United States District Court, M.D. Pennsylvania
RONALD E. LONG, Plaintiff,
HARTFORD LIFE AND ACCIDENT INSURANCE CO., Defendant.
Matthew W. Brann, United States District Judge.
Hartford Life and Accident Insurance Company moved for
summary judgment on both counts of Ronald E. Long's
complaint. It also moved to strike an affidavit submitted by
Mr. Long in opposition to summary judgment. For the reasons
that follow, Hartford's motion for summary judgment will
be denied in part and granted in part, and its motion to
strike will be denied.
February 20, 2013, Mr. Long's severely infected left foot
was amputated at the Williamsport Hospital. At that time, he
was insured under an accidental death and dismemberment
policy issued by Hartford, which promised certain benefits
if, inter alia, he suffered an “injury”
that “result[ed] in” the “loss of . . .
either . . . foot.” Alleging that his amputation was
covered by the policy, Mr. Long submitted a timely claim for
benefits. Hartford believed the amputation was not
covered, and denied the claim. Consequently, Mr. Long sued
Hartford for breach of contract and bad faith.
Mr. Long's Medical History and Accident
Long was diagnosed with diabetes in 1974. Throughout the
years he, like many diabetics, had recurring problems with
his feet, including neuropathy and frequent, slow-healing
wounds. As a result, he had regular visits with
his podiatrist, Dr. Schlorff, who would treat, and oversee
the healing of, Mr. Long's podiatric
wounds. At the time underlying the events of this
case, in fact, Dr. Schlorff had been treating a large
diabetic ulcer on the bottom of Mr. Long's left foot,
near his toes.
Long testified in deposition that, in early February 2013, he
injured himself after slipping and falling on some
rocks. As will be discussed below, there is some
dispute as to the exact location of this injury.
Nevertheless, as a result of it, Mr. Long called into Dr.
Schlorff's office and was prescribed an antibiotic over
antibiotics apparently did not help, so several days later,
on February 12, 2013, Mr. Long saw Dr. Schlorff in person.
The records from that visit indicate that there was a
“blister, ” or “abscess formation, ”
on the “medial aspect of [Mr. Long's] left
arch” with “positive signs of system infection
beyond the area of chief complaint.” The records do not
mention any accidental injury. Because of the severity of the
infection, Dr. Schlorff suggested that Mr. Long seek
treatment at the Williamsport Hospital.
Long went to the emergency room that same day. The intake
records from the ER, as well as the ER doctors' reports,
list Mr. Long's malady as a “diabetic
ulcer.” Like Dr. Schlorff's report, none of
them mention any accidental injury, and, in fact, one
indicates that Mr. Long “denie[d] any trauma to th[e]
area” of the wound. These reports, however, do
distinguish between the infection on Mr. Long's arch and
the ulcer near his toes.
next day, February 13, 2013, Mr. Long saw a Dr. Sajja, whose
report indicated that Mr. Long was “hospitalized with
[a] severe left diabetic foot infection.” The hospital
treated the foot for several days, to no avail,
and on February 20, 2013, Dr. Sajja amputated it. That
doctor's “Operative Report” lists the
preoperative and postoperative diagnoses as “[s]evere
left diabetic foot infection.”
the surgery, Mr. Long was admitted to a rehabilitation
center, from which he was released on March 1, 2013. His
“Discharge Summary” from the center claims that
his amputation was due to an “infected left diabetic
The Policy and Mr. Long's Claim Under It
noted above, Mr. Long could recover under the accidental
death and dismemberment policy if an “injury result[ed]
in” a lost foot. The policy defined
“injury” as “bodily injury resulting
directly from accident, and independently of all other
causes, ” and noted that “loss resulting from . .
. sickness or disease” was “not considered as
resulting from injury.” The policy, however, excluded
“a pus-forming infection which occurs through an
accidental would” from this “sickness or
February 11, 2014, Mr. Long submitted a claim for recovery
under this provision. His “Statement of Claim”
indicated that his amputation was the result of an
“accident”; specifically, he averred that he had
“injured [the] ankle of [his] left foot” after he
“slipped on rocks while cleaning a stove pipe of
soot.” The attached “Physician's Statement,
” however-which was signed by Dr. Sajja- indicated that
the “injury” at issue was a “left foot
diabetic infection and ulcer.”
first responded to Mr. Long's claim on June 5,
2014. Its letter from that day indicates that
it had reviewed Mr. Long's Statement of Claim and Dr.
Sajja's Physician's Statement, as well as other,
unidentified medical records.Reflected on Mr. Long's
history of diabetes-related foot problems, Hartford noted
that none of the medical records mentioned an
“accidental injury, ” but instead all indicated
that the amputation was the result of a “diabetic foot
infection.”Therefore, because the policy did not
cover “loss resulting from sickness or disease, ”
Hartford denied Mr. Long's claim. Mr. Long
appealed this decision.Hartford decided Mr. Long's appeal
on December 22, 2015. Its letter from that day indicates
that it had conducted a de novo review of the
previously-compiled record, and had also reviewed medical
records submitted on appeal that were not included with the
initial claim. Once again, noting his
“longstanding history of diabetes, ” Hartford
asserted that Mr. Long's medical records consistently
referenced a “diabetic foot ulcer” and failed to
mention any “injury.”Therefore, because Mr.
Long's loss was caused by “a sickness/disease,
” and was “not the result of a bodily injury
resulting directly from accident, ” Hartford upheld the
denial of his claim.
Long initiated the above-captioned action against Hartford by
filing a two-count complaint on January 26,
2016. In Count I, he argued that Hartford
breached its contract with him by failing to pay benefits for
his amputated foot.In Count II, he argued that
Hartford's denial of his claim was in bad faith, in
violation of 42 Pa. C.S. § 8371.
discovery, Hartford moved for summary judgment. Attached to
Hartford's motion was Mr. Long's deposition, in which
he testified that he slipped and fell on some rocks, and
injured “the right ankle of [his] . . . left foot . . .
where the ankle bone sticks out.” In that
deposition, he denied that the injury was to his “left
arch, ” but made it clear that he “understood
[his] arch [as being] on the bottom of the
foot.” When opposing Hartford's motion, Mr.
Long submitted an affidavit stating that he had
“review[ed] photographs” taken of his injury on
the day he went to the hospital, and as a result, realized
that “the injury [he]
. . . was lower than my ankle” and was in fact on
“the middle of [his] foot on the side of the
the summary judgment briefing was complete, Mr. Long moved
for leave to supplement the record with the report of his
expert, Dr. Ajay Rao.Hartford opposed this
motion. Hartford also moved to strike Mr.
Long's affidavit, claiming that its inconsistency with
his earlier deposition meant that it was a sham, created
solely for the purpose of defeating summary
Standard of Review and Burden of Proof
judgment is granted when “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of
law.” A dispute is “genuine if a
reasonable trier-of-fact could find in favor of the
non-movant, ” and “material if it could affect
the outcome of the case.” To defeat a motion for
summary judgment, then, the nonmoving party must point to
evidence in the record that would allow a jury to rule in
that party's favor. When deciding whether to grant
summary judgment, a court should draw all reasonable
inferences in favor of the non-moving party.
breach of insurance contract cases, the insured bears the
burden of establishing that his claim comes within the
policy's coverage. The insurer, however, bears the
burden to show that an insured's claim is barred by some
“exception or exclusion” within the
policy. Here, the parties have not addressed
whether Hartford's denial of Mr. Long's claim was
because his claim fell outside the policy's coverage, or
was because it fell within some exclusion. Because this issue
need not be resolved at this stage, this Court will not
Interpreting the Language of the Contract
Pennsylvania, insurance policies excluding coverage where a
loss is “caused directly or indirectly by
disease” are construed broadly against the
insured, and “there can be no recovery [under such
policies] if pre-existing disease contributed to the
[loss].” In its brief, Hartford cites to this
proposition and numerous cases applying it,  and argues
that, based on the submitted evidence, Mr. Long cannot show
that his diabetes, especially considering its severity, did
not increase his need for amputation in some
policy in this case, however, does not neatly align with the
policies discussed in the cases cited by Hartford. Here, Mr.
Long was entitled to recover if his “[i]njury
result[ed] in [the] loss of . . . either . . .
foot.” The policy, in turn, defined
“injury” as “bodily injury resulting
directly from accident and independently of all other causes
. . . [including] sickness or disease.” Reading this
language all together, it is clear that, while Mr. Long's
injury had to be independent of any “sickness
or disease, ” there is no similar requirement
applicable to his loss. In other words, if Mr.
Long can demonstrate that he suffered some accidental injury,
not caused in any way by his diabetes, which injury
eventually “result[ed] in” his amputation, it is
irrelevant whether or not his diabetes exacerbated the
consequences of his injury such that amputation would not
have occurred but for his medical condition.
Whether Mr. Long Can Prevail on His Breach ...