The plaintiff traveled to West Texas twice in connection with his job, and developed a fungal infection in his right eye that was diagnosed as coccidioidomycosis. Medical providers determined that contact with a West Texas fungus caused the infection, which led to progressive loss of vision, and the ultimate removal of that eye. Disability benefits were denied based on the definition of “Accident” in the relevant policy: “a sudden, unexpected, unforeseeable and unintended event, independent of Sickness and all other causes.”  The policy goes on to make clear that: “Accident does not include Sickness, disease, bodily or mental infirmity or medical or surgical treatment thereof, bacterial or viral infection, regardless of how contracted. Accident does include bacterial infection that is the natural and foreseeable result of an accidental external bodily Injury or accidental food poisoning.”  The term “Sickness” is then defined as: “a disease, disorder or condition, which requires treatment by a Physician.” The District Court granted summary judgment in favor of the insurer, and the Court of Appeal affirmed.

The Court notes that where “the policy language is ambiguous, then the court should construe the policy against the drafter, United, under the rule of contra proferentem.”   But, because the policy terms are unambiguous, the contra proferentem rule does not apply.

The plaintiff “asserts that the policy removes only bacterial and viral infections from the definition of ‘Accident’ and therefore that ‘Accident’ must include other microbial sources of infection, including fungus. Ramirez interprets ‘Accident’ as including all infections that cause injury other than ‘bacterial or viral infection’ ….  However, other terms, such as a ‘bodily or mental infirmity’ and ‘Sickness’, encompass a fungal infection, and therefore, the provision regarding bacterial or viral infections cannot be read to remove fungal infections by implication from those terms.

“Ramirez contends that the policy must cover a fungal infection because a fungal infection is analogous to food poisoning. Fungal infections, like food poisoning, are unpredictable in contraction and effect and require medical care…. However, to construe the accidental death and dismemberment policy as Ramirez urges us to do would mean that the flu, strep throat, fungal pneumonia, and many other bacterial, viral, and fungal infections would also be analogous conditions because they too are unpredictable and require medical care.”

The plaintiff also “argues that the definition of ‘Sickness’ must be limited to preexisting sicknesses” as “to conclude otherwise means that virtually all injuries could be considered a ‘Sickness’ if the employee requires any treatment from a physician prior to the actual dismemberment. But the definitions of Accident, Injury, and Sickness, when considered as a whole, make clear that if an employee were to suffer the near loss of a limb, for example, and were eventually to lose the limb after prolonged treatment by a physician, there would be coverage. The policy’s extension of coverage does not turn on whether the death or loss was caused by a condition that arose after the inception of the policy. Rather, the nature and cause of the loss determine whether there is coverage.”

Finally, the plaintiff “vaguely asserts that the sudden contact with the fungus itself is an ‘Accident’ that the policy should cover. Even if we were to agree that the acute inhalation of the fungal spores was ‘a sudden, unexpected, unforeseeable and unintended event,’ the resulting loss of his eye was not ‘independent of Sickness’ as defined in the policy.”

 

Ramirez v. United of Omaha Life Insurance Company, No.16-11660, 2017 WL 4455267 (5th Cir. Oct. 6, 2017).