10-1448 Sellers v. Zurich American Ins. Co.

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Insurance
ERISA; cause of death

Where an individual dies because of complications associated with medical treatment for an accident, that accident is the cause of death.

“The parties’ dispute centers on whether the wire break, assuming for the moment that it was the underlying reason for Mr. Sellers’s November 2006 surgery, constituted an accidental bodily injury. Mrs. Sellers contends that it did. While we are sympathetic to Mrs. Sellers’s attempt to avoid the harsh impact of the policy’s 365-day bar, Senkier requires us to disagree. That the wire might break was a risk associated with the original operation, as evidenced by the fact that Dr. Schultz expected it to break. Therefore, to the extent that the breaking of the wire was an injury, it was a result of the first surgery. Under Senkier, such ‘injuries resulting from medical treatment’ are not accidents as that term is used in AD&D policies. 948 F.2d at 1051-52. Because the wire break is exactly the type of complication we discussed in Senkier, it cannot be characterized as an accident.”

“The discussion above indicates that, to the extent that Mr. Sellers’s death can be traced to any accidental injury, it is to the September 2005 injury. However, because that injury predated his death by more than 365 days, Mrs. Sellers is not entitled to benefits under the AD&D policy.”

Affirmed.

10-1448 Sellers v. Zurich American Ins. Co.

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Flaum, J.

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