faucet. However, because of an unknown defect in the valve
of the water pipes, he drank polluted water and contracted typhoid
fever, from which he died. This court deemed the unforeseen and
unexpected occurrence in the act preceding the injury to render the
injury “accidental.” Yates, 415 Ill. at 20 (discussing Christ). See
Carney, 359 Ill. App. 3d at 82 (finding insured’s injury to be
“accidental bodily injury” under terms of disability insurance policy).
In the present case, Christ appears conclusive on this point and
indicates that plaintiff incurred “accidental bodily injury.” See Reid v.
Aetna Life Insurance Co., 440 F. Supp. 1182, 1183 (S.D. Ill. 1977)
(applying Illinois law), aff’d without op., 588 F.2d 835 (7th Cir.
1978). Accordingly, plaintiff would be entitled to lifetime disability
benefits absent any limitations or exclusions in the policy. Indeed,
reading the policy as a whole, the exclusion would be superfluous if
it limited losses which the policy’s general insuring clause did not
cover. “An exclusion in an insurance policy serves the purpose of
taking out persons or events otherwise included within the defined
scope of coverage.” General Insurance Co. of America v. Robert B.
McManus, Inc., 272 Ill. App. 3d 510, 514 (1995); accord Hammer v.
Lumberman’s Mutual Casualty Co., 214 Conn. 573, 588-89, 573
A.2d 699, 706 (1990) (collecting authorities). Therefore, the issue is
whether or not the injury falls within the policy exclusion for illness or
disease, or medical or surgical treatment therefor. See Litman v.
Monumental Life Insurance Co., 289 Ill. App. 3d 181, 184 (1997)
(identifying dispositive issue as whether insured’s death occurred as
result of medical treatment, for which accidental death policy excluded
coverage); Reid, 440 F. Supp. at 1183 (same). The Christ and Carney
cases, upon which plaintiff relies, are inapposite because they do not
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involve a plaintiff’s injury that resulted from medical or surgical
treatment.
Viewing the May 18, 1999, staph infection as a new and
independent injury, there can be no credible dispute that the injury was
the result of surgical treatment. Accordingly, under the terms of the
policy, we must deem the injury to be a sickness, and conclude that
defendant correctly administered plaintiff’s claim as such. This result
is made clear simply by reading the policy exclusion in light of the
undisputed facts, inserted with brackets: “Injury [May 18, 1999,
infection] which is a direct or indirect result of physical *** infirmity,
illness, or disease of any kind [tear of the right scapholunate ligament
with segmental instability], or medical or surgical treatment therefor
[the May 18, 1999, wrist surgery] *** will be deemed to be Sickness.”
According to the policy, an insured who sustains “accidental bodily
injury” while the policy is in force is entitled to lifetime disability
benefits. As a court construed a similar policy: “An accident is an
unintended occurrence. If such happens during medical treatment, it
is still an accident, but it is not a risk assumed by the insurance
company under the terms of the policy.” Whetsell v. Mutual Life
Insurance Co. of New York, 669 F.2d 955, 957 (4th Cir. 1982)
(applying South Carolina law); accord Dinkowitz v. Prudential
Insurance Co. of America, 90 N.J. Super. 181, 188-89, 216 A.2d 613,
618 (Law Div. 1966).
Pointing to the specific language of the policy limitation, plaintiff
argues that the policy does not consider injury from surgery for any
reason to be a “sickness.” According to plaintiff: “By simply omitting
the term ‘therefor’ after ‘medical or surgical treatment’ this could
have been accomplished. Defendant cannot be correct that Injury from
surgery for any reason is deemed a Sickness because that
interpretation renders ‘therefor’ meaningless.” This argument is
unavailing. The policy exclusion at issue in Dinkowitz was
substantially similar to the limitation in this case: “No such benefit
shall be payable if such death results *** directly or indirectly from
bodily or mental infirmity or disease in any form, or medical or
surgical treatment therefor.” (Emphasis added.) Dinkowitz, 90 N.J.
Super. at 183, 216 A.2d at 614. The court in Dinkowitz enforced the
coverage exclusion in accord with the majority rule.
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Indeed, “[i]t appears that every court that has considered similar
exclusionary clauses has held such provisions to exclude from
coverage death [or disability] caused by various mishaps occurring
during the course of medical treatment.” Whetsell, 669 F.2d at 956
n.1 (collecting cases); see Litman, 289 Ill. App. 3d at 184-87
(discussing cases); Hammer, 214 Conn. at 589-91, 573 A.2d at 707
(collecting cases); Pitman v. Commercial Travellers’ Eastern
Accident Ass’n, 284 Mass. 467, 470, 188 N.E. 241, 243 (1930)
(finding that death of insured from tetanus infection during surgery fell
within exception to accident policy for surgical operation or medical
treatment); J. Zitter, Annotation, What Constitutes Medical or
Surgical Treatment, or the Like, Within Exclusionary Clause of
Accident Policy or Accidental-Death Feature of Life Policy, 56
A.L.R. 5th 471 (1998). Plaintiff points to no case that has held medical
mishaps to be covered under such exclusions.
Plaintiff insists that our conclusion is inconsistent with the
reasonable expectations of an insured. However:
“The parties to an insurance contract may incorporate in it
such provisions, not in violation of law, as they choose; and it
is the duty of the courts to construe and enforce the contract
as made. We are not warranted, under the cloak of
construction, in making a new contract for the parties.”
Pioneer Life Insurance, 374 Ill. at 590 (collecting cases).
Reading the policy as a whole, the average policyholder could not
reasonably reach a conclusion of coverage in these particular
circumstances in light of the policy limitation. Applying plaintiff’s
contention would render the policy limitation meaningless, and read
into the insurance contract something that is not there. See Hammer,
214 Conn. at 591, 573 A.2d at 707.
We further observe that plaintiff cannot claim surprise or
unfairness by our holding. The insurance application itself shows that
plaintiff was quite aware, during the application process, that the
policy would limit benefits to five years for a sickness as defined by
the policy. Further, when defendant accepted the application and the
insurance contract was formed, the policy afforded plaintiff a 10-day
“free look” period, during which time he could cancel the policy if its
terms and conditions were unacceptable. However, plaintiff not only
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chose to purchase and keep the policy, but received disability benefits
for five years, pursuant to the policy.
There being no genuine issue of material fact, we conclude that
defendant is entitled to a judgment as a matter of law based on either
of the two above-discussed policy limitations. Accordingly, we hold
that the appellate court properly entered summary judgment in favor
of defendant.
III. CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
affirmed.
Affirmed.
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