Ervin Martin Davis, Jr. VS People's Benefit Life Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0194 ERVIN MARTIN DAVIS JR VERSUS PEOPLES BENEFIT LIFE INSURANCE COMPANY DATE OF JUDGMENT SEP 10 2010 APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT NUMBER 2006 15178 DIVISION F PARISH OF ST TAMMANY STATE OF LOUISIANA HONORABLE MARTIN E COADY JUDGE Richard D McShan Counsel for PlaintiffAppellant Amite Louisiana Ervin Martin Davis Jr Covert J Geary Counsel for DefendantAppellee Peoples Benefit Life Insurance Company Sara C Valentine New Orleans Louisiana BEFORE KUHN PETTIGREW AND KLINE Ji Disposition REVERSED AND REMANDED The Honorable William F Kline Jr is serving pro tempore by special appointment of the Louisiana Supreme Court Kuhn J Plaintiff Ervin Martin Davis Jr filed this suit against Peoples Benefit Life seeking to recover benefits under a Insurance Company Peoples Benefit policy that insured the life of his brother Roger Davis whose death was caused by an overdose of prescription medication Peoples Benefit paid a 5 whole life 000 benefit under the terms of the policy but it denied plaintiffs claim for recovery under the terms of two 30 accidental death benefit policy riders In the trial 000 court proceedings Peoples Benefit filed a motion for summary judgment based on the terms of the riders which excluded coverage for the accidental death benefit where such death was caused by or contributed to by influence of being under the any drug which was not administered in a therapeutic dosage or prescribed by a physician The trial court granted Peoples Benefit motion for s summary judgment On appeal we find the policy language at issue is less favorable to the policyholder than the provision of La R 22 and we S 975 l0 B conform the policy to provide the statutorily required coverage See La R S 8 B 975 22 As conformed we find the policy does not exclude coverage for a death that results from an accidental overdose of prescription medication Thus we reverse and remand for further proceedings The record establishes that National Home Life Assurance Company predecessor in interest to Peoples Benefit issued the policy that insured the life of Roger in 1976 The owner of the policy was Roger mother Mrs Ervin Davis who predeceased Roger According to plaintiff his s mother gave him a copy of the policy before she died and he continued to pay the premium The riders at issue provided that benefits would be paid to the beneficiary shown on the policy schedule and in the event there was no such beneficiary benefits would be paid to the decedent s estate Peoples Benefit does not dispute that the schedules in the riders named no beneficiary that plaintiff is Roger only living heir and that he is the proper beneficiary under these riders s 2 I PROCEDURAL AND FACTUAL BACKGROUND Plaintiffs deposition testimony established that he and Roger lived together in Talisheek Louisiana at the time of his death During the last five years of s Roger life he had been involved in multiple accidents in which he had sustained serious injuries to one of his hands and one of his arms He also suffered from back pain he had lost a thumb while splitting wood and he had also suffered severe burns Due to these injuries and the resulting pain he sought medical treatment and had been prescribed Lortab hydrocodone Soma carisoprodol and Xanax alprazolam During this span of time there were a few occasions when plaintiff was aware that his brother had taken dosages of his prescribed medications closer together than they had been prescribed Plaintiff described that the medications confused Roger thinking processes and made him sleepy s Plaintiff also described Roger as having a high tolerance to pain medications and stated that it took a lot to ease his pain Before leaving for work on the morning of October 14 2005 plaintiff spoke to Roger who told him that he was taking pain medication he was not planning to go anywhere and that his plans were to try to get his back to quit hurting During that conversation plaintiff learned that Roger had gone to a pain clinic the day before When plaintiff returned home after work he found his brother dead on the kitchen floor with one pill laying beside him and a pill bottle in his hand Plaintiff called 9 1 1 The coroner Dr Peter Galvan ruled Roger s death as an accident caused by p drug toxicity of Soma Xanax olysubstance and Hydrocodone Plaintiff testified that he had no reason to believe that Roger 3 was suffering from depression and he opined that Roger just accidentally took too much of the prescribed medications in an attempt to relieve his pain According to the deposition of Dr Galvan an internal medicine physician the toxicity reports pertaining to Roger autopsy established that the amounts of s both the hydrocodone and alprazolam in his body at the time of his death were above therapeutic levels and the hydrocodone was at a lethal level The combined effect of the medicines caused respiratory depression ultimately causing him to stop breathing and his heart to stop pumping According to the affidavit and attached opinion letter of Gary H Wimbish D Ph a board certified forensic toxicologist Roger prescribed dose of 10 s milligrams was to be taken four times per day for a total of 40 milligrams per day Since a lethal dose of hydrocodone is at least 100 milligrams Wimbish concluded Roger had consumed at least two and a half times the prescribed amount of hydrocodone He further concluded that the alprazolam taken at three times the therapeutic concentrations contributed to the toxic effect of the hydrocodone reduc the amount of hydrocodone necessary to produce ing respiratory depression and death After plaintiff submitted a proof of loss regarding Roger death Peoples s Benefit denied plaintiff claim for recovery under the accidental death benefit s riders and this suit followed The trial court granted summary judgment in favor of Peoples Benefit and dismissed plaintiffs suit with prejudice Plaintiff has appealed urging the trial court erred in failing to find that Louisiana statutory law prohibits the exclusionary language contained in the riders upon which Peoples Benefit relied in denying coverage 4 11 ANALYSIS A motion for summary judgment will be granted if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law La C art 966 Summary P B judgment is favored and shall be construed to secure the just speedy and inexpensive determination of every action La C art 966 P 2 A The initial burden of proof remains with the movant However if the movant will not bear the burden of proof at trial he need not negate all essential elements of the adverse party claim but he must point out that there is an s absence of factual support for one or more elements essential to the claim La P C art 966 Once the movant has met his initial burden of proof the 2 C burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial See Id Samaha v Rau 07 1726 p 5 La 2 977 So 880 883 08 26 2d The non moving party may not rest on mere allegations or denials but must set forth specific facts that show that a genuine issue of material fact remains If the non moving party fails to meet this burden there is no genuine issue of material fact and the movant is entitled to summary judgment as a matter of law Berry v Paul Revere Life Ins Co 08 0945 p 6 La App l st Cir 7 21 So 385 388 09 9 3d writs denied 09 2220 P C art 966 2 C 09 2241 La 12 23 So 942 09 18 3d 945 see La A fact is material if it potentially insures or precludes recovery affects a litigant ultimate success or determines the outcome of the s legal dispute Samaha 07 1726 at p 6 977 So at 884 quoting Hines v 2d 5 Garrett 040806 p 1 La 6 876 So 764 765 An appellate court 04 25 2d reviews a district court decision to grant a motion for summary judgment de s novo using the same criteria that govern the district court consideration of s whether summary judgment is appropriate Lafayette Elec Marine Supply Inc v Abdon Callais Offshore L 092277 p 1 La App 1st Cir C 2010 29 7 2d So The motion for summary judgment at issue here arose in the context of a suit for accidental death benefits The insurance code gives health and accident insurance policyholders very substantial protection regarding matters of required and optional coverage as addressed in La R 22 See Cauddie v Louisiana S 975 Health Service and Indem Co 456 So 1373 1375 citing former La R 2d S 213 22 With respect to this litigation La R 22 provides as follows in S 975 pertinent part B Other provisions optional No such policy shall be delivered or issued for delivery containing provisions respecting the matters set forth below unless such provisions are in substance in the following forms or at the option of the insurer in forms which in the written opinion of the commissioner of insurance are not less favorable to the policyholder 8 Conformity with state statutes Any provision of this policy which on the date of issue is in conflict with the statutes of the state in which the insured resides at the date of issue is understood to be amended to conform to such statutes 10 Intoxicants and narcotics The insurer shall not be liable for any loss sustained or contracted in consequence of the insured being s Acts 2008 No 415 1 eff January 1 2009 renumbered former La R 22 to La R S 213 S 975 22 without changing the substance of its provisions Louisiana Revised Statutes 22 a 2 47 classifies health and accident insurance as i of human beings against bodily injury nsurance disablement or death by accident or accidental means 6 intoxicated or under the influence of narcotics unless administered on the advice of a physician Emphasis added The accidental death benefit policy riders at issue provide as follows in pertinent part DEFINITIONS B INJURY means injury to your body caused by an accident directly and independently of all other causes ACCIDENTAL DEATH BENEFIT We pay a benefit if you die as a result of an injury EXCLUSIONS We do not pay benefits for accidental death caused by or contributed to by 1 intentionally self inflicted injury suicide or any attempt thereat while sane 5 being under the influence of alcohol or any drug which was not administered in a therapeutic dosage or prescribed by a physician During the trial court proceedings Peoples Benefit did not urge that Roger s death was a suicide or anything other than an accidental death Rather it claimed that the accidental death was subject to the policy exclusion set forth in Paragraph 5 because Roger was under the influence of drugs that were not administered in a therapeutic dosage One rider was effective as of July 22 1996 the other rider was effective October 22 1998 s Plaintiff deposition testimony established that he and his brother had attended high school in Louisiana had resided on the same property near their parents in Louisiana and had worked in Louisiana for many years prior to Roger death Peoples Benefit did not contest that Roger was s a resident of Louisiana as of the dates these riders were issued 7 On appeal plaintiff asserts that the exclusionary language of the policy is less favorable to him as the policyholder than the statutory language of La R S 10 B 975 22 and further that the policy language was not approved by the commissioner of insurance As such plaintiff contends Peoples Benefit should not be able to rely on this exclusion to deny his claim Comparing the Peoples Benefit policy language to the statutory language we find the policy language is in fact less favorable to plaintiff on more than one basis First the Peoples Benefit policy language excludes coverage for an accidental death caused by or contributed to by any drug which was not administered in a therapeutic dosage or prescribed by a physician Thus the policy exclusion would apply in circumstances where the insured is not under the influence of narcotics as specifically referenced in La R 22 S 975 10 B Secondly and most significantly based on the facts presented herein the policy language would exclude coverage for an accidental death caused by or contributed by a drug that is not administered in a therapeutic dosage even though it had been prescribed by a physician The statutory language of under the influence of narcotics unless administered on the advice of a physician is reasonably interpreted as merely requiring that the narcotic substance at issue has been prescribed by a physician rather than requiring that the dosage not exceed a therapeutic or prescribed dosage of that substance See Smith v Stonebridge Life Ins Co 582 F 1209 1219 23 N Cal 2008 Hummel v Continental 2d Supp D Cas Ins Co 254 F 1183 118990 Nev 2003 When the language of a 2d Supp 5 Peoples Benefit did not make any showing that the policy language at issue was approved by the insurance commissioner 0 statute is susceptible of different meanings it must be interpreted as having the meaning that best conforms to the purpose of the law La C art 10 We view the focus of the statutory limitation as excluding losses resulting from the illegal use of drugs as opposed to the legitimate use of a controlled substance pursuant to a physician advice s See Smith 582 F at 1223 2d Supp Peoples Benefit put forth no evidence and we have found no legislative history establishing that our legislature intended the statutory exclusion to limit or regulate losses resulting from accidental overdoses of prescription drugs Because beneficiaries still have the burden of proving that the insured death was accidental an insurer is not s required to insure the risk of an intentional overdose by an insured Id Based on the facts of this case the Peoples Benefit policy language would operate to exclude coverage for Roger death because it was caused by or s contributed to by the hydrocodone and alprazolam that was ingested by Roger in non therapeutic dosages although these drugs were administered on the advice of a physician However because the policy language is less favorable to plaintiff than the statutory language it must be conformed to comply with the language of La R 22 As such we recognize there is no dispute that Roger S 975 10 B legally possessed the drugs that caused his death i he had been prescribed the e drugs that caused his death by a physician We construe administered on the advice of a physician to include Roger situation where he had sought medical s attention for pain relief and had been prescribed these drugs Thus we conclude that the statutory exclusion which excludes liability for any loss sustained as a result of the insured being under the influence of narcotics unless administered s on the advice of a physician does not preclude coverage based on the facts of this 9 case Peoples Benefit has failed to establish that plaintiff is not entitled to recover benefits pursuant to the riders based on Roger death being caused by drugs s prescribed to him but administered in non therapeutic dosages Accordingly Peoples Benefits has failed to establish it was entitled to summary judgment as a matter of law and the trial court erred in granting its motion La C art P B 966 III CONCLUSION For these reasons the trial court judgment is reversed and we remand this s matter for further proceedings in accordance with this opinion The costs of this appeal are assessed to Peoples Benefit REVERSED AND REMANDED 10
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