Trust. (Def.’s 56.1 4] 12.)

On May 20, 1999, Mr. Borrelli also suffered from non-alcoholic steato-hepatitis' (“NASH”),
(Def.’s 56.1 9] 14, 35.) Mr. Borrelli had abnormal liver function tests for nine years prior to May
20, 1999. (Def.’s 56.1 431.)

On May 20, 1999, Mr, Borelli was treated at MacNeal Memorial Hospital (“MacNeal”) for
opacification of his right lung with pleural effusion’. (Def.’s 56.1 | 13.) On May 20, 1999, a
thoracentesis’ was performed on Mr. Borrelli by the treating doctor at MacNeal. (Def.’s 56.1 115.)
The treating doctor incorrectly performed the thoracentesis on Mr. Borrelli. (Def.’s 56.1 | 16.) The
incorrectly performed thoracentesis was a doctor’s error. (Def.’s 56.1 17.) The treating doctor
breached the standard of care by performing the thoracentesis below the ninth rib, (Def.’s 56.1 4] 18.)

After Mr. Borrelli’s thoracentesis, he was transferred to the recovery room, where a follow-up
chest x-ray was performed, (Def.’s 56.1 ] 24.) Mr. Borrelli was then discharged from the hospital
and returned home. (Def.’s 56.1 | 25.) Shortly after returning home from his discharge from the
hospital, Mr. Borrelli was found unresponsive with sinus bradycardia‘. (Def.’s 56.1 26.) After
collapsing at home, Mr. Borrelli was transported by ambulance to Loyola University Medical Center

(“Loyola”). (Def.’s 56.1927.) Mr. Borrelli was pronounced dead at 6:20 p.m. on May 20, 1999, at

'Non-alcoholic steato-hepatitis occurs when fat builds up in the liver, causing scar tissue,
and is associated with diabetes, protein malnutrition, obesity, coronary artery disease, and
corticosteroid treatment.

*Pleural effusion is the accumulation of fluid between the layers of the lung membranes
(the pleura).

*Thoracentesis is a procedure to remove fluid from the space between the lungs and the
chest wall.

‘Sinus bradycardia occurs when the heart rate is slower than sixty beats per minute.

4.



Moreover, UnumProvident directs the Court to Senkier v. Hartford Life & Accident
Insurance Co., 948 F.2d 1050 (7th Cir. 1991) and Litman for the proposition that “a medical
mishap is not an accident under an insurance policy that provides benefits for accidental injuries
that cause the death of the insured.” (Def.’s Mem. Supp. Mot. Summ. J, at 9.) However, as this
Court previously noted in its Memorandum Opinion and Order dated January 17, 2002,

Senkier and Litman are distinguishable because, in those cases, the insurance

policy contained medical exclusionary clauses which expressly excluded loss

caused by medical treatment. Mr. Borelli’s {sic] insurance policy does not

contain a medical exclusionary clause excluding coverage of loss resulting from

treatment of the illness he suffered but that caused by iliness, disease, etc.

Michael J, Borrelli Family Trust v, UnumProvident Corp., No. 01 C 6938, 2002 WL 63935, at
*3 (N.D. Ill. Jan. 17, 2002). Because there are genuine issues of material fact as to whether
Mr. Borrelli’s death was accidental or proximately caused by his chronic liver disease,
UnumProvident’s motion for summary judgment is denied.

As mentioned above, UnumProvident has also filed a motion to strike Plaintiffs’ motion
for summary judgment as untimely. In an order dated May 26, 2002, the Court ordered the
parties to file cross-motions for summary judgment on or before June 25, 2002. However, on
July 16, 2002, Plaintiffs filed their cross-motion for summary judgment with their response to
UnumProvident’s motion for summary judgment. Therefore, Plaintiffs’ cross-motion for
summary judgment is not properly before the Court per this Court’s May 26, 2002 order; and

Plaintiffs’ motion for summary judgment, in the alternative to the above stated disposition on the

merits, is denied as untimely.

-9-



life is not an accidental bodily injury direct and independent of all other causes.
(Def.’s 56.1 Ex. Lat 4.)

The Trust appealed the denial of death benefits. (Def.’s 56.1 441.) On January 24, 2001,
UnumProvident upheld the denial of death benefits. (Def.’s 56.1 ] 42.) On September 6, 2001,
Plaintiffs filed the instant action against UnumProvident, seeking a declaratory judgment that
Mr, Borrelli’s life insurance policy provided coverage and that, as a result of his allegedly accidental
death, benefits are due to the Plaintiffs and alleging a breach of contract under the policy.

DISCUSSION

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1) because the
amount in controversy exceeds $75,000 and the matter is between citizens of different states.
“Illinois law controls... because federal courts exercising . . . diversity jurisdiction must apply state
law to matters of substantive law... .” Tummerman v. Modern Indus., 960 F.2d 692, 696 (7th Cir.
1992).

“The insured has the burden of proving that his loss comes within the terms of his insurance
policy.” Roberts v. Allstate Life Ins. Co., 243 Ill. App. 3d 658, 660 (1993); see also Kolowski v.
Metro. Life Ins. Co., 35 F. Supp. 2d 1059, 1061 (N.D. IIL 1998) (noting that beneficiaries bear the
burden of proving that the loss comes within the terms of the insurance policy). The construction
of the provisions and terms of an insurance policy is a question of law. Archer-Daniels-Midland Co.
y. Phoenix Assurance Co. of New York, 975 F. Supp. 1124, 1126 (S.D. Ill. 1997).

In construing an insurance policy, the Court’s task is to ascertain the intent of the

parties to the contract, “with due regard to the risk undertaken, the subject matter that

is insured and the purposes of the entire contract.” . . . If the policy language is

unambiguous, there is no issue of material fact, and the Court must determine the
contract’s meaning as a matter of law affording the contract its plain, ordinary, and

-6-



Loyola. (Def.’s 56.1 4 28.)

On May 21, 1999, an autopsy was performed on Mr. Borrelli at Loyola. (Def.’s 56.1 29.)

Mr. Borrelli’s death was attributed to bleeding in the right pleural cavity. (Def.’s 56.1 ] 32.) On

May 22, 1999, a second autopsy was performed by the Cook County Medical Examiner’s Office.
(Def.’s 56.1 4 33.) The Cook County Medical Examiner attnbuted Mr. Bortelli’s death to
hemothorax due to thoracentesis duc to fatty liver. (Def.’s 56.1 34.)

The improperly performed thoracentesis caused a hemothorax*, which caused Mr. Borrelli’s
death on May 20, 1999, (Def.’s 56.1 ff 19, 20, 21, 22.)

On August 14, 1999, the Trust filed a claim under the policy for death benefits under the
policy, claiming Mr. Borrelli’s death was due to medical malpractice and was considered an
accident. (Def.’s 56.1 36.)

UnumProvident reviewed Mr. Borrelli’s medical records and the nature of his death in
connection with the Trust’s claim for accidental death benefits and determined that Mr. Borrelli’s
death did not meet the requirements for the payment of accidental death benefits under the Policy.
(Def.’s 56.1 937.) On March 2, 2000, UnumProvident denied the Trust’s claim for death benetits
allegedly due under the policy because it believed that Mr. Borrelli’s cause of death was not covered
under the policy’s provisions. (Def.’s 56.1 ff 38, 39.) Specifically, UnumProvident denied the claim
based on its physician’s determination that:

Mr. Borelli [sic] had a right thoracentesis performed for a persistent right pleural

effusion, which resulted from his chronic liver disease. Approximately 3 hours later,

he died as a result of massive bleeding from the thoracentesis site into the right chest

cavity.... Mr, Borelli [sic] had laboratory evidence of a bleeding tendency resulting
from his chronic liver disease, which significantly contributed to death. The loss of

‘Hemothorax is the presence of blood in the pleural space.

-5-



independently of all other causes” to a compensable injury.

Faulkner vy, Allstate Life Ins. Co., 291 Il. App. 3d 706, 712 (1997); see also River v. Commercial
Life Ins. Co., No. 96 C 4022, 1997 WL 603871, at *6 (N.D. Ill. Sept. 25, 1997) (citing Carlson v.
New York Life Ins. Co., 76 Ill. App. 2d 187 (1966)) (“The courts have required insurers to
provide benefits under the ‘injury provision’ as long as the accident is the proximate cause of the
disability.”).

Here, it is undisputed that Mr. Borrelli suffered from chronic liver disease. However,
there are genuine issues of material fact® as to whether Mr. Borrelli’s death was accidental or
proximately caused by his chronic liver disease. Plaintiffs have not presented any evidence as to
the cause of Mr. Borrelli’s death. UnumProvident’s physician opined that “Mr, Borelli [sic] had
laboratory evidence of a bleeding tendency resulting from his chronic liver disease, which
significantly contributed to death.” (Def.’s 56.1 Ex. ] at 4.) However, UnumProvident has not
presented any evidence that NASH causes increased susceptibility to bleeding, The first autopsy
attributed Mr. Bortelli’s death to bleeding in the right pleural cavity which was caused by the
improperly performed thoracentesis. The second autopsy stated that Mr. Borrelli “died as a result
of Hemothorox [sic], due to Thoracentesis due to Fatty Liver.” (Def.’s 56.1 Ex. F at 5.) This
evidence establishes that there is a genuine issue of material fact as to the proximate cause of

Mr. Borrelli’s death.

®Plaintiffs argue that there are no genuine issues of material fact as to whether the
improperly performed thoracentesis caused Mr. Borrelli’s death because paragraph 22 of
UnumProvident’s Statement of Undisputed Material Facts states that medical malpractice was
the proximate cause of Mr. Borrelli’s death. This argument is meritless. Paragraph 22 is not a
statement of face but rather UnumProvident’s /ega/ conclusion and, as such, is Inappropriate in a
Loca! Rule 56.1 Statement of Undisputed Material Facts and will be disregarded.

-8-



Minute Order Form (06097)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 6938 DATE 10/10/2002
CASE THE MICHAEL J. BORRELLI FAMILY TRUS vs. UNUMPROVIDENT
TITLE CORPORATION
[ln the following box (a) indicate the party filing the motion, ¢-g.. plaintiff, defendant, 3rd party pluintifY, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) a} Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion duc
(3) oO Answer brief to motion due. . Reply to answer brief due.
4 oO Ruling/Hearingon___set for at
(5) a Status hearing[held/continued to] [sct for/re-set for] on set for at
(6) a Pretrial conference[held/continucd to] [set for/re-set for] on set for at
(7) o Trial{set for/re-sct for) on al
(8) o [Bench/Jury trial] [Hearing] held/continucd to al
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CO Local Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

cao) oi [Other docket entry] Status hearing held and continued to 10/31/02 at 9:00 a.m.. Enter

Memorandum Opinion And Order. UnumProvident’s motion to strike plaintiffs’ cross-motion for

summary judgment and deny plaintiffs’ requested summary judgment reliefis granted. UnumProvident’s

motion for summary judgment and plaintiffs’ cross motion for summary judgment are denied.
(_il) ff [For further detai] see order attached to the original minute order.]

Si
tt

No notices required, advised in open court.

No notices required. number of notices

OCT, 11.200
Cal,

dockoting deputy initiate

Notices mailed by judge’s staff,

Notified counsel by telephone.

Y | Docketing to mail notices. 7

Mail AO 450 form.

Copy to judge/magistrate judge.

dato mailed aoticg
courtroom

LG deputy's
initials

ute/lime received in
central Clerk's Office

clay deputy initials



CONCLUSION
For the reasons stated herein, UnumProvident’s Motion to Strike Plaintiffs’ Cross-Motion
for Summary Judgment and Deny Plaintiffs’ Requested Summary Judgment Relief is granted.

UnumProvident’s Motion for Summary Judgment and Plaintiffs’ Cross Motion for Summary

Judgment are denied.
IT IS SO ORDERED. Jl
Unite . Darrah, Judge
Unite States District Court
Date: (4g 44)

-10-



popular meaning.

Archer-Daniels-Midland, 975 F. Supp. at 1126 (quoting Outboard Marine Corp. v. Liberty Mut. Ins.
Co., 154 Ill. 2d 90, 108 (1992)) (internal citations and footnote omitted).

The policy provided Mr. Borrelli with coverage for death or bodily injury “resulting
directly and independently of all other causes from bodily injuries caused by accident” and
excluded losses caused by illness, disease or body infirmity. The policy does not define the term
“accident”, Under Illinois law, “[a]n accident is ‘an unforeseen occurrence, usually of an
untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or
unfortunate character.’” Litman vy. Monumental Life Ins. Co., 289 Ill. App. 3d 181, 183 (1997).

UnumProvident argues that summary judgment is appropriate because (1) Plaintiffs have
failed to establish that Mr. Borrelli’s death was accidental as defined under the policy and (2)
Mr. Borrelli’s death was not accidental because it was caused by medical malpractice, which is
not considered accidental under Illinois law.

UnumProvident argues that Plaintiffs have not established that Mr. Borrelli’s death
resulted “directly and independently of all other causes from bodily injury caused by accident”
because Mr. Borrelli’s death was caused, at least in part, by his liver disease. However, the
Illinois courts have rejected the idea that an insured whose preexisting condition contributes to
his death cannot recover.

[A]n injury compensable under [an] accident policy may be proximately caused

by an accident even where the insured was predisposed to the injury due to a

preexisting illness or condition.... The clause, “directly and independently of

all other causes,” is not synonymous with a finding that, for an injury to be

compensable, it must be the result of'an accident that is in no way related to a

preexisting illness. Where the insured suffers from a preexisting condition that
makes an accidental injury more likely, that accident may still lead “directly and

-7-



(“Commercial Insurance”) of Newark, New Jersey. (Def.’s 56.1 4 1.) Commercial Insurance is now
known as UnumProvident. (Def.’s 56.1 41.) The Trust is the designated beneficiary of the policy.
(Def.’s 56,1 § 2.) Buggele is the administrator and trustee of the Trust. (Def.’s 56.1 4 3.)
UnumProvident is a corporation with its principal place of business in Tennessee. (Def.’s 56.1 4 4.)

On or before January 1, 1984, Commercial Insurance issued the policy to the University of
Chicago for the benefit of its employees; and the policy is now maintained by UnumProvident.
(Def.’s 56.196.) The policy has liability limits of $500,000 for death or bodily injury caused by an
accident. (Def.’s 56.1 7.) The policy provides:

TO INSURE such eligible persons of the Policy Holder (herein usually called the

Insured) and their eligible dependents, if any (herein called Insured Dependent)

identified on the Schedule of Insureds of this policy against loss described in PART

I-Description of Coverage, resulting directly and independently of all other causes

from bodily injuries caused by accident occurring while this policy is in force, herein

called such injuries.
(Def.’s 56.1 Ex, C.) The policy also provides that “[t]his policy does not cover loss caused by or
resulting from any one or more of the following: . . . Illness, disease, pregnancy, childbirth,
miscarriage, body infirmity or any bacterial infection other than bacterial infection occurring in
consequence of an accidental cut or wound.” (Def.’s 56.1 Ex. C.) In order to collect accidental death
benefits under the policy, the insured’s death must be considered accidental under the policy’s
provisions and must result “directly and independently of all other causes from bodily injuries.”
(Def.’s 56.1 F¥ 10, 11.) The policy docs not include a medical treatment exclusionary clause. (Pl.’s
56.191.)

Under the Michael J. Borrelli Family Trust Agreement, made on July 15, 1986, the proceeds

under the policies of life insurance and employee benefits entered into by Mr. Borelli are to fund the



v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir, 1994), “One of the principal purposes
of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses
....” Celotex Corp. v, Catrett, 477 U.S. 317, 323 (1986). Thus, although the moving party on a
motion for summary judgment is responsible for demonstrating to the court why there is no genuine
issue of material fact, the non-moving party must go beyond the face of the pleadings, affidavits,
depositions, answers to interrogatories, and admissions on file to demonstrate, through specific
evidence, that there remains a genuine issuc of material fact and show that a rational jury could
return a verdict in the non-moving party’s favor. Celotex, 477 U.S. at 322-27; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254-56 (1986), Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp., 24 F.3d 948, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind, Bank
y. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary judgment,
a court must view all inferences to be drawn from the facts in the light most favorable to the
opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185 F.3d 726,
731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475 U.S, at 586.
If the evidence is merely colorable or is not significantly probative or is no more than a scintilla,
summary judgment may be granted. Anderson, 477 U.S. at 249-50.

BACKGROUND

The undisputed facts taken from the parties’ Local Rule 56.1(a) & (b) statements of material
facts (referred to herein as “P].’s 56.1” and “Def.’s 56.1”) and exhibits are as follows.

Michael J. Borelli (“Mr. Borelli”), now deceased, was an insured under a Group Special Risk

Policy, Policy No. GSR 4745 (“the policy”), issued by Commercial Insurance Company

-2-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE MICHAEL J, BORRELLI
FAMILY TRUST; and NORMAN J.
BUGGELE, as Trustee of the
Michael J. Borelli Family Trust
Case No, 01 C 6938
Plaintiffs,
Hon. John W. Darrah
v.

UNUMPROVIDENT CORPORATION,

Defendant.

we eS SS eS SS

MEMORANDUM OPINION AND ORDER

Plaintiff, the Michael J. Borrelli Family Trust and Norman Buggele, the trustee (collectively
“Plaintiffs”), filed a filed a two-count complaint against Defendant, UnumProvident Corporation.
Count I seeks a declaratory judgment that Michael J. Borrelli’s life insurance policy provided
coverage to Michael J. Borrelli and that, as a result of his allegedly accidental death, benefits are due
to the Plaintiffs. Count II alleges a breach of contract under Michael J. Borrelli’s life insurance
policy. The parties move for summary judgment pursuant to Federal Rule of Civil Procedure 56.
UnumProvident also moves to strike Plaintiffs’ motion for summary judgment as untimely. For the
reasons stated herein, the parties” motions for summary judgment are denied, and UnumProvident’s
motion to strike is granted.

LEGAL STANDARD
Summary judgment is appropriate when there remains 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); Cincinnati Ins. Co.