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06/13/97 JEFFREY LITMAN v. MONUMENTAL LIFE

June 13, 1997

JEFFREY LITMAN, PLAINTIFF-APPELLANT,
v.
MONUMENTAL LIFE INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Lester D. Foreman, Judge Presiding.

Released for Publication July 21, 1997.

Presiding Justice Hartman delivered the opinion of the court. Hoffman and South, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff, Jeffrey Litman, appeals from a summary judgment for defendant, Monumental Life Insurance Company (Monumental). Plaintiff's wife, Lyndie Sue Litman (Lyndie), was insured under an accidental death policy (Policy) issued by Monumental which provided that Monumental will pay a death benefit to the insured's named beneficiary, if: (1) death occurs as a direct result of an injury; and (2) death occurs within 90 days of the accident causing the injury. A "medical treatment" exclusionary clause in the Policy stated that Monumental

"will not pay a benefit for a loss which is caused by, results from, or contributed to by:

***

(5) Sickness or its medical or surgical treatment, including diagnosis."

In June of 1993, Lyndie had surgery for ulcerated colitis; an illeanal anastomosis or "J pouch" was created to avoid the need for an ostomy bag. On Thanksgiving Day, 1994, Lyndie began to experience pain and was taken to the hospital where emergency surgery was performed to remove scar tissue from the previous surgery which had created a bowel obstruction. The scar tissue was removed. Exploratory surgery two days later indicated that a 10 to 12 inch segment of intestine did not have to be removed. Lyndie recovered from her surgeries and returned home five days later.

During the second week of December, 1994, Lyndie's stitches were removed. A few days later, Lyndie began experiencing abdominal pain and was admitted to the hospital. On Wednesday, December 14, 1994, a feeding tube known as a Hickman line was inserted and was x-rayed to insure that it had been positioned properly. On Thursday, the Hickman line was utilized to provide nourishment to Lyndie for her surgery on the following Tuesday.

On the morning of December 20, 1994, Lyndie's third surgery was successful and the blocked segment was removed. Lyndie returned from the recovery room around 3:00 p.m. and was doing fine when plaintiff left at 10:00 p.m. At 7:15 a.m. the next morning, however, plaintiff was notified by the hospital that Lyndie was having a major heart attack. The Hickman line had shifted and pierced through the superior vena cava and perforated the lateral wall of the right atrium, causing cardiac arrest. Fluid from the Hickman line had filled Lyndie's pericardial sac, causing death at 8:00 a.m.

Monumental denied coverage based upon its "medical treatment" exclusionary clause and plaintiff thereafter filed a complaint seeking a declaration that Monumental owed him death benefits as the named beneficiary under the Policy. Following cross-motions for summary judgment, the circuit court granted summary judgment for Monumental, finding that the "medical treatment" exclusionary clause applied to bar coverage. Plaintiff appeals, asserting the court erred in interpreting the accident as a result of medical treatment. Monumental contends the accident that caused Lyndie's death occurred in the course of, and because of, the medical treatment she was undergoing for her bowel obstruction.

A motion for summary judgment will be granted only when the pleadings, depositions, admissions, and affidavits on file, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005 (West 1994). This court reviews summary judgment orders de novo. Continental Casualty Co. v. McDowell & Colantoni, Ltd., 282 Ill. App. 3d 236, 241, 668 N.E.2d 59, 217 Ill. Dec. 874 (1996).

An 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.'" Indiana Insurance Co. v. Hydra Corp., 245 Ill. App. 3d 926, 929, 615 N.E.2d 70, 185 Ill. Dec. 775 (1993), quoting Aetna Casualty & Surety ...


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