On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1619-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Plaintiff Jeffrey Paul, decedent Richard Paul's son, appeals from the
trial court order granting summary judgment dismissing his complaint
in which he sought to recover the accidental death benefits (ADB)
payable under an insurance policy issued to Richard*fn1
by defendant New York Life Insurance Company. The motion
judge determined that Richard's death was not accidental within the
meaning of the policy language precluding recovery of benefits. We
Richard, at the time of his death, was a nursing home resident. He suffered from a number of chronic medical conditions, including chronic heart failure, chronic obstructive lung disease, and atrial fibrillation. On December 27, 2007, a nurse employed by the nursing home mistakenly gave him another resident's medication. After the error was discovered, Richard was transferred to the intensive care unit of a nearby hospital. His condition quickly deteriorated and he died on January 5, 2008. The death certificate listed the cause of death as lymphoma.
Plaintiff retained the services of Donald J. Corey, M.D., board-certified in internal medicine, who prepared two reports.
In his first report, Dr. Corey expressed the opinion that within a reasonable degree of medical certainty, "the administration of the incorrect medications had a direct causative role in [Richard]'s death[.]" In his second report authored several months later, he opined:
[T]he medications that [Richard] received in error caused a significant change in his mental status where he became lethargic and obtunded. . . . This significant decline in his level of alertness caused an inability to swallow and clear secretions, probably resulting in an aspiration pneumonia. This was a significant insult to a frail and vulnerable individual with several serious chronic medical problems. This insult caused a marked decline in [Richard]'s general medical condition and he died shortly thereafter. I found no evidence . . . that his lymphoma had recurred. With a course of physical and occupational therapy as well as ongoing treatment of his chronic medical problems, [Richard] could have continued living. The medication error that occurred . . . resulted in his death unnecessarily.
At the time of his death, Richard had a life insurance policy with defendant valued at $5,000. He added the ADB rider, which is valued at $25,000. The ADB defined "accidental death" as death occurring while you are insured under the POLICY and the ADB RIDER, that results solely from an accidental injury and: (a) such death is not excluded in the Exclusions section; (b) such death occurs within 365 days of such accidental injury; (c) such accidental injury occurs while YOU are insured under the POLICY and RIDER; and (d) such death is the direct result of the accident and is independent of all other causes.
The following exclusions were included in the ADB rider:
The Accidental Death Benefit is not payable . . . if YOUR death is the result of one of the following: . . . (d) death that is caused or contributed to, by disease or infirmity, except for bacterial infections resulting directly from an accidental wound;
(e) use of a drug unless prescribed or administered by a doctor and taken in accordance with a doctor's instructions . . . (g) sickness or its medical or surgical treatment or diagnosis.
In February 2008, defendant paid $5,027.81 to plaintiff, the named beneficiary under the policy, but denied his claim for the $25,000 under the ADB rider. Plaintiff filed a complaint against ...