The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiff seeks insured's death benefit which Defendant insurer denied pursuant to an intoxication exclusion contained in the accidental death insurance policy. Both parties now move for summary judgment.
Summary judgment should be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits" indicate 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). With cross-motions, I construe all inferences in favor of the party against whom the motion under consideration is made. Tegtmeier v. Midwest Operating Eng'rs Pension Trust Fund, 390 F.3d 1040, 1045 (7th Cir.2004) (citation and quotation omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
III. STATEMENT OF RELEVANT FACTS
On November 20, 2003, emergency responders found William Cabernoch in the passenger seat of a burning automobile parked in front of his home, a slack, unfastened seatbelt draped over his shoulder. He was removed from the vehicle and taken to the hospital where he was treated for burns and inhalation injuries. He died on December 4, 2003. According to the Medical Examiner's report, Cabernoch's blood alcohol level upon admission to the hospital was 0.316, nearly four times the legal limit in Illinois, howeverit was not listed as the cause of death. The cause of the fire has never been discovered.
The attending hospital physician, Dr. Michael Smock, noted that Cabernoch's facial burns were not deep enough to have caused unconsciousness, immobility or incapacitation. Head or body trauma, which might have caused inability to move, was absent. The burns were not consistent with an explosion, so Dr. Smock believed a sudden catastrophic event had not occurred. The physician opined that a person who had passed out from intoxication would be slower in sensing the heat of a fire and would have diminished judgment and physical motor skills. Incapacitation from inhalation injuries would not have occurred quickly, it would have been a matter of minutes, rather than seconds.
Dr. Smock agreed with the Medical Examiner's conclusion that acute alcohol intoxication contributed to Cabernoch's death. Dr. Mary Case, the examiner, also concluded that Cabernoch was so intoxicated that he probably was unable to exit. She said that a .316 blood alcohol level was extremely high and would markedly impair his ability to perceive danger and to take appropriate action to avoid it. She thought that even if he had seen the threat, it would have been very difficult for him to get out.
Cabernoch's treating physician thought that the facial burns would not have rendered him unconscious and noted that there was no head trauma (because there was no skull fracture or intra-cranial bleeding). Neither was there evidence of a muscle injury or spinal injury that would have disabled his ability to leave his seat in the vehicle.
Police investigators discovered a witness who had seen Cabernoch at the American Legion Hall before the car fire. The witness said Cabernoch was "pretty drunk." In her deposition, the bartender on duty that evening testified that Cabernoch was at the hall for ninety minutes to two hours and consumed two beers and at least three to four shots of whisky. She saw Cabernoch stagger sideways when he got up to leave. He refused her offer for a ride home.
The state fire marshal's investigator told the police that he believed the fire started in the engine compartment because of the damage in that compartment and the burn pattern that showed movement from the compartment to the rest of the vehicle. The investigator had never heard of a case in which a "fire ball" or wall of fire suddenly entered the passenger compartment from the engine.
Defense expert, Dr. Michael Evans, president and chief executive officer of the American Institute of Toxicology Laboratories, opined that Cabernoch's failure to exit the automobile after the start of the fire was due to his intoxication.*fn1
At the time of his death, Cabernoch had a valid accidental death policy through Defendant Union Labor Life Insurance Company ("Union Labor"), which he had purchased in 1994 after receiving a direct mail solicitation. As a member of the International Brotherhood of Electrical Workers ("IBEW"), Cabernoch was eligible for this policy, which was the result of IBEW's 1993 subscription to a Master Agreement between Union Privilege Trust ("Union Privilege"), Union Labor Life Insurance Company ("ULLIC"), and Unioncare. Upon Cabernoch's death, the beneficiaries of his accidental death plan made a claim for benefits. On May 24, 2004, Defendant Union Labor Life denied payment of benefits pursuant to a policy ...