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Yasko v. Reliance Std. Life Ins. Co.

United States District Court, N.D. Illinois, Eastern Division

June 30, 2014

LAURA YASKO, o/b/o ALAN YASKO, M.D., Plaintiff,

For Laura Yasko, on behalf of Alan Yasko, Plaintiff: Mark D. DeBofsky, LEAD ATTORNEY, Daley, DeBofsky & Bryant, Chicago, IL; Robert J. Napleton, Motherway & Napleton, LLP, Chicago, IL.

For Reliance Standard Life Insurance Company, Defendant: Edna Sybil Kersting, Jason Michael Kuzniar, LEAD ATTORNEYS, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Chicago, IL.

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John J. Tharp, Jr., United States District Judge.

Laura Yasko has sued Reliance Standard Life Insurance Company (" Reliance" ) to recover accidental death benefits from an insurance policy issued to her husband, Dr. Alan Yasko. On August 19, 2010, Dr. Yasko died of a pulmonary embolism after traveling by air from Chicago to Mexico. Reliance denied Ms. Yasko's claim for accidental death benefits as well as an appeal of that decision in 2011. Ms. Yasko then brought suit in federal court under the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § § 1132(e)(1) and 1132(f). Reliance has moved for summary judgment. For the reasons stated below, the Court denies the motion.


The facts set forth below are taken from the parties' Local Rule 56.1(a) & (b) statements of material fact (referred to herein as " Def. 56.1" (Dkt. 39), " Pl. 56.1" (Dkt. 42), and " Pl. 56.1 Resp." (Dkt. 42)) and exhibits, including the administrative record. The facts are largely undisputed; the material disputes are specifically identified in the discussion below.

A. Dr. Yasko's Group Accident Policy

Dr. Alan Yasko was employed by Northwestern University as a professor and surgeon specializing in orthopedic surgery and musculoskeletal oncology. Pl. 56.1 Resp. ¶ 6; Compl. (Dkt. 1) ¶ 8. As part of that employment, Dr. Yasko participated in Northwestern University's employee group accident policy (Group Policy No. VAR 202958), which " insures against certain accidental losses as described" in the Policy. Pl. 56.1 Resp. ¶ 6; AR 1. The Policy contains the following relevant provisions:

Definitions ... " Injury" means accidental bodily injury to an Insured which is caused directly by accidental means and which occurs while the Insured's coverage under this Policy is in force. [AR 10]
Accidental Death and Dismemberment Benefit; Description of Coverage; Loss of Life, Limb, Sight, Speech or Hearing: If, due to Injury, an Insured suffers any one of the following specific Losses within 365 days from the date of the accident

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we will pay the Benefit Amount listed below ... Loss of Life: the Insured's Principal Sum. [AR 22]
" Loss(es)" must result directly and independently from Injury, with no other contributing cause. [AR 22]
Coverage of Exposure and Disappearance; Description of Coverage; Exposure: Any loss that is due to exposure will be covered as if it were due to Injury, provided such loss results directly and independently of all other causes from accidental exposure to the elements which occurs while the Insured's coverage under this Policy is in force. [AR 24]
Exclusions; This Policy does not cover any loss: (1) to which sickness, disease, or myocardial infarction, including medical or surgical treatment thereof, is a contributing factor. [AR 32]

B. Dr. Yasko's Surgery

On February 23, 2010, approximately six months before he died, Dr. Yasko underwent a CT scan of his abdomen, pelvis, and chest at Northwestern Memorial Hospital in Chicago. AR 555. The chest scan showed a " well defined lobulated mass in the superior segment left lower lobe." Id. The radiologist who reviewed the chest scan reported that " primary consideration would be a carcinoid tumor." [1] Id. at 556. On March 9, 2010, Dr. Yasko underwent a biopsy at the University of Texas M.D. Anderson Cancer Center. Id. at 202. The pre-biopsy diagnosis was " left lung mass" and the post-biopsy diagnosis was " left lung mass with endobronchial component." Id. A March 22, 2010, radiology report stated that Dr. Yasko was " recently diagnosed [with] carcinoid tumor of the left lower lobe, staging exam to evaluate for metastatic disease." [2] Id. at 180. The report added that a " lobulated mass measuring approximately 4.4 x 3.4 cm is identified." Id. The report continued, " Overall, there are no sites of abnormal metabolic activity to suggest active metastatic disease." Id. The report concluded that " a medial left lower lobe mass representing known carcinoid tumor demonstrates relatively mild abnormal metabolic activity" and further concluded that there was " [n]o evidence of metastatic disease." Id.

On March 23, 2010, Dr. Yasko underwent surgery--a left thoracotomy, lower lobe sleeve lobotomy, and mediastinal lymph node dissection--at the M.D. Anderson Cancer Center. Id. at 582. The preoperative diagnosis was a " left lower lobe carcinoid" and the postoperative diagnosis was the same. Id. There were no complications during the surgery. Id. at 584. A clinical note reports that " The surgical pathology revealed a 7.0 x 4.5 x 2.5 cm well-differentiated neuroendocrine carcinoma [3] (carcinoid tumor) ... 1/13 lymph nodes were positive for metastasis." Id. at 192. Reliance points to this clinical note as evidence that Dr. Yasko was " diagnosed with T2 lung cancer." Def. 56.1 ¶ 15. Ms. Yasko denies this conclusion, asserting instead that the " impression"

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was a carcinoid tumor and that the clinical note did not include a diagnosis for " T2 lung cancer." Pl. 56.1 Resp. ¶ 15.

A discharge summary states:

Prognosis: The patient has an excellent prognosis for satisfactory convalescence after discharge ... The patient was instructed to follow up in the Thoracic Surgery Outpatient Clinic ... 4 weeks after discharge. At that point, [the physician] will obtain a new chest x-ray posterior, anterior, and lateral. [AR 194]

A social work note reports:

Patient states that upon hearing his cancer diagnosis, " it was a rough week." Wife admits that patient's professional role as a cancer surgeon makes patient/wife feel at times that they know too much. Wife states that since surgery, they feel more relieved as they have a better understanding of what patient is facing. [Patient/wife] plan to reveal patient's cancer diagnosis to the[ir] children later today now that they have more information about the diagnosis/prognosis.

AR 196.

Four weeks after the surgery, Dr. Yasko was examined again at M.D. Andersen. A report from that visit, on April 23, 2010, states:

We would like to continue surveillance. He will return in 6 months with a CT chest. At his 1 year anniversary, he will undergo a fiberoptic bronchoscopy to evaluate the anastomosis. [Dr. Yasko] has been encouraged to continue to increase his activity levels ... He is to contact me should he have any difficulties in the interim.

Id. at 192-93.

C. Dr. Yasko's Death

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