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Fabyanic v. Hartford Life and Accident Insurance Co.

March 18, 2009


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently pending before the Court for disposition are the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendant, Hartford Life and Accident Insurance Company (Document Nos. 16 and 17), and the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Plaintiff, Matthew Fabyanic, Administrator of the Estate of Nancy Ann Glitsch, Deceased (Document Nos. 19 and 20).

Also pending is the MOTION TO STRIKE PLAINTIFF'S APPENDICES, with brief in support, filed by Hartford Life and Accident Insurance Company (Document Nos. 23 and 24), the BRIEF IN OPPOSITION filed by Plaintiff, Matthew Fabyanic, Administrator of the Estate of Nancy Ann Glitsch, Deceased (Document No. 27), and the REPLY BRIEF filed by Hartford Life and Accident Insurance Company (Document No. 28.)

The motions have been thoroughly briefed and are ripe for disposition.

Summary Judgment Standard of Review

Under Rule 56(c) of the Federal Rules of Civil Procedure, a court should grant summary judgment when "there is no genuine issue as to any material fact and [ ] the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Eichenlaub v. Township of Indiana, 385 F.3d 274, 279 (3d Cir. 2004). In considering a motion for summary judgment, the Court views all evidence in the light most favorable to the party opposing summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 465 U.S. 574, 587 (1986). The party opposing summary judgment must support each essential element of that opposition with evidence of record. Celotex, 477 U.S. at 322-34. On cross motions for summary judgment, the same standards and burdens apply. See Applemans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987).


A. The Medical Treatment of Nancy Ann Glitsch, Decedent

Decedent, Nancy Ann Glitsch ("Ms. Glitsch"), was insured under a welfare benefit plan sponsored by the AFL-CIO Mutual Benefit Fund. Because Ms. Glitsch was a participant in that plan, her beneficiaries were potentially eligible to receive accidental death benefits that were made available through a group insurance policy issued by Hartford Life and Accident Insurance Company ("Hartford") to the AFL-CIO Mutual Benefit Fund, identified as Group Policy ADD-9922 ("Policy").

On March 16, 2006, Ms. Glitsch sustained multiple catastrophic injuries as a result of a motor vehicle accident, to wit: "left distal open comminuted femur fracture, right communiuted tibial plateau fracture, pelvic fractures, left patella fracture, bilateral calcaneous fractures, rib fractures, spine fractures, bilateral nasal fractures, subarachnoid cerebral hemmorhage, lacerated transverse colon, and lacerated spleen." (HLAI 0142.) Ms. Glitsch was life flighted to UPMC Presbyterian Hospital, where she remained for approximately three months and had several surgeries during her lengthy hospitalization.

Gary S. Gruen, M.D., orthopaedic surgeon, treated Ms. Glitsch for her injuries. On July 13, 2006, Dr. Gruen prescribed for Ms. Glitsch fifty (50) tablets of Percocet, 1-2 tablets orally to be taken every six (6) hours for pain, and referred her to the Chronic Pain Clinic to receive her oral medication.

On October 3, 2006, Ms. Glitsch underwent an initial evaluation at Advanced Pain Medicine in Wexford, PA. At that time, she was taking eight (8) 5/325 mg tablets of Percocet, and six (6) 7.5 mg tablets of Vicadin per day for pain. As part of her treatment plan, Ms. Glitsch signed a narcotic contract, her Percocet and Vicadin were discontinued, and she was started on MS Contin (morphine) (HLAI 0096.) Mark R. LoDico, M.D., prescribed twenty-five (25) 60 mg of MS Contin to be taken every 8 - 12 hours as needed for pain.

On October 13, 2006, Ms. Glitsch saw Dianne Hornemann, CRNP, at Advanced Pain Medicine. Dr. LoDico reviewed Ms. Glitsch's treatment plan and approved an increase in her prescription for pain relief from 60 mg of MS Contin to be taken every 8 - 12 hours as needed for pain to 100 mg of MS Contin to be taken every 8 - 12 hours as needed for pain. Ms. Glitsch was advised that she should take the increased dosage only every 12 hours for the first couple of days and then increase to every 8 hours. (HLAI 0096-0097.)

Two days before her death, Ms. Glitsch was again seen at Advanced Pain Medicine on November 13, 2006, by Melissa Moon, D.O., who increased Ms. Glitsch's prescription to 200 mg MS Contin to be taken every 12 hours. At this visit, Dr. LoDico prescribed Ms. Glitsch sixty (60) 200 mg tablets of MS Contin tablets. However, the pharmacy filled Ms. Glitsch's prescription with one hundred twenty (120) 100 mg tablets of MS Contin.

On the late afternoon of November 15, 2006, Ronald Dalessendro, the fiancé of Ms. Glitsch, discovered her unresponsive at her home. The police and an ambulance were summoned, and Ms. Glitsch was pronounced dead at the scene. Ms. Glitsch was 51 years of age on the date of her death.

James W. Smith, M.D., Coroner of Beaver County, performed an autopsy on Ms. Glitsch. Dr. Smith determined that the cause of her death was accidental morphine intoxication. The toxicology portion of the autopsy was performed by Charles L. Winek, Ph.D., who found that Ms. Glitsch's morphine level was 495 ng/ml. Dr. Winek indicated that a therapeutic level would have been 100 ng/ml. (HLAI 0029.)

B. The Policy

The Policy at issue provides that Hartford has "full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and provisions of this Policy." (HLAI 0006.) Pursuant to the terms of the Policy, benefits are payable if a covered person's injury results in loss of life within 365 days of the accident. The Policy defines "Injury" as a "bodily injury resulting directly from accident and independently of all other causes which occurs while the Covered Person is covered under the policy." (HLAI 0010.)

A specific exclusion of the Policy includes: "injury sustained while voluntarily taking drugs which federal law prohibits dispensing without a prescription, including sedatives, narcotics, barbituates, amphetamines, or hallucinogens, unless the drug is taken as prescribed or administered by a licensed physician." (HLAI 0011.) The Policy specifically provides that, if a claim is denied, a claimant or his representative "must appeal once to [Hartford] for a full and fair review," and, [a]s part of [the] review . . . [the claimant] may request, free of charge, copies of all documents, records, and other information relevant to [the] claim." (HLAI 0026.)

C. The Benefit Claim and Appeal

Matthew Fabyanic ("Fabyanic"), decedent's son and the Administrator of the Estate of Nancy Glitsch, deceased, filed a written claim for Accidental Death benefits under the Policy on March 6, 2007. Fabyanic identified "Dr. Moon (pain management) and Dr. Gruen (orthopedic surgeon)" as the "doctors who treated deceased between date of accident and date of death." (HCAI 0049.)

As part of the Hartford review process, Hartford obtained Ms. Glitsch's medical and prescription history for the period January 2006 through November 2006, as well as the dosage of prescribed medications and pharmacies where these prescribed medications were filled. Additionally, in order to determine the therapeutic prescription levels, on August 7, 2007, the claim file along with prescription history was referred by Hartford to Nurse Consultant Kathleen M. Bell, RN, BSN, HCRM, CCM, CLNC, CDMS (HLAI 0023, 0184.) Ms. Bell utilized two references in determining the therapeutic and toxic or lethal levels of blood morphine: (1) "Drug & Chemical Blood - Level Data 2004" by Charles L. Winek, Ph.D.; and (2) "Disposition of Toxic Drugs & Chemicals in Man", 7th Ed.., by Randall C. Baselt, Ph.D. Ms. Bell used the Winek reference to determine the therapeutic level of morphine and the Baselt reference to determine the toxic or lethal range of morphine. (HLAI 0169-170.)

Ms. Bell also investigated other possible causes of Ms. Glitsch's elevated morphine levels, such as impaired liver or kidney function. (HLAI 0171.) The autopsy report stated that Ms. Glitsch's liver and kidneys were healthy. Accordingly, Ms. Bell determined that "liver or kidney disease did not factor into elevating [Ms. Glitsch's] Morphine Blood Level." (HLAI 0032.)

Ms. Bell determined that Ms. Glitsch did not take the MS Contin "as prescribed" based upon her conclusions that (1) the "therapeutic level" for morphine in the blood is 100 ng/ml; (2) the "lethal level" for morphine in the blood is 200 ng/ml, and (3) Ms. Glitsch had a blood level for morphine of 495 ng/ml at autopsy, which was "almost five (5) times the limit for the therapeutic range." (HLAI 0184.)

By letter dated September 25, 2007, Tracy Arzt, Sr. Claims Examiner at Hartford, informed Fabyanic that no benefits were payable under the terms of the Policy. Hartford explained that because the "Toxicology Report indicates a Morphine level of 495 ng/ml, which exceeded the therapeutic level and was in the lethal range, it is evident that her loss (sic) was the result of influence of drugs not taken as prescribed by a physician and she did not suffer a Bodily Injury independent of all other causes; therefore, her death does not constitute a covered loss under the terms of the policy and no Accidental Death Benefits are payable." (HLAI 0185.) Ms. Arzt advised that the decision to deny the claim for benefits was based upon Policy language and all documents contained in the claim file, including the following specific information:

1. The Proof of Loss - Accidental Death claim form submitted by Fabyanic dated March 6, 2007;

2. Commonwealth of Pennsylvania Police Crash Reporting form dated March 16, 2006;

3. Certified Death Certificate from the Commonwealth of Pennsylvania;

4. Autopsy Report dated November 16, 2006;

5. Toxicological Laboratory Report;

6. Prescription history ...

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