MEMORANDUM & ORDER
KENNETH G. GALE United States Magistrate Judge
Before the Court are the various dispositive motions filed by the parties, along with corresponding exhibits, responses and replies:
a. Plaintiff’s “Motion for Protective Order and a Determination as a Matter of Law . . . that Plaintiff is Entitled to a de novo Review of Defendant’s Decision to Deny Coverage” and memorandum in support (Docs. 204, 214);
b. Defendant’s Motion for Summary Judgment and memorandum in support (Docs. 341, 349); and
c. Plaintiff’s Motion for Summary Judgment and memorandum in support (Doc. 342, 347).
Plaintiff’s claim is for payment of an Accidental Death and Dismemberment insurance benefit arising out of the death of a Wichita firefighter which occurred as a result of a heart attack suffered while fighting a fire. Because the undisputed material facts establish that the decedent’s death did not “result directly and independently of all other causes from accidental bodily injuries” within the meaning of the policy coverage provision, there is no coverage for the claimed loss under the insurance policy.
Additionally, the Court finds that the existence of the attachment of a Statement of ERISA Rights to the policy (a policy which is exempt from ERISA by law) has no substantive impact on the determination of the central legal issue in this case. The Court further finds that Defendant included this ground for denial in both the initial claim denial and the appeal denial, and that Defendant would be allowed to rely on this reason for denial before this Court even if it had not done so. As such, the Court GRANTS Defendant’s Motion for Summary Judgment.(Doc. 341.) Plaintiff’s “Motion for Protective Order and a Determination as a Matter of Law . . . that Plaintiff is Entitled to a de novo Review of Defendant’s Decision to Deny Coverage” (Doc. 204) and Motion for Summary Judgment (342) are both DENIED.
This is a breach of contract claim relating to insurance coverage for Captain Urban Eck (“Decedent”), a fire fighter for the City of Wichita, Kansas. Plaintiff contends that Defendant breached its duties under the policy of insurance it issued for the Decedent. Plaintiff contends that Decedent’s death should be considered “accidental” under the policy at issue. Plaintiff contends that Defendant voluntarily made the Employee Retirement Income Security Act (“ERISA”) part of the applicable policy and failed to provide certain rights required by ERISA, including the right to a “full and fair” appeal. Plaintiff further contends that improperly Defendant added “lack of an accident” as new reason for denial of coverage after the litigation commenced. Defendant argues that ERISA does not apply to the insurance policy, that Plaintiff’s death was not accidental within the meaning of the policy, and that it maintained this position throughout the insurance claim and appeal process.
I. UNDISPUTED FACTS.
The following facts are material and undisputed for purposes of the above-referenced motions.
A. Decedent’s Employment and Training.
Decedent was a firefighter employed by the City of Wichita Fire Department (“WFD”). He was hired as a firefighter in 1982, was promoted to Lieutenant in 1989, and promoted to Captain in 1994. It is uncontroverted that Decedent was an experienced firefighter who received as much training as other firefighters in the Wichita Fire Department.
WFD firefighters are required to master basic fire suppression skills, including climbing ladders, operating equipment, and employing protective equipment. WFD firefighters must have the ability to operate in conditions that are immediately dangerous to life and health, such as may arise during a structure fire. This is covered with WFD firefighters during their training. WFD firefighters are also aware of the physically and emotionally stressful nature of their work.
B. The Parties Enter into an Insurance Contract.
Plaintiff is the Wichita Firemen’s Relief Association (“WFRA” or “Plaintiff”), which is “composed of the regularly appointed members of the Wichita Fire Department” in Wichita, Kansas. (Doc. 347-20, sealed, at 3.) Plaintiff is organized pursuant to the Firefighters Relief Act, K.S.A. § 40-1701, et seq. The purpose of Plaintiff is “to receive, use and disburse funds for the benefit of members of the Association or their beneficiaries.” (Id.) Defendant Kansas City Life Insurance Company (“KCL” or “Defendant”) is an insurance corporation “organized and existing pursuant to the laws of the state of Missouri ” and registered to conduct business in Kansas. (Doc. 75, at 1.)
The parties entered into a group policy insurance contract on September 1, 2001, policy number GL-7389. Plaintiff WFRA was the named beneficiary under the policy. Effective April 1, 2007, the parties reached an agreement to add accidental death and dismemberment insurance (“AD&D Rider”). Under the terms, conditions, and exclusions of this policy, Decedent Urban Eck was insured against death, disability, and death by accidental means. The AD&D coverage was in effect on the date of Decedent’s death, January 2, 2010. Plaintiff paid the premiums to Defendant for the policy.
The “Benefit” section of the AD&D Rider stated, in relevant part, that the benefit would be paid upon receipt of satisfactory proof that the loss “results directly and independently of all other causes from accidental bodily injuries, ” the “accident which caused the loss” occurred while the individual was insured under the rider, and the loss occurred within 180 days “after the accident.” (Doc. 215-11, at 11-12.) The “Exclusions” of the AD&D Rider stated in part that “No amount will be payable for loss caused by, contributed to or resulting from . . . (5) bodily or mental illness or disease of any kind, or medical or surgical treatment of the illness or disease[.]” (Id., at 12.) Neither the policy nor the AD&D Rider include definitions of “bodily injury, ” “accident, ” “accidental death, ” “illness, ” “accidental bodily injuries” or “disease.”
C. “Statement of ERISA Rights.”
The parties have differing interpretations as to whether or not the insurance policy in controversy was issued with an attachment consisting of the “Statement of ERISA Rights”/“Claim Procedures for Life Insurance Plans” attachment (hereinafter referred to as “Statement of ERISA Rights”). (215-13.)
Matthew O’Connor, Defendant’s Assistant General Counsel for Investments, testified that he “assumed” the Statement of ERISA Rights was made part of the WFRA group insurance benefits policy. Jeffrey Seeman, Defendant’s Vice President of Group Insurance, testified that he “believed” the standard form policy would include a Statement of ERISA rights because “most” – but not all – group insurance policies are provided by an employer and are covered by ERISA. Also, Mr. Seeman and Cynthia Anderson, Defendant’s Assistant Vice President of Group Underwriting, attested that “[a]t the time of the issuance” of the policy at issue, “KCL’s normal and customary business practice was to attach the ‘Statement of ERISA Rights’ to all insurance policies when issued, regardless of whether ERISA is applicable to that specific policy.” (Doc. 347-27, at 3; Doc. 347-28, at 3.)
Plaintiff was not aware of the “Statement of ERISA Rights” pages until after the litigation had commenced. (Doc. 364-9, at 13.) Further, at no time between 2001 and 2009 did members of Plaintiff’s Board believe that any of the Association’s members were entitled to ERISA rights or protections. (Doc. 364, at pg. 88, ¶ 91; Doc. 364-9, at 29.) Plaintiff has no evidence that it ever even received the “Statement of ERISA Rights” during the relevant time period. (Doc. 364, at 89-90; Doc. 364-9, at 52-53.) For the purpose of this ruling, however, the Court will assume that when the policy was delivered to the plaintiff it included the two final pages, which the parties identify as associated with ERISA rights.
D. Decedent fights a fire as part of his job duties.
On December 13, 2009, Decedent and approximately 70 other city firefighters fought a two-alarm fire at Cedar Lakes Condominiums in Wichita, Kansas. The building was a total fire loss. Decedent fought this fire for approximately one hour of uninterrupted work under extreme conditions. Although Decedent did not engage in firefighting under such conditions on a daily basis as part of his job, the working conditions at the fire at issue were consistent with Decedent’s training as well as an expected part of his job duties. Decedent was not subjected to an unexpected manifestation of force at the subject fire. He did not fall, did not have a portion of the structure collapse on him or under him, and did not get hit by a portion of the structure.
Decedent and two of his crew did, however, report to rehab for medical treatment following the fire. Acting WFD Lieutenant Paul Wiebe was one of the officers working rehab during the subject fire. Wiebe observed that Decedent “had an irregular heartbeat and his vitals would not come down to normal limits.” MICT Michael Turner also worked rehab during the subject fire. Turner indicated that Decedent was held in rehab as a result of an elevated heart rate that did not exhibit normal recovery. Decedent’s heart rate did recover to the threshold limit. Forty-five WFD firefighters were evaluated after the fire and three required advanced assistance. All four members of Decedent’s crew were held in rehab for at least 20 minutes. Decedent remained in rehab for approximately 45 minutes.
E. Plaintiff’s Post-Fire Medical Treatment.
Progress notes regarding Decedent from cardiologist Dr. Wassim Shaheen dated December 18, 2009, state that Decedent “today reports that the symptoms started many years ago, however, since Sunday while working he noticed that his heart has been racing faster than it usually does. The patient describes it as fast beats.” Dr. Shaheen performed a transesophageal echocardiogram which showed enlargement of Decedent’s left atrium and significant thickening of the posterior leaflet of the mitral valve, which usually reflects myxomatous changes. The echocardiogram indicated that Decedent had mitral valve prolapse with mitral insufficiency. Decedent was diagnosed with severe mitral insufficiency secondary to posterior leaflet mitral valve prolapse on December 19, 2009.
On Dec. 21, 2009, Dr. Shaheen performed a heart catheterization on Decedent, determining that his coronary arteries did not have any blockage, but the mitral valve needed repair. Surgery for the mitral valve repair occurred on December 29, 2009, following Decedent’s admission to the hospital on December 28, 2009. During the surgery, mitral valve inspection indicated a myxomatous valve with a largely detached posterior leaflet. In addition, at least 3 chordal structures were disrupted. The surgeons were satisfied that Decedent’s repair was adequate, but when they tried to take Captain Eck off of the bypass machine, cardiac function was poor and the surgeons indicated that they struggled. Decedent died on January 2, 2010, following his surgery.
The parties have advanced conflicting expert opinions regarding the cause of Decedent’s death. Plaintiff contends it was the result of an acute rupture of the chordae tendineae caused by extreme physical exertion while fighting the fire. Defendant contends that Decedent suffered from chronic mitral valve disease that worsened for several years and that “physical exertion was not the cause of his severe chronic mitral regurgitation that led to chordal disruption and a partially flail leaflet of the mitral valve.” Defendant further contends that Decedent “had a massive acute myocardial infarct (or heart attack) caused by kinking and obstruction of the decedent's circumflex coronary artery resulting from the mitral valve annulus placement during mitral valve surgery.” (Doc. 349, sealed, at 23.)
For the purpose of this ruling, the Court assumes that plaintiff’s view of the medical issues would prevail, and that Decedent’s death was the result of an acute rupture of the chordae tendineae caused by extreme physical exertion while fighting the fire.
F. Plaintiff Files a Claim for AD&D Benefits and Appeals Defendant’s Denial Thereof.
After Decedent’s death, Plaintiff filed claims for death benefits and AD&D benefits under the policy. On February 17, 2010, Defendant paid the death benefit claim directly to Plaintiff.
On February 26, 2010, Defendant denied the claim for AD&D benefits relating to Decedent. Accidental injury is the primary coverage predicate of the policy at issue. The denial letter, from Senior Claims Examiner Kelly Wenninghoff, stated that Decedent’s “death was not caused directly and independently of all causes from accidental injury as the insured’s underlying heart condition, as well as circumstances surrounding the surgery, contributed to his death and therefore, the applicable exclusions of the policy apply.” (Doc. 347-17, sealed, at 2.) The letter continues that “benefits are payable if the loss results directly and independently of all other causes from accidental bodily injuries.” (I ...