United States District Court, N.D. Illinois, Eastern Division
September 16, 2005.
JUDY DELATORRE, Plaintiff,
MINNESOTA LIFE, a Minnesota Mutual Company, Defendants.
The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM AND ORDER
On April 22, 2004, plaintiff Judy DeLaTorre filed a complaint
against Minnesota Life Insurance Co. ("defendant"), the issuer of
an accidental death insurance policy for her and her deceased
husband, Sergio DeLaTorre ("DeLaTorre"), alleging breach of
contract for failure to pay insurance benefits. Before the court
is defendant's motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56(c). For the following reasons, the
court grants defendant's motion.
On or about April 20, 2000, defendant issued a certificate for
accidental death coverage ("the Policy") to Sergio DeLaTorre and
plaintiff Judy DeLaTorre. The relevant Policy language provides:
Death by accidental injury as used in this
certificate means that your death results, directly
and independently . . . from an accidental injury
which was unintended, unexpected, and unforeseen. . . .
In no event will we pay the accidental death
benefit if your death results from or is caused
directly by any of the following: . . . (2) your commission of a
On May 19, 2003, DeLaTorre died from injuries sustained when
the automobile he was driving collided head on with a light post.
The medical examiner's death certificate indicates the cause of
death was multiple injuries as a result of an automobile
On or about June 2, 2003, plaintiff submitted a claim for
accidental death benefits. In response, the defendant requested
and received DeLaTorre's driving record, which showed that
DeLaTorre had been convicted of driving under the influence on
October 7, 1991, May 23, 1993, May 26, 2002, and charged with
driving under the influence on April 29, 2003. Moreover, his
driver's license had been revoked on three occasions. The
defendant also requested and received a toxicology
analysis*fn1 performed by the Office of the Medical
Examiner, Cook County, Illinois, which indicated that, at the
time of his death, DeLaTorre's blood was positive for alcohol
at.23mg/dl and for morphine at .293mg/dl.
Dr. Tae Lyong An is a pathologist and the Assistant Medical
Examiner for Cook County. Dr. An's duties include examining
bodies and determining the cause and manner of death. Dr. An has
no training as an accident reconstructionist or engineer, nor is
he a toxicologist. In his role as a pathologist, however, Dr. An
testified during his deposition for the instant case that the
effects of a blood alcohol level of .23mg/dl, as is DeLaTorre's
case, include impaired judgment, impaired visual acuity and
delayed reaction time, and that a morphine level of .293mg/dl can
cause impaired judgment and muscular coordination, dizziness,
drowsiness, hypotension, respiratory compression, coma, and
death. Dr. An further testified that the cause of the accident was alcohol and morphine intoxication.
Regarding the toxicology report, Dr. An testified that
toxicology reports can take a few weeks to be completed. Dr. An
testified that he believed that all policies and procedures were
followed in the completion of the toxicology report, and that the
toxicology report was a true and accurate report of the blood and
urine samples taken from DeLaTorre. Moreover, he stated that he
had no reason to believe that the analysis had not been properly
After receiving DeLaTorre's driving history and a copy of the
toxicology report, the defendant denied benefits, stating that
DeLaTorre's death was foreseeable and thus failed to satisfy the
Policy's definition of an accident. Furthermore, the defendant
denied coverage on the basis that both DeLaTorre's toxicology
report and driving record evidenced the commission of a felony
and thereby voided the defendant's contractual obligation to pay
Although the court finds that under Illinois law, DeLaTorre's
death would not be considered foreseeable, the court concludes
that the death resulted from or was directly caused by a felony.
Accordingly, because the court finds that the felony exclusion
applies, defendant's motion for summary judgment is granted.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue
of material fact exists only if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
existence of a factual dispute is not sufficient to defeat a
summary judgment motion, instead the non-moving party must
present definite, competent evidence to rebut the movant's
asserted facts. Butts v. Aurora Health Care, Inc.,
387 F.3d 921, 924 (7th Cir. 2004).
A. Foreseeable and Accidental
The defendant first argues that accidental death benefits are
not payable because DeLaTorre's death was foreseeable and
therefore not an accident. As to whether the death was
accidental, Illinois maintains a liberal attitude in its
interpretation of "accident" as it pertains to insurance
policies. Specifically, the Illinois Supreme Court has stated
that accidental means is synonymous with accidental result and
has defined an accident as "something which happens by chance or
fortuitously, without intention or design, and which is
unexpected, unusual and unforeseen." Taylor v. John Hancock
Mutual Life Ins. Co., 142 N.E.2d 5, 6 (Ill. 1957) (holding
arsonist's death in fire an accident for insurance purposes since
arsonist did not intend fire to start when it did); see also
Lyons v. State Farm Fire and Casualty Co., 811 N.E.2d 718 (Ill.
App. Ct. 2004) ("If an act is performed with the intention of
accomplishing a certain result, and . . . another result,
unintended and unexpected occurs, . . . such unintended result is
deemed to be caused by accidental means."); Russell v. Metro.
Life Ins. Co., 439 N.E.2d 89, 91 (Ill.App. Ct. 1982); Arnold
v. Metro. Life Ins. Co., 970 F.2d 360, 362 (7th Cir. 1992).
Thus, under Illinois law, an injury may be an accident only
when it is unintended. Because DeLaTorre died as a result of
injuries incurred after an automobile accident, and neither party alleges that DeLaTorre intended the accident or his
injuries, DeLaTorre's death is properly characterized as an
accident under Illinois law.
The defendant argues that DeLaTorre's death cannot be an
accident because he intentionally used dangerous amounts of
alcohol and morphine. However, under Illinois law, a death can be
accidental even though the means of destruction is intentional.
Marsh v. Metropolitan Life Ins. Co., 388 N.E.2d 1121, 1123
(Ill.App. Ct. 1979) (holding an insured's unintentional death by
heroin overdose, as it pertained to his insurance policy, an
accident as a matter of law because although the means of his
destruction, the injection of heroin, was intentional, the
resultant death therefrom was unintentional and therefore
In the instant case, although DeLaTorre used large quantities
of alcohol and morphine, there is no indication, nor does the
defendant assert, that DeLaTorre intended the resulting death.
Absent evidence of such intent, his death remains an accident.
Id. at 1125; See also Russell, 439 N.E.2d at 90-91;
Harrington v. New England Mut. Life Ins. Co., 873 F.2d 166, 169
(7th Cir. 1989) ([T]here is no evidence that he intended to kill
himself as a result of his actions, and therefore his death was
accidental. . . .").
Similarly, the defendant contends that, because DeLaTorre was
driving under the influence of high amounts of alcohol and
morphine, an automobile accident, and the subsequent death from
resulting injuries, are entirely foreseeable. However, Illinois
courts maintain a high standard for foreseeability in insurance
cases a standard significantly greater than the corresponding
standards for criminal or negligence cases. Marsh,
388 N.E.2d at 1123 ("[N]either the level of foreseeability requisite for
tort liability nor the level requisite for criminal recklessness
is sufficient to render a mishap a `nonaccident' when conduct is
measured against the terms of insurance coverage for accidental injury.").
Under Marsh, the test for foreseeability is "a contingency
known to all sensible men as likely to follow as a natural result
of one's conduct" or, restated, "a contingency which any man with
ordinary intelligence and prudence . . . could have reasonably
foreseen." Id. At least one Illinois court interpreting this
standard has found an alcoholic's death unforeseeable despite his
having been found dead, lying next to a bottle of vodka, with a
lethal blood alcohol level. Russell v. Metropolitan Life Ins.
Co, 439 N.E.2d 89, 93 (Ill.App. Ct. 1982). In Russell, the
court stated that "we can only conclude that where, as here, the
death was no more to be anticipated than in Taylor, . . . the
death was unforeseeable as a matter of law." Id.*fn2
Accordingly, under this liberal standard, the court concludes
that DeLaTorre's death was also unforeseeable. If, under Illinois
law, an alcoholic's death from the overingestion of alcohol is
not foreseeable, then the more attenuated circumstances here
(i.e., death from an automobile accident rather than from his
intended use of alcohol and morphine) also do not satisfy the
test for foreseeability. In other words, applying the standard
articulated in Russell, the court finds in this case that
DeLaTorre's death resulting from an automobile accident while
under the influence of alcohol and morphine was not any more
anticipated than the death in Taylor.
The court notes that the defendant relies almost totally on
federal common law under the Employee Retirement Income Security
Act of 1974 ("ERISA"), 28 U.S.C. § 1001 et seq., and
non-Illinois law in support of its arguments that the accident
was foreseeable and not an accident.*fn3 However, the defendant removed this action
based on diversity of citizenship between the parties under
28 U.S.C. § 1332. In a diversity case, the court generally will
apply the substantive law of the state in which it sits, which in
this case is Illinois. Schmitz v. Campbell Mithun, Inc.,
124 F.R.D. 189, 192 (N.D. Ill. 1989) ("[I]n diversity cases, except
in matters governed by the federal constitution or by acts of
congress, the law to be applied is the law of the state.").
Defendant does not assert that the Policy is governed by
ERISA.*fn4 Accordingly, the court has applied Illinois law.
B. Caused by the Commission of a Felony
The Policy states that benefits will not be paid if "death
results from or is caused by . . . [the insured's] commission of
a felony." Relying on Dr. An, the pathologist who examined
DeLaTorre's body, and a toxicology report, the defendant contends
that DeLaTorre's driving under the influence of alcohol
constituted a felony, thus voiding any obligation to pay
benefits. Plaintiff does not challenge the defendant's position
that DeLaTorre's driving under the influence in this circumstance
would constitute a felony. Rather, the plaintiff challenges the
admissibility of the toxicology report and the testimony of Dr.
Before addressing these arguments, the court notes that the
plaintiff's arguments regarding the admissibility of the evidence
are difficult to decipher, which is due in part to the fact that
she has cited to virtually no authority in support of her
arguments other than a passing reference to the Federal Rules of
Evidence. It is not this court's role to make parties' arguments
for them and the plaintiff's complete failure to offer support
for her arguments provides a ground for finding that the
plaintiff has waived these arguments. Volvosek v. Wisconsin
Dep't of Agr. Trade & Consumer Prot., 344 F.3d 680, 689 n. 6
(7th Cir. 2003) (complete absence of legal argument waives
consideration of claim). However, in the interests of providing a
ruling on the merits, the court will address her arguments as it
has construed them to the best of its ability.
The plaintiff first argues that the defendant has not provided
a foundation for the admission of the toxicology report given
that defendant has not shown a chain of custody with respect to
the blood sample taken from DeLaTorre. Fed.R.Evid. 901(a)
states that "[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponents claim."*fn5 Under
Rule 901(b)(1), a party may authenticate a matter through the
testimony of a witness who has knowledge that the matter is what
its proponents claim it to be. "In proving a chain of custody,
the proponent of an item of evidence shows that it was
continuously in the safekeeping of one or more specific
persons. . . . "Wright and Gold, Federal Practice and Procedure,
Evidence § 7106 at 49 (West 2000). "It is usually unnecessary to
establish a perfect or unbroken chain of custody." Id. at 51.
Rule 901(a)'s standard of "sufficient to support a finding" is a
minimal one and thus "courts commonly tolerate gaps in the chain
that might present some limited opportunity for tampering with
the evidence." Id.
In the instant case, Dr. An, a Cook County assistant medical
examiner, testified that he is board certified in pathology and
forensic pathology. Dr. An testified that DeLaTorre died on May
19, 2003, and that he took a blood and urine sample from the
decedent on May 20, 2003, during the postmortem examination of
DeLaTorre. According to Dr. An, he took the samples, labeled them
in specimen jars, and put them on a tray. Dr. An then testified
that a technician "would put it in the dumbwaiter that goes
directly to the toxicology [lab] and they check every bottle and
request report." Dr. An further testified that he had no reason
to believe that: (1) there was a misfiling or mislabeling of the
blood sample; or (2) the toxicology report upon which defendant
relies is not a true and accurate report of the blood and urine
samples that he extracted on May 20, 2003.
While plaintiff challenges the chain of custody, based in part
on the fact that the test was not performed until 7 weeks after the blood was drawn, she fails
to point to any evidence sufficient to create a genuine issue of
material fact that the blood sample on which the report is based
is not DeLaTorre's. Accordingly, the court finds this evidence
meets the minimal standard under Rule 901 that the toxicology
report is authentic, i.e., that it is based on DeLaTorre's blood
sample. Cooper v. Eagle River Mem'l Hosp., Inc., 270 F.3d 456,
463 (7th Cir. 2001) (an uninterrupted chain of custody is not a
prerequisite to admissibility).
Plaintiff also argues that the report is hearsay. However,
Fed.R.Evid. 803(8)(C) creates an exception to the inadmissibility of
hearsay for factual findings from an investigation made pursuant
to authority granted by law, unless the sources of information
lack trustworthiness. Fed.R.Evid. 803(8)(C). Dr. An testified
that the toxicology report was prepared as part of the Cook
County medical examiner's investigation and therefore qualifies
for admission under the public records exception within
Fed.R.Evid. 803(8)(C), provided that it meet the requisite standard for
Courts look to four possible criteria to evaluate the
trustworthiness of proffered evidence: "the timeliness of the
investigation, the special skill or experience of the official,
whether a hearing was held, and possible motivational problems."
Klein v. Vanek, 86 F. Supp.2d 812, 820 (N.D. Ill. 2000)
(citing Miller v. Field, 35 F.3d 1088, 1090 (6th Cir. 1994)).
Plaintiff has the burden of showing that the report is
As to the timeliness, the court has concluded that the
toxicology report fulfills the requirement for authenticity
despite the time lag in producing the report. Dr. An testified
that to his knowledge the blood test was performed by the
toxicology lab in the Cook County medical examiner's office and
plaintiff has pointed to no evidence rebutting this assertion or
that there was any concern as to the laboratory's motivation. Indeed, the
plaintiff has pointed to no evidence at all in support of her
claim that the report is untrustworthy and thus has failed to
meet her burden. Accordingly, the court finds that the toxicology
report is admissible under Fed.R.Evid. 803(8)(C).
The plaintiff also challenges the testimony by Dr. An under
Fed.R.Evid. 702. Specifically, the plaintiff contends that
because Dr. An "has no training in accident reconstruction nor
does he have any engineering background," that his opinion fails
to meet the requirements of Rule 702. The plaintiff also claims
that "there is no showing [Dr. An's] testimony is based on
sufficient data or that it is the product of reliable methods
when he has no knowledge as to how the toxicology test was
performed." The court notes that the plaintiff does not even
bother to state what the "requirements of Rule 702" are or cite
to any authority in support of this argument.
Rule 702 allows for an individual to testify as an expert
provided that the person: (1) is qualified as an expert; (2)
provides testimony that will assist the jury; and (3) relies on
evidence on which a reasonable expert in the field would rely.
The Court has broad latitude to decide how to determine
reliability. Kumho Tire Company, Limited v. Carmichael,
526 U.S. 137, 141-42 (1999).
As to the first prong, Dr. An's qualifications are as follows:
he graduated from medical school in Korea in 1962 and was in the
Korean Army for four years as a medical officer; upon coming to
Chicago, he had a one-year internship at St. Joseph Hospital in
Chicago; he spent four years training as a pathologist at Cook
County Hospital in forensic pathology; he has been employed as an
assistant medical examiner in Cook County since 1973 (over 30
years' experience); and he is board certified in pathology and forensic
pathology. The court finds that based on this evidence, Dr. An is
qualified to testify based on his medical knowledge of the
effects of alcohol and morphine on the human body.
Further, the court finds that Dr. An's testimony could assist a
trier of fact regarding the cause of the accident. Finally, in
reaching his conclusion that DeLaTorre's death was caused by his
intoxication, Dr. An relied upon the toxicology report, which
this court has held to be admissible and which reliance was
entirely reasonable under the circumstances. Ultimately, "it is
the Court's task to ensure that expert testimony is both reliable
and relevant." U.S. v. Caputo, No. 03-CR-0126, 2005 WL 1503423,
at *5 (N.D. Ill. June 16, 2005) (citing Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 597 (1993)). Based on its analysis
of the Rule 702 requirements, the court concludes that Dr. An's
testimony is both reliable and relevant.
The plaintiff's rather convoluted final argument is also
unavailing. Pared down, the plaintiff's argument appears to be
that somehow the policy is ambiguous because DeLaTorre's death
did not result from intoxication, but rather from multiple and
severe injuries. In support, the plaintiff relies on Dr. An's
postmortem results which conclude that DeLaTorre's death was
related to multiple injuries which occurred in the automobile
accident. However, Dr. An testified that the cause of the
accident was alcohol and morphine intoxication. Thus, as
discussed below, the accident resulted from or was caused
directly by the commission of a felony, and DeLaTorre died as a
result of the accident. The plaintiff's attempt to create
ambiguity where none exists is not well-taken.
The court comes, then, to the defendant's contention that
DeLaTorre's death resulted from or was caused by a felony.
Pursuant to the Illinois Vehicle Code ("Code"), a "person shall not drive or be in actual physical control of any vehicle within
this State" while the alcohol concentration in one's blood is
0.08 grams of alcohol per 100 milliliters (mg/dl) of blood.
625 ILCS 5/11-501(a)(1) (West 2002). The toxicology report reveals
that DeLaTorre's blood-alcohol level at his death was .23mg/dl,
nearly three times the legal limit. Thus, DeLaTorre was driving
under the influence, which in and of itself is a misdemeanor.
625 ILCS 5/11-501(c) (2002).
The defendant contends that DeLaTorre's driving record
indicates that he was convicted of driving under the influence of
alcohol three times within a period of less then twenty years.
This fact is undisputed. The defendant goes on to point out that
"anyone who is convicted of driving under the influence of
alcohol three times within twenty years is guilty of a class 4
felony" citing to 625 ILCS 5/11-501(c-4) (3) (2002).*fn6
As discussed above, the court has already concluded that the
toxicology report and Dr. An's testimony that the cause of the
accident was due to DeLaTorre's intoxication are admissible
evidence. Further, the plaintiff has failed to create a genuine
issue of material fact that DeLaTorre's death was not the result of the intoxication. The
court concludes that a trier of fact could find that DeLaTorre's
death, his having been driving under the influence at least the
third time within a period of less then twenty years, resulted
from or was caused by the commission of a felony.
For the reasons stated above, defendant's motion for summary
judgment is granted.
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