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Green v. Voyager Property and Casualty Insurance Co.9/24/2002
UNPUBLISHED
In this insurance policy coverage case, plaintiffs appeal as of right the trial court's grant of summary disposition in favor of defendant. We affirm.
In November 1999, the deceased, Della Green, underwent a colonoscopy on an outpatient basis. The next day, family members found Green unconscious at her home. Despite medical efforts to resuscitate her, Green died. Green had purchased an insurance policy with defendant and when plaintiffs attempted to collect death benefits under the policy, defendant denied the claim. Thereafter, plaintiffs filed a two-count complaint alleging breach of contract and requesting equitable or declaratory relief.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(10) on the bases that the circumstances surrounding Green's death do not qualify as an injury under the policy language and that the cause of her death is excluded from coverage under the policy. The accidental death benefit section of the policy states:
When we receive due proof that a Covered Person dies, we will pay the benefit shown on the Schedule of Benefits to his named Beneficiary; provided:
(1) Death occurs as a direct result of any Injury ; and
(2) Death occurs with 365 days of the accident causing the Injury .
The definition of injury is provided in the definitions section of the policy:
INJURY means bodily injury caused by an accident. The accident must occur while the Covered Person's insurance is in force under the Group Policy. The Injury must be the direct cause of loss and must be independent of all other causes. The Injury must not be caused by or contributed to by Sickness, Illness or Disease.
In the exclusions section, the policy states in pertinent part:
We will not pay a benefit for a loss which is caused by, results from, or contributed to by:
(4) Sickness or its medical or surgical treatment, including diagnosis[.]
In support of its motion, defendant provided a number of documents, including records from the doctor that performed the colonoscopy. His notes indicate that Green was referred to him "for new onset constipation and anemia" and he recommended a colonoscopy, which he later performed. Defendant provided the Wayne County Medical Examiner's Office's post-mortem summary and opinion, in which a deputy medical examiner opined that the cause of Green's death is unknown. Following a review of Green's medical record and the autopsy report, plaintiffs' own expert, Miles J. Jones, M.D., indicated that "To a reasonable degree of medical certainty, Mrs. Green died as a result of hypoglycemic coma. Her manner of death is best characterized as a consequence of medical treatment." Dr. Jones noted that Green was an insulin dependent juvenile diabetic and therefore was required to take insulin daily. He also noted that the medical records from the colonoscopy failed to instruct Green on adjusting her insulin intake in the twenty-four hour period before and after the colonoscopy. According to Jones, Green "died as a result of hypoglycemia due to continued normal insulin utilization in the face of significantly decreased or absent caloric intake for a period of 48 hours."
In response to defendant's motion for summary disposition, plaintiff provided an affidavit of a gastroenterologist, William M. Bisordi, M.D., F.A.C.P. Having reviewed the pertinent medical records, Dr. Bisordi opined that Green did not die due to anemia, her diabetic condition, or both, or the colonoscopy procedure, or due to a sickness, nor the medical or surgical treatment of sickness; rather, her death was due to the failure of the docto
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