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September 16, 2005.

MINNESOTA LIFE, a Minnesota Mutual Company, Defendants.

The opinion of the court was delivered by: BLANCHE MANNING, District Judge


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 felony.
  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 accident.

  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 Moreover, his driver's license had been revoked on three occasions.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 conducted.

  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 benefits.

  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.


  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 ...

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