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Kinsley v. National Union Fire Ins. Co. of Pittsburgh, PA

Superior Court of Delaware, New Castle

June 16, 2015

DORIS B. KINSLEY, Plaintiff,
v.
NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, PA, Defendant.

Submitted: May 18, 2015

Upon Consideration of Defendant 's Motion to Dismiss Count II of Plaintiff's Complaint. GRANTED.

Paul A. Bradley, Esquire, MARON MARVEL BRADLEY & ANDERSON, LLC, Wilmington, Delaware. Attorney for Plaintiff.

Robert J. Cahall, Esquire, and Donald Kinsley, Esquire, MCCORMICK & PRIORE, P.C., Wilmington, Delaware. Attorneys for Defendant.

OPINION.

Charles E. Butler Judge Charles E. Butler

INTRODUCTION

In 2010, Daniel Kinsley ("the Insured") purchased a Blanket Accident Insurance Policy ("the Policy") under which the Plaintiff, Daniel's mother, would receive $100, 000 upon the accidental death of Daniel Kinsley. Daniel passed away, and the Defendant, National Union Fire Insurance Company of Pittsburgh, ("the Insurance Company") has denied the payment of benefits under the accidental death provision, asserting that Daniel's death was not the result of an accident. Plaintiff, Doris Kinsley, has sued the Defendant alleging breach of contract and bad faith. Defendants have moved to dismiss or to stay the bad faith claim.

FACTS

The following facts are taken from the Plaintiff's Complaint and the ten exhibits attached thereto. The Insured fell at his home on or about December 8, 2012. He died on January 4, 2013. Plaintiff filed a claim under the policy on or about January 15, 2013. Plaintiff thereafter filed the claim forms, the death certificate, and medical records.

In a letter dated April 9, 2013, the Insurance Company denied the claim on grounds that the death was not related to an accident or injury, noting that the manner of death listed on the Insured's death certificate was "natural." Plaintiff filed an internal appeal of the claim denial and submitted additional medical records to the Insurance Company. In a letter dated April 3, 2014, Defendant affirmed the denial of the claim but gave a more elaborate explanation for the denial. That letter explained that the Insurance Company had considered: a New Jersey Department of Health Certificate of Death, the EMS reports, correspondence with one of the Insured's Medical Doctors, the Plaintiff's letter appealing the denial, the Insured's medical records, a medical opinion from a board certified forensic pathologist, and a review by in house counsel.

The letter went on to explain: (1) that a review of those items revealed a finding that Mr. Kinsley had a past medical history including morbid obesity, hyperlipidemia, gatroesophageal reflux, esophogitis and prior left foot surgery; (2) that the emergency room records show that, when he presented to the emergency room, the Insured indicated that he fell one week prior and has had increased pain and swelling in his leg; (3) that the death certificate lists the immediate cause of death as arrhythmia due to electrolyte imbalance due to acute renal failure on renal replacement therapy, and it lists the manner of death as "natural;" (4) that the Insurance Company consulted a board certified forensic pathologist who, while recognizing that a case could be made for either a natural or accidental cause of death, opined that there is little reason to believe that the leg injury would have caused death if it was not for the Insured's significant morbid obesity and its associated pulmonary complications.

In turn, Plaintiff retained her own forensic pathologist who produced a report containing opinions that directly contradict the opinions reached by the Defendant's expert. After Plaintiff's expert report was provided to Defendant, Defendant denied the claim in writing for a third time. In that denial letter, Defendant quoted the policy language:

Injury- means bodily injury: (1) which is sustained as a direct result of an unintended, unanticipated accident that is external to the body and that occurs while the injured person's coverage under the Policy is in force; (2) which occurs while such person is participating in a Covered Activity; and (3) which directly (independent of sickness, disease, mental incapacity, bodily infirmity or any other cause) causes a covered loss. . . .
No coverage shall be provided under this Policy and no payment shall be made for any loss resulting in whole or in part from, or contributed to by, or as a natural and probable consequence of any of the following excluded risks even if the proximate or precipitating cause of the loss is an accidental bodily injury . . . 2 sickness, disease, mental incapacity or ...

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