Opinion
No. 1:04-cv-3023-GET.
September 12, 2006
ORDER
The above-styled matter is presently before the court on defendant's motion for summary judgment [docket no. 25].
Plaintiff brought this action in the Superior Court of Fulton County, Georgia, to recover benefits under a group accidental death and dismemberment insurance policy, due to the death of her husband, David Gatt. Defendant removed the action to this court pursuant to 28 U.S.C. §§ 1332, 1441, 1446. Defendant now moves for summary judgment on the ground that there is no evidence that Mr. Gatt died as a result of a bodily injury caused by an accident, independent of all other causes, as required for coverage under the provisions of the group policy.
Standard
Courts should grant summary judgment when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must "always bear the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (986). That burden is `discharged by `showing' that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; see also U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991).
Once the movant has met this burden, the opposing party must then present evidence establishing that there is a genuine issue of material fact. Celotex, 477 U.S. at 325. The nonmoving party must go beyond the pleadings and submit evidence such as affidavits, depositions and admissions that are sufficient to demonstrate that if allowed to proceed to trial, a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). If he does so, there is a genuine issue of fact that requires a trial. In making a determination of whether there is a material issue of fact, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255; Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, an issue is not genuine if it is unsupported by evidence or if it is created by evidence that is "merely colorable" or is "not significantly probative."Anderson, 477 U.S. at 249-50. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 248. Thus, to create a genuine issue of material fact for trial, the party opposing the summary judgment must come forward with specific evidence of every element essential to his case with respect to which (1) he has the burden of proof, and (2) the summary judgment movant has made a plausible showing of the absence of evidence of the necessary element. Celotex, 477 U.S. at 323.
Facts
In light of the foregoing standard, the court finds the following facts for the purpose of resolving this motion for summary judgment only. Effective September 1, 1988, defendant issued Group Policy No. CIDC 18-113-952 ("the group policy") to the Financial Services Association ("the FSA"), as group policyholder. The group policy provided accidental death insurance coverage to eligible customers of financial institutions that were members of the FSA.
Certificate No. ID38551901 ("the certificate") was issued to Mr. Gatt effective April 1, 1999, as evidence of his coverage under the group policy. The group policy provided: "When a covered Injury results in the loss of life of an Insured Person within 365 days after the date of the accident, We will pay the Principal Sum applicable to the Insured Person." The policy defined "Injury" to mean "Bodily Injury caused by an accident which occurs while the Insured Person is covered under this policy and that results, directly and independently of all other causes, in loss covered by this policy."
On January 9, 2003, Mr. Gatt underwent a cervical diskectomy and fusion, after which he was prescribed 60 OxyContin (oxycodone) pills for pain, as well as Percocet for breakthrough pain. On January 13, 2003, four days after his surgery, Mr. Gate died.
The day and night before his death, Mr. Gatt slept, worked on his computer, and went to bed early, around 9:30 or 10:00 p.m. Plaintiff did not see Mr. Gatt take his medications on the date of his death. Plaintiff was unaware of any call to 911 made by Mr. Gatt or any report of an emergency made by Mr. Gatt at any time before she found him the next morning. Plaintiff called 911 at that time. Plaintiff observed no signs of foul play and discerned nothing to suggest that Mr. Gait committed suicide. Bradley McKinney, the Lumpkin County Coroner, found Mr. Gatt's body lying in the fetal position in his bed. McKinney reported that Mr. Gatt's prescription "should have had six pills missing according to the directions on the bottle, [but that] a total of 21 pills were missing." He detected "no signs of physical trauma," nor developed any "suspicion of foul play." No one actually saw Mr. Gatt ingest any pills the night before or the morning of his death. Plaintiff claims that she found additional pills in a CD or DVD case at a later date.
An autopsy performed by the Georgia Bureau of Investigation ("the GBI") likewise revealed no evidence of physical trauma to Mr. Gatt's body. A toxicology test was positive for a "significant amount of oxycodone . . . consistent with acute ingestion. . . ." The GBI determined that Mr. Gatt's death was caused by "oxycodone toxicity." Plaintiff, however, presents an affidavit from John Holbrook, PhD which opines that "it is scientifically impossible to exclude causes of death other than oxycodone toxicity." Holbrook also states that "[t]he interaction of other prescription medications or oxycodone with other prescriptions, even if all prescriptions were taken exactly as described, could have been the cause of Mr. Gatt's death."
Discussion
Defendant contends it is entitled to summary judgment because plaintiff can produce no evidence that Mr. Gatt's death was "caused by an accident." Georgia law distinguishes between the terms accidental injury and injuries resulting from accidental means. Laney v. Continental Ins. Co., 757 F.2d 1190, 1190 (11th Cir. 1985); Jackson v. National Life Accident Insurance Co., 130 Ga. App. 208, 209 (1973); Johnson v. National Life Accident Insurance Co., 92 Ga. App. 818, 819 (1955). "There is a very definite distinction between `accidental injuries' and `injuries resulting from accidental means.' Where an injury is unexpected but arises from a voluntary action it is an `accidental injury,' but for an injury to result from accidental means, it must be the unexpected result of an unforeseen or unexpected act which was involuntarily and unintentionally done." Johnson, 92 Ga. App. at 819.
Policy language which insures against bodily injury or death caused by an accident insures against unforeseen injuries caused by "accidental means." Allstate Ins. Co. V. Graves, 216 Ga. App. 419, 421 (1995). It must appear that the insured's death or injury arose by means utilized which were accidental. Id. When an unusual or unexpected result occurs, by reason of the doing of an intentional act, however, with "no mischance, slip, or mishap occurring in the doing of the act itself," the ensuing injury or death is not caused by accidental means. Winters v. Reliance Standard Life Ins. Co., 209 Ga. App. 369, 370 (1993).
In the instant action, there is no evidence that the ingestion of oxycodone by Mr. Gatt was anything other than intentional and voluntary. While plaintiff speculates that perhaps Mr. Gatt was involuntarily intoxicated after taking Percocet and oxycodone and then took a lethal dose of oxycodone, there is absolutely no evidence to support plaintiff's theory. Cf. e.g. Adair v. Boston Mut. Life Ins. Co., 24 F. Supp.2d 1380, 1381 (M.D. Ga. 1998) (granting summary judgment where decedent died of unknown cause, with medication bottles nearby and plaintiff did not present evidence that death was the result of an unintentional act). Holbrook's affidavit likewise does not support a finding in favor of plaintiff. See e.g. Johnson, 92 Ga. App. at 819 (finding death was not by accidental means where insured died as result of unknown "hypersusceptibility" to injection of penicillin). Therefore, the court finds that plaintiff fails to present evidence sufficient to create a genuine issue of material fact as to whether Mr. Gatt's death was caused by an accident. Accordingly, the court hereby GRANTS defendant's motion for summary judgment [docket no. 25].
Summary
Defendant's motion for summary judgment [docket no. 25] is GRANTED.
SO ORDERED.