Rich v. Principal Life Insurance Company

Docket No. 103754.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

DAVID RICH, Appellant, v. PRINCIPAL LIFE INSURANCE

COMPANY, Appellee.

Opinion filed September 20, 2007.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

Plaintiff, David Rich, brought an action in the circuit court of

Winnebago County against defendant, Principal Life Insurance

Company, for breach of an insurance contract. Defendant filed a

counterclaim against plaintiff seeking a declaratory judgment. Plaintiff

and defendant filed cross-motions for summary judgment in the

declaratory judgment action. The circuit court entered summary

judgment in favor of plaintiff. The appellate court reversed and

entered summary judgment in favor of defendant. No. 2–05–1197

(unpublished order under Supreme Court Rule 23). We allowed

plaintiff’s petition for leave to appeal (210 Ill. 2d R. 315(a)), and now

affirm the judgment of the appellate court.

I. BACKGROUND

The pertinent and undisputed facts are as follows. On March 20,

1980, Bankers Life Company, now known as defendant, Principal Life

Insurance Company, issued a disability insurance policy to plaintiff.

The policy provides that defendant will pay monthly benefits “if Total

Disability (as that term is defined in this policy) of the Insured

commences while the Policy is in force.” The policy defines “total

disability” as “the complete inability of the Insured due to Injury or

Sickness to perform any and every duty pertaining to an occupation

(as defined herein) for remuneration or profit.” The policy defines the

terms “Sickness” and “Injury” as follows:

“INJURY means accidental bodily injury sustained by the

Insured while this Policy is in force. Injury which is a direct or

indirect result of physical or mental infirmity, illness or disease

of any kind, or medical or surgical treatment therefor or Injury

which results in Total Disability which commences more than

90 days after the date the Injury is sustained will be deemed to

be Sickness.”1

In the benefit and premium schedule, the policy prescribes lifetime

benefits if the disability resulted from an “injury,” but limits the benefit

period to five years if the disability resulted from a “sickness.”

On January 19, 1999, plaintiff was loading 50-pound tires onto a

truck at work. A tire bounced back and struck his right wrist. Plaintiff

continued working despite pain and swelling in the wrist. The next

day, a medical examination with X-rays revealed only a contusion and

strain. However, plaintiff continued to experience pain and swelling

in his right wrist. On March 3, 1999, plaintiff received an MRI. On

March 3 and 18, based on the MRI, various physicians diagnosed

plaintiff as having a tear of the right scapholunate ligament with

segmental instability. Dr. Robert Schenck confirmed this diagnosis and

recommended surgery. Plaintiff was fully employed from January 19,

1999, through May 17, 1999.

On May 18, 1999, Dr. Schenck performed surgery on plaintiff’s

right wrist. Exploration of the wrist revealed a complete, irreparable

1

Further, according to the policy: “SICKNESS means sickness or disease

of the Insured first manifested while this policy is in force.”

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rupture of the scapholunate ligament. Consequently, Dr. Schenck

performed a scapholunate fusion, inserting pins to attach a bone graft

from the distal radius. On August 23, 1999, Dr. Schenck removed the

cast from plaintiff’s right hand and wrist. Dr. Schenck observed

swelling on the dorsal aspect of plaintiff’s hand and drainage at the

fusion site. Dr. Schenck removed the pins and prescribed oral

antibiotics to prevent infection from spreading to the bone. On August

25, 1999, plaintiff returned to Dr. Schenk with complaints of

abnormal redness and swelling near the site where the pins had been

removed. Cultures from the pin-removal site revealed a “rare growth

of staphylococcus species.” As a result, Dr. Schenck directed plaintiff

to continue taking his antibiotics.

On August 25, 1999, plaintiff applied for benefits under his

disability insurance policy by submitting to defendant a verified

disability claim notice. Plaintiff identified his injury as the torn

ligament in his right wrist, which he incurred while loading tires at

work on January 19, 1999. Plaintiff stated that his total disability

commenced on May 18, 1999, the date of his wrist surgery. Plaintiff

explained: “I was put on disability because of an infection in my wrist

that was operated on.”

In a letter dated September 8, 1999, defendant acknowledged

receipt of plaintiff’s disability claim notice. Defendant advised plaintiff:

“The Maximum Benefit Period is five years. For disabilities as a direct

result within 90 days of an accident/injury, your benefit is extended to

your lifetime.” Also, defendant requested an attending physician’s

statement to further process plaintiff’s claim. Plaintiff thereafter

submitted the statement, prepared by Dr. Schenck, who verified that

he “told the patient [plaintiff] to restrict employment activities,” and

that the restrictions began on May 18, 1999. In a letter dated October

1, 1999, relying on the verified information that plaintiff provided,

defendant determined that plaintiff was totally disabled as of May 18,

1999, and awarded him benefits under the policy beginning on June

17, 1999, after the policy’s 30-day elimination period.

Dr. Schenck continued to treat plaintiff on a monthly basis for

hand and wrist pain. On January 31, 2000, plaintiff complained again

of swelling and redness. X-rays revealed that plaintiff suffered from

osteomyelitis in the proximal scaphoid and adjacent lunate bones. A

biopsy of plaintiff’s wrist revealed a rare growth of staphylococcus

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species and mold. As a result, Dr. Schenck referred plaintiff to Dr.

David Simon, an infectious disease specialist, who ordered a six-week

course of intravenous antibiotics. On March 30, 2000, Dr. Schenck

operated a second time on plaintiff’s right wrist and discovered that

the lunate and adjacent portions of his scaphoid bones were necrotic.

Dr. Schenck excised most of the necrotic bone and advised plaintiff

that if the scaphoid failed to fuse, he would eventually need a total

wrist fusion. On October 22, 2001, plaintiff underwent wrist fusion

surgery and an ulnar head replacement on his right wrist.

The record shows that defendant administered plaintiff’s claim as

having a five-year benefit period. In a July 12, 2001, letter to plaintiff,

in which defendant approved plaintiff’s continued benefits, defendant

noted: “Benefits will continue until June 16, 2004, which is when your

benefits will exhaust, as long as you continue to be Disabled per the

provisions of your policy and provide Proof of Loss that you are

satisfying this policy requirement.”

On August 28, 2002, plaintiff requested that defendant reconsider

its determination that he was ineligible for lifetime benefits. Defendant

responded in a letter dated August 30, 2002. Defendant explained that

it was correctly administering plaintiff’s claim as a “sickness” under

the policy, based on the verified facts that plaintiff gave in his claim

forms. Citing the policy provision defining “sickness,” defendant noted

the policy’s 90-day injury limitation. Defendant informed plaintiff that,

according to the information in his claim file, plaintiff did not become

disabled from the January 19, 1999, injury until May 18, 1999, or 120

days after he sustained the injury. Defendant further explained that

because plaintiff’s total disability began more than 90 days after the

date the injury was sustained, the claim was administered as a sickness

and that plaintiff was not eligible for lifetime benefits. Defendant

advised plaintiff that if he wished to be further considered for lifetime

benefits under the policy, he would need to provide defendant with

medical and employment documentation that would support that he

became totally disabled within the 90 days that followed the January

19, 1999, work-related injury.

In a letter dated January 24, 2003, plaintiff, through counsel,

disagreed with defendant’s position, contending: “The injury for which

[plaintiff] is disabled occurred on May 18, 1999, the date that he was

exposed to a contaminated operation field. This field caused him to

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suffer a severe staph infection which resulted in substantial

deterioration of his bones. It is for this reason that he is disabled.”

Therefore, according to plaintiff, “his disability occurred as the direct

result of his injury within 90 days of his onset of disability. Therefore,

he should be entitled to the benefit extended into his lifetime.”

Defendant advised plaintiff’s counsel that it would again review its

administration of plaintiff’s claim. In a letter dated April 1, 2003,

defendant denied plaintiff’s second request for lifetime benefits.

Defendant again cited the policy’s definition of “injury” and explained

that, because the verified information that plaintiff submitted with his

claim showed that plaintiff’s disability began on May 18, 1999, more

than 90 days after his January 1999 accident, plaintiff’s injury was

properly deemed a “sickness” under the policy. Defendant also

advised plaintiff’s counsel that if plaintiff had additional information

to support his request for lifetime benefits, he should forward the

information to defendant for consideration.

At plaintiff’s request, Dr. Jeffrey Coe examined plaintiff and

reviewed plaintiff’s medical records. In a detailed explanation of

plaintiff’s medical history and his own findings on examination, Dr.

Coe reported as follows. On January 19, 1999, plaintiff suffered a

contusion and strain to his right wrist in an accident at work, which

caused an internal derangement with scapholunate dissociation. Initial

treatment for the January 1999 injury led to only limited improvement,

and plaintiff’s physicians eventually recommended surgery. Plaintiff

underwent surgery on May 18, 1999, and appeared to be recovering

through late July 1999. However, recovery became complicated by the

development of an internal infection. Based on his findings, Dr. Coe

opined that: (1) there was a causal relationship between the injury

suffered by plaintiff at work on January 19, 1999, and his current

symptoms and state of impairment; and (2) plaintiff’s injury has caused

permanent partial disability to his right arm.

Plaintiff submitted Dr. Coe’s report to defendant in support of his

third request for lifetime benefits. In a November 21, 2003, letter,

defendant confirmed its denial, explaining that Dr. Coe did not

provide any new or different information that would change its

position. According to defendant’s records, plaintiff’s injury occurred

on January 19, 1999, but his disability did not begin until May 18,

1999, and, under the terms of the policy, plaintiff’s claim could not be

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considered an “injury,” but rather was deemed a “sickness,” for which

he has received the appropriate benefits.

On January 7, 2004, plaintiff’s counsel requested defendant for the

fourth time to review its denial of lifetime benefits to plaintiff. In the

letter, counsel contended that plaintiff was injured on May 18, 1999,

when he sustained the staph infection. Defendant responded in a

January 16, 2004, letter, explaining that it did not dispute that

plaintiff’s disability began on May 18, 1999. Accordingly, plaintiff’s

May 18, 1999, disability did not qualify for lifetime benefits because:

(1) plaintiff’s January 19, 1999, injury, which resulted in his surgery,

and the date of his disability, May 18, 1999, occurred more than 90

days apart; and (2) plaintiff’s May 18, 1999, disability was the direct

or indirect result of surgical treatment and, therefore, the disability

was deemed to be a “sickness.”

On April 12, 2004, defendant’s assistant director of claims spoke

with plaintiff’s counsel by telephone regarding plaintiff’s claim for

lifetime benefits. She explained that plaintiff’s condition was a direct

or indirect result of an illness or disease, i.e., the staph infection, or

surgical treatment in the form of the May 18, 1999, wrist surgery.

Therefore, plaintiff’s claim was considered a sickness under the policy.

On June 16, 2004, defendant sent a letter to plaintiff advising him that

he had exhausted his five-year period of disability benefits as of June

16, 2004, and that no further benefits were payable for his claim under

the terms of the policy.

Thereafter, on October 21, 2004, plaintiff filed a one-count

complaint against defendant for breach of contract, seeking lifetime

benefits under the policy. Defendant answered and counterclaimed for

a declaratory judgment that defendant had no further obligations

under the policy. Plaintiff answered defendant’s counterclaim by

admitting all statements of fact and denying only the appropriateness

of defendant’s determination of disability benefits under the policy.

Plaintiff and defendant filed cross-motions for summary judgment

in defendant’s declaratory judgment action. In its motion for summary

judgment and in its response to plaintiff’s motion, defendant

contended that it had properly administered plaintiff’s disability claim

as a “sickness.” Defendant argued that plaintiff’s total disability began

on May 18, 1999, more than 90 days after his January 1999 injury.

Defendant argued alternatively that, even if plaintiff’s staph infection

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constitutes a “new and independent” injury, which he sustained on

May 18, 1999, that injury arose as a result of wrist surgery.

Consequently, in the language of the policy, plaintiff’s injury was a

sickness because it was the result of “physical or mental infirmity,

illness or disease of any kind, or medical or surgical treatment

therefor.”

In his motion for summary judgment and in his response to

defendant’s motion, plaintiff contended that he was entitled to lifetime

disability benefits pursuant to the policy. Plaintiff argued as follows.

The language of the policy was ambiguous and, therefore, must be

construed in his favor and against defendant. The policy language was

against public policy and contrary to the expectations of a reasonable,

ordinary person making a contract. Also, plaintiff’s staphylococcal

infection was a new and separate injury, which was the direct result of

the May 18, 1999, wrist surgery. Consequently, plaintiff’s disability

began not only within 90 days of, but on the same day as, the injury.

In a memorandum decision, the circuit court found that plaintiff

was entitled to lifetime disability benefits pursuant to the policy. 2 In its

final judgment order, the circuit court granted plaintiff’s motion for

summary judgment and denied that of defendant.

Defendant appealed from the circuit court’s final judgment order.

The appellate court found that the pertinent policy language was clear

and unambiguous. Further, the appellate court found that it was not

unusual, unreasonable, or against public policy for a disability

insurance policy to limit benefits by prescribing the conditions that

constitute an “injury” or a “sickness.”

Applying the policy provision to the undisputed facts, the appellate

court found as follows. Plaintiff became disabled more than 90 days

after his work-related injury. In light of the stipulated verified facts in

plaintiff’s own claim submissions, plaintiff could not avoid the 90-day

limitation by claiming that the May 18, 1999, staph infection

2

Prior to the entry of judgment, the circuit court granted plaintiff leave to

file an amended complaint, in which plaintiff added a claim against defendant

alleging bad faith pursuant to section 155 of the Illinois Insurance Code (215

ILCS 5/155 (West 2004)). The circuit court granted defendant’s motion to

dismiss this claim.

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constituted a “new” injury. Further, even if plaintiff’s disability arose

within 90 days of a new injury, i.e., the infection, plaintiff was still not

entitled to lifetime disability benefits because this “new injury” was not

an “accidental” injury that fell under the policy’s general grant of

coverage. Because the new injury was not “accidental” and cognizable

under the policy’s general grant of coverage in the first instance, the

appellate court did not consider whether plaintiff’s injury was “a direct

or indirect result of physical or mental infirmity, illness or disease of

any kind, or medical or surgical treatment therefor.” The appellate

court reversed the circuit court’s entry of summary judgment in favor

of plaintiff and entered summary judgment in favor of defendant.

Plaintiff appeals to this court.3

II. ANALYSIS

This matter is before us on the grant of summary judgment in

favor of defendant. Summary judgment is appropriate only where “the

pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of

law.” 735 ILCS 5/2–1005(c) (West 2004). The circuit court’s entry

of summary judgment is subject to de novo review. Outboard Marine

Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

Specifically, the construction of an insurance policy is a question of

law, which is reviewed de novo. Central Illinois Light Co. v. Home

Insurance Co., 213 Ill. 2d 141, 153 (2004); Travelers Insurance Co.

v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001).

When construing the language of an insurance policy, a court’s

primary objective is to ascertain and give effect to the intentions of the

parties as expressed by the words of the policy. Hobbs v. Hartford

Insurance Co. of the Midwest, 214 Ill. 2d 11, 17 (2005); Central

Illinois Light, 213 Ill. 2d at 153; American States Insurance Co. v.

Koloms, 177 Ill. 2d 473, 479 (1997). Because the court must assume

3

Before the appellate court, plaintiff cross-appealed from the circuit

court’s dismissal of his claim brought pursuant to section 155 of the

Insurance Code. The appellate court affirmed the dismissal, from which

plaintiff does not appeal.

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that every provision was intended to serve a purpose, an insurance

policy is to be construed as a whole, giving effect to every provision

(Central Illinois Light, 213 Ill. 2d at 153), and taking into account the

type of insurance provided, the nature of the risks involved, and the

overall purpose of the contract (Koloms, 177 Ill. 2d at 479; Outboard

Marine, 154 Ill. 2d at 108). “All the provisions of the insurance

contract, rather than an isolated part, should be read together to

interpret it and to determine whether an ambiguity exists.” United

States Fire Insurance Co. v. Schnackenberg, 88 Ill. 2d 1, 5 (1981). If

the words used in the policy are clear and unambiguous, they must be

given their plain, ordinary, and popular meaning (Central Illinois

Light, 213 Ill. 2d at 153), and the policy will be applied as written,

unless it contravenes public policy (Hobbs, 214 Ill. 2d at 17).

If the words used in the insurance policy are reasonably

susceptible to more than one meaning, they are considered ambiguous

and will be construed strictly against the insurer who drafted the

policy. Central Illinois Light, 213 Ill. 2d at 153; Koloms, 177 Ill. 2d

at 479; Outboard Marine, 154 Ill. 2d at 108-09. This is especially true

with respect to provisions that limit or exclude coverage. Outboard

Marine, 154 Ill. 2d at 119; Pioneer Life Insurance Co. v. Alliance

Life Insurance Co., 374 Ill. 576, 586 (1940). A contract is not

rendered ambiguous merely because the parties disagree on its

meaning. Central Illinois Light, 213 Ill. 2d at 153. A court will

consider only reasonable interpretations of the policy language and

will not strain to find an ambiguity where none exists. Hobbs, 214 Ill.

2d at 17; Eljer Manufacturing, 197 Ill. 2d at 293; Schnackenberg, 88

Ill. 2d at 5. “Although policy terms that limit an insurer’s liability will

be liberally construed in favor of coverage, this rule of construction

only comes into play when the policy is ambiguous.” Hobbs, 214 Ill.

2d at 17.

Exclusions such as those contained in the policy before us are not

contrary to public policy. “Disability insurance is designed to provide

protection from loss of income caused by an injury or disease which

either limits or destroys the insured’s ability to work.” 10A Couch on

Insurance 3d §146:2, at 146–10 (1998); 1 J. Appleman & J.

Appleman, Insurance Law & Practice §23, at 60 (1981) (same).

“Some policies may expressly limit liability to disabilities that are

solely the result of an accident, as distinguished from a disability

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which results in part from the insured’s prior condition or some other

cause than an accident, such as illness or disease.” 10A Couch on

Insurance 3d §146:12, at 146–30 (1998). Further:

“Modern policies, however, are more likely to cover

disabilities resulting from both accident and illness, but to vary

the benefits depending on which. For example, a policy may

afford benefits for a limited amount of time where the

disability is caused by sickness or disease, but provide longer,

even unlimited, benefits where disability results from

accident.” 10A Couch on Insurance 3d §146:12, at 146–31

(1998).

Accordingly, the extent of an insurer’s liability under a disability

insurance policy depends on the terms of the insurance contract. 22A

Ill. L. & Prac. Insurance §383, at 73 (1999).

Additionally, the inclusion of time limitations in insurance policies,

such as the 90-day limitation in the policy before us, does not violate

public policy. Kirk v. Financial Security Life Insurance Co., 75 Ill. 2d

367, 377 (1978); accord 10A Couch on Insurance 3d §146:22, at

146–48 (1998) (stating that “it is common for the policy to require

that the disability occur within a specified time after the injury”); 1C

J. Appleman & J. Appleman, Insurance Law & Practice §612, at 128

(1981) (stating that insurance contracts frequently provide “that death

or disability must follow within a stipulated number of days following

an accident. These provisions have been considered valid and

enforceable”). As there is nothing in the insurance contract before us

that violates public policy, if its language is unambiguous, it is our

duty to give it effect. Hobbs, 214 Ill. 2d at 18.

In the present case, viewing the policy as a whole, while not a

model of clarity, we conclude that the policy language is

unambiguous. The policy entitles plaintiff to lifetime benefits for a

disability resulting from an “injury.” The policy defines “injury” as an

“accidental bodily injury sustained by the Insured while the Policy is

in force.” A contract term may be unambiguous because it has

acquired an established legal meaning. Schnackenberg, 88 Ill. 2d at 5.

“Accidental bodily injury” refers to an unforeseen or unexpected

bodily injury. See Yates v. Bankers Life & Casualty Co., 415 Ill. 16,

19 (1953); Carney v. Paul Revere Life Insurance Co., 359 Ill. App.

3d 67, 82 (2005).

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The policy otherwise limits plaintiff to a five-year benefit period

for a disability resulting from a “sickness.” The policy includes in its

definition of “sickness” four types of injuries. Although the

punctuation used in an insurance contract cannot be manipulated to

alter the plain meaning of the text, rules of grammar may be consulted

to illumine the true meaning of the language used. See Continental

National America Insurance Co. v. Aetna Life & Casualty Co., 186

Ill. App. 3d 891, 897 (1989); 2 Couch on Insurance 3d §22:5 (2005).

In this case, the absence of commas in the policy limitation indicates

a series of restrictive clauses that identify or define the antecedent

noun–injury. See W. Strunk & E. White, The Elements of Style 3-4

(3d ed. 1979) (discussing restrictive and nonrestrictive clauses). Thus

the policy limitation can be separated as follows: (1) an injury which

is a direct or indirect result of physical or mental infirmity; (2) an

injury which is a direct or indirect result of illness, or disease of any

kind; (3) an injury which is a direct or indirect result of medical or

surgical treatment therefor; or (4) an injury which results in total

disability which commences more than 90 days after the date the

injury is sustained will be deemed to be “sickness.” By deeming these

four types of injury as sickness, the policy excludes them from lifetime

benefits for an “accidental bodily injury,” but rather limits them to five

years of benefits for a sickness. This construction is consistent with a

natural reading of the policy, grammar, and the nature of this type of

policy.

Plaintiff assigns error to the appellate court’s conclusion that

defendant properly administered his claim as a “sickness” under the

terms of the policy. Plaintiff contends that his “exposure to

staphylococcal bacteria is a compensable accidental injury under the

Policy.” However, plaintiff’s contention ignores the policy’s two

coverage limitations. First, regarding the 90-day period between injury

and disability, plaintiff’s characterization of the May 18, 1999,

infection as an “injury” does not negate the causative effect of the

January 19, 1999, accident. Second, even viewing the May 18, 1999,

infection in isolation, plaintiff’s alleged “new injury” is nonetheless

properly limited to coverage as a “sickness” under the policy as being

the result of illness or disease or medical or surgical treatment

therefor.

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A. “More Than 90 Days”

The appellate court held that defendant properly administered

plaintiff’s claim as a “sickness” under the policy’s 90-day injury

limitation period. After reviewing the record, the appellate court

concluded that the circuit court ignored the uncontested evidence,

which compelled a finding “that plaintiff’s injury fell squarely within

the policy’s definition of a sickness.” We agree.

The undisputed evidence demonstrates that plaintiff injured his

wrist on January 19, 1999. Although plaintiff sustained the injury in

January 1999, he did not become totally disabled until May 18, 1999,

more than 90 days after he sustained the injury. The policy defines

“Total Disability” as the “complete inability of the Insured due to

Injury or Sickness to perform any and every duty pertaining to an

occupation *** for remuneration or profit.” The date of “Total

Disability” is an uncontested fact supported by the record. It was also

undisputed that plaintiff’s disability arose from the staph infection

incurred from the May 18, 1999, surgery, four months after his initial

injury at work on January 19, 1999. Moreover, plaintiff himself first

provided the May 18, 1999, date of disability in his initial disability

claim notice to defendant. He described his “injury” as a torn ligament

in his right wrist, incurred on January 19, 1999, and stated that he

became totally disabled on May 18, 1999, because of an infection in

his wrist following an operation. Plaintiff then submitted an attending

physician statement, verified by Dr. Schenck, which also confirmed

that his employment activities were first restricted on May 18, 1999.

Subsequent to his retention of counsel, plaintiff has steadfastly

contended that the May 18, 1999, infection was a “new” and

independent injury. If we were to accept plaintiff’s contention, his

disability would axiomatically occur within the 90-day limitations

period between injury and disability. However, we cannot accept this

contention because it ignores the causative effect of the January 19,

1999, accident.

The controlling principles are widely recognized. The secondary

results of an accident do not break the causal connection thereto.

“Accordingly, the fact that an insured incurs an infection or disease

following an accident does not break the thread of causation from the

accident to the ultimate result where such infection or disease is the

result of the accident.” 10 Couch on Insurance 3d §139:30, at 139–68

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through 139–69 (1998). In other words: “If *** the insured has

received an injury covered by the contract which has necessitated an

operation, the performance of the operation does not, in itself,

constitute an independent, intervening cause nor prevent the accident

from remaining the proximate cause of death [or disability].” 1B J.

Appleman & J. Appleman, Insurance Law & Practice §412, at 175-76

(1981). Further:

“Disability or death resulting from the medical treatment

of a covered accidental injury is regarded as having been

caused by such injury and compensable under the accident

policy, if the treatment administered was necessary or proper

because of injury. Whether a particular surgical act performed

is one which could be considered an accident, in light of

subsequent developments, is something which usually must be

determined under the facts of each different case.” 1B J.

Appleman & J. Appleman, Insurance Law & Practice §414, at

181 (1981).

In other words, where an accidental injury leads to medical

complications, which in turn lead to the covered loss, the “accident”

is the event that caused the original injury–the “accident” is not the

development of medical complications. Jurrens v. Hartford Life

Insurance Co., 190 F.3d 919, 923 (8th Cir. 1999) (applying South

Dakota law).

Applying these principles to the present case, there is no genuine

factual issue regarding the causative effect of plaintiff’s January 1999

injury. It cannot go unnoticed that defendant repeatedly advised

plaintiff that there was nothing defendant could do under the terms of

the policy to alter its benefit determination based on the length of time

reported between the date of his injury, January 19, 1999, and the

onset of his total disability, May 18, 1999. Defendant repeatedly

advised plaintiff, through his counsel, that to be considered eligible for

lifetime benefits under the policy, plaintiff would need to provide

documentation to support a finding that he became disabled within 90

days of his injury. Defendant also specifically asked plaintiff to confirm

whether the date of disability that plaintiff provided on his claim form,

May 18, 1999, was in fact the correct date that his disability

commenced. Plaintiff did not–and could not–provide any proof to the

contrary.

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Indeed, plaintiff’s own medical expert, Dr. Coe, clearly negates

plaintiff’s contention. Throughout his comprehensive report, Dr. Coe

refers only to one injury–plaintiff’s wrist injury incurred in a work

accident on January 19, 1999. According to Dr. Coe, from that single

injury flowed plaintiff’s resulting symptoms and treatment thereof,

which included surgery, and the development of the infection and

plaintiff’s disability. Dr. Coe specifically concluded that there was “a

causal relationship between the injury suffered by Mr. Rich at work

for H&W Motor Express on January 19, 1999, and his current

symptoms and state of impairment.” Plaintiff cannot make the date of

disability earlier, and his attempt to make the date of injury later

cannot succeed based on this record. See, e.g., Jurrens, 190 F.3d at

922-23 (affirming summary judgment for defendant insurer and

rejecting plaintiff’s contention that infection resulting from accident

was itself accident that came within policy limitations period, noting

that plaintiff’s own expert witness identified initial accident as cause

of injury).

B. Illness, Disease, or Treatment Therefor

Further, even if plaintiff could amend the dates of injury and

disability so as to come within the 90-day limitations period, his claim

for lifetime benefits fails nonetheless. We conclude that plaintiff’s

claim for lifetime benefits fails because his alleged new and

independent injury, occurring on May 18, 1999, fell within the policy

exclusion for injury resulting from illness or disease, or medical or

surgical treatment therefor.

The appellate court held that plaintiff’s alleged “new injury” was

not an “accidental” injury that was cognizable by the policy’s general

grant of coverage. Accordingly the appellate court did not consider

whether the injury was excluded as a direct or indirect result of

infirmity, illness, or disease, or medical or surgical treatment therefor.

Assigning error to this reasoning, plaintiff contends that injury

resulting from surgery can constitute an “accident” under Illinois law.

Considered in isolation, plaintiff’s contention is unremarkable. In

Christ v. Pacific Mutual Life Insurance Co., 312 Ill. 525 (1924), this

court reviewed the definitions and applications of the term “accident”

in insurance cases, and adopted the view of the United States Supreme

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Court in United States Mutual Accident Ass’n v. Barry, 131 U.S. 100,

33 L. Ed. 60, 9 S. Ct. 755 (1889). Under the rule adopted in Illinois:

“[I]f an act is performed with the intention of accomplishing

a certain result, and if, in the attempt to accomplish that result,

another result, unintended and unexpected, and not the

rational and probable consequence of the intended act, in fact,

occurs, such unintended result is deemed to be caused by

accidental means.” Yates, 415 Ill. at 19.

In Christ, the insured committed an intentional act of drinking water

from a faucet. However, because of an unknown defect in the valve

of the water pipes, he drank polluted water and contracted typhoid

fever, from which he died. This court deemed the unforeseen and

unexpected occurrence in the act preceding the injury to render the

injury “accidental.” Yates, 415 Ill. at 20 (discussing Christ). See

Carney, 359 Ill. App. 3d at 82 (finding insured’s injury to be

“accidental bodily injury” under terms of disability insurance policy).

In the present case, Christ appears conclusive on this point and

indicates that plaintiff incurred “accidental bodily injury.” See Reid v.

Aetna Life Insurance Co., 440 F. Supp. 1182, 1183 (S.D. Ill. 1977)

(applying Illinois law), aff’d without op., 588 F.2d 835 (7th Cir.

1978). Accordingly, plaintiff would be entitled to lifetime disability

benefits absent any limitations or exclusions in the policy. Indeed,

reading the policy as a whole, the exclusion would be superfluous if

it limited losses which the policy’s general insuring clause did not

cover. “An exclusion in an insurance policy serves the purpose of

taking out persons or events otherwise included within the defined

scope of coverage.” General Insurance Co. of America v. Robert B.

McManus, Inc., 272 Ill. App. 3d 510, 514 (1995); accord Hammer v.

Lumberman’s Mutual Casualty Co., 214 Conn. 573, 588-89, 573

A.2d 699, 706 (1990) (collecting authorities). Therefore, the issue is

whether or not the injury falls within the policy exclusion for illness or

disease, or medical or surgical treatment therefor. See Litman v.

Monumental Life Insurance Co., 289 Ill. App. 3d 181, 184 (1997)

(identifying dispositive issue as whether insured’s death occurred as

result of medical treatment, for which accidental death policy excluded

coverage); Reid, 440 F. Supp. at 1183 (same). The Christ and Carney

cases, upon which plaintiff relies, are inapposite because they do not

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involve a plaintiff’s injury that resulted from medical or surgical

treatment.

Viewing the May 18, 1999, staph infection as a new and

independent injury, there can be no credible dispute that the injury was

the result of surgical treatment. Accordingly, under the terms of the

policy, we must deem the injury to be a sickness, and conclude that

defendant correctly administered plaintiff’s claim as such. This result

is made clear simply by reading the policy exclusion in light of the

undisputed facts, inserted with brackets: “Injury [May 18, 1999,

infection] which is a direct or indirect result of physical *** infirmity,

illness, or disease of any kind [tear of the right scapholunate ligament

with segmental instability], or medical or surgical treatment therefor

[the May 18, 1999, wrist surgery] *** will be deemed to be Sickness.”

According to the policy, an insured who sustains “accidental bodily

injury” while the policy is in force is entitled to lifetime disability

benefits. As a court construed a similar policy: “An accident is an

unintended occurrence. If such happens during medical treatment, it

is still an accident, but it is not a risk assumed by the insurance

company under the terms of the policy.” Whetsell v. Mutual Life

Insurance Co. of New York, 669 F.2d 955, 957 (4th Cir. 1982)

(applying South Carolina law); accord Dinkowitz v. Prudential

Insurance Co. of America, 90 N.J. Super. 181, 188-89, 216 A.2d 613,

618 (Law Div. 1966).

Pointing to the specific language of the policy limitation, plaintiff

argues that the policy does not consider injury from surgery for any

reason to be a “sickness.” According to plaintiff: “By simply omitting

the term ‘therefor’ after ‘medical or surgical treatment’ this could

have been accomplished. Defendant cannot be correct that Injury from

surgery for any reason is deemed a Sickness because that

interpretation renders ‘therefor’ meaningless.” This argument is

unavailing. The policy exclusion at issue in Dinkowitz was

substantially similar to the limitation in this case: “No such benefit

shall be payable if such death results *** directly or indirectly from

bodily or mental infirmity or disease in any form, or medical or

surgical treatment therefor.” (Emphasis added.) Dinkowitz, 90 N.J.

Super. at 183, 216 A.2d at 614. The court in Dinkowitz enforced the

coverage exclusion in accord with the majority rule.

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Indeed, “[i]t appears that every court that has considered similar

exclusionary clauses has held such provisions to exclude from

coverage death [or disability] caused by various mishaps occurring

during the course of medical treatment.” Whetsell, 669 F.2d at 956

n.1 (collecting cases); see Litman, 289 Ill. App. 3d at 184-87

(discussing cases); Hammer, 214 Conn. at 589-91, 573 A.2d at 707

(collecting cases); Pitman v. Commercial Travellers’ Eastern

Accident Ass’n, 284 Mass. 467, 470, 188 N.E. 241, 243 (1930)

(finding that death of insured from tetanus infection during surgery fell

within exception to accident policy for surgical operation or medical

treatment); J. Zitter, Annotation, What Constitutes Medical or

Surgical Treatment, or the Like, Within Exclusionary Clause of

Accident Policy or Accidental-Death Feature of Life Policy, 56

A.L.R.5th 471 (1998). Plaintiff points to no case that has held medical

mishaps to be covered under such exclusions.

Plaintiff insists that our conclusion is inconsistent with the

reasonable expectations of an insured. However:

“The parties to an insurance contract may incorporate in it

such provisions, not in violation of law, as they choose; and it

is the duty of the courts to construe and enforce the contract

as made. We are not warranted, under the cloak of

construction, in making a new contract for the parties.”

Pioneer Life Insurance, 374 Ill. at 590 (collecting cases).

Reading the policy as a whole, the average policyholder could not

reasonably reach a conclusion of coverage in these particular

circumstances in light of the policy limitation. Applying plaintiff’s

contention would render the policy limitation meaningless, and read

into the insurance contract something that is not there. See Hammer,

214 Conn. at 591, 573 A.2d at 707.

We further observe that plaintiff cannot claim surprise or

unfairness by our holding. The insurance application itself shows that

plaintiff was quite aware, during the application process, that the

policy would limit benefits to five years for a sickness as defined by

the policy. Further, when defendant accepted the application and the

insurance contract was formed, the policy afforded plaintiff a 10-day

“free look” period, during which time he could cancel the policy if its

terms and conditions were unacceptable. However, plaintiff not only

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chose to purchase and keep the policy, but received disability benefits

for five years, pursuant to the policy.

There being no genuine issue of material fact, we conclude that

defendant is entitled to a judgment as a matter of law based on either

of the two above-discussed policy limitations. Accordingly, we hold

that the appellate court properly entered summary judgment in favor

of defendant.

III. CONCLUSION

For the foregoing reasons, the judgment of the appellate court is

affirmed.

Affirmed.

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