The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant's motion for summary judgment filed on June 25, 2010. See Docket No. 13. The Plaintiff filed a response in opposition to the motion on July 15, 2010. See Docket No. 18. On July 29, 2010, the Defendant filed a reply brief. See Docket No. 19. For the reasons set forth below, the Court grants the motion.
The plaintiff, Karen Appeldorn ("Appeldorn"), is the surviving spouse of Eugene Appeldorn. Eugene Appeldorn was employed by Basin Electric Power Cooperative ("Basin Electric") at the time of his death. Basin Electric sponsored an employee welfare benefit plan providing accidental death and dismemberment business travel insurance coverage and benefits to eligible participants and beneficiaries. To fund the plan, Basin Electric purchased Policy ETB-104030 from the defendant, Hartford Life and Accident Insurance Company ("Hartford"). Eugene Appeldorn served on the board of directors for Basin Electric from 2003 until his death in February 2008 and was a participant under Policy ETB-104030.
On February 12, 2008, Eugene Appeldorn traveled by corporate jet to Bismarck, North Dakota to attend Basin Electric's board of director's meeting to be held the following day. Mr. Appeldorn had "cold" symptoms for several days before the flight. The pressurization system in the plane functioned normally, but Mr. Appeldorn complained of severe pain in his ear and head during the flight. Upon arriving in Bismarck, Mr. Appeldorn sought medical attention at an urgent care facility and was diagnosed with a middle ear infection. Mr. Appeldorn then went to his hotel room and did not join his travel companions for dinner. On the morning of February 13, 2008, Mr. Appeldorn was found dead in his hotel room.
Dr. William Massello III, from the North Dakota State Forensic Medical Examiner's Office, conducted an autopsy on February 14, 2008 which included the following:
This 65-year old white male was found dead in his motel room. He had been under medical treatment for an ear infection. Post-mortem examination revealed lethal bacterial meningitis, an infection of the coverings of the brain and spinal cord. Bacterial cultures of the infectious material revealed that it was caused by a bacterium called the pneumococcus. There were no other abnormalities of the internal organs which would have caused or contributed to his death.
See Docket No. 16-1, p. 90.
In March 2008, Karen Appeldorn, as Eugene Appeldorn's widow and named beneficiary, filed a claim with Hartford for benefits under Policy ETB-104030 in the amount of $500,000.00. On May 3, 2008, Dr. Kenneth Carter, Eugene Appeldorn's family practitioner, sent Hartford a letter in which Dr. Carter opined:
Pneumococcal meningitis in adults is quite unusual per my 40 years as a physician. This is an organism that is frequently found causing ear infections in children and adults. It is likely that the nidus for the patient's meningitis began in the patient's ear. I believe that there is a direct relationship between his otitis media and his meningitis. I further believe that the increased pressure inside the ear related to depressive/pressurization, which likely was caused by his cold and eustachian tube dysfunction, caused a septic embolus to go from his middle ear into the meningeal space, causing the meningitis. The rapidity with which the patient went from being in good health to being found dead was so quick that it is unlikely that any other symptoms were going on. I believe I can state with confidence that there is a direct relationship between the patient's flight and the meningitis that subsequently claimed his life.
See Docket No. 16-2, p. 7. Hartford hired Dr. Daniel McQuillen, who is board certified in internal medicine and infectious disease, to conduct an independent medical record review. On August 8, 2008, Dr. McQuillen concluded, "The record offers no medical evidence to support Dr. Carter's theory of a septic embolus of S. pneumoniae from the middle ear to the subarachnoid space." See Docket No. 16, p. 107.
On August 25, 2008, Hartford sent Appeldorn a letter, informing her that her claim was denied because "Mr. Appeldorn's loss does not meet the Policy's definition of Injury." See Docket No. 16-1, p. 30. Appeldorn appealed the denial decision by letter dated October 24, 2008. See Docket No. 16, pp. 91-92. On December 10, 2008, Dr. Mark Friedman, who is board certified in internal medicine, submitted an independent medical record review to Hartford. See Docket No. 16, pp. 63-66. Dr. Friedman concluded the following:
REFERRAL QUESTION: "Is there a direct relationship between the insured's flight (altitude, ascending and descending) and the meningitis ...