                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0489n.06

                                           No. 16-2517

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Aug 23, 2017
THE ESTATE OF JEFFREY LYNN FILEK,                        )
                                                                             DEBORAH S. HUNT, Clerk
deceased, by the Personal Representative,                )
JEFFREY D. FILEK,                                        )
                                                         )
       Plaintiff-Appellant,                              )
                                                         )       ON APPEAL FROM THE
v.                                                       )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE EASTERN
NATIONAL UNION FIRE INSURANCE                            )       DISTRICT OF MICHIGAN
COMPANY OF PITTSBURGH, PA.,                              )
                                                         )
       Defendant-Appellee.


BEFORE:        SUHRHEINRICH, GILMAN, and McKEAGUE, Circuit Judges.

       SUHRHEINRICH, Circuit Judge.

       Jeffrey Filek, a truck driver, died of a pulmonary embolism while sitting in his cab at a

Missouri truck stop. At the time of his death, Filek was insured for bodily injuries relating to his

job by Defendant National Union Fire Insurance. Defendant denied coverage to Filek’s Estate

for its claim, concluding that Filek’s pulmonary embolism was not a covered bodily injury. The

district court agreed and granted summary judgment to Defendant. We affirm.

                                                 I.

                                                A.

       On the morning of March 2, 2012, while filling out his travel logs at a truck stop in

Missouri, Filek suffered a pulmonary embolism and died. The next day, Dr. Edward Adelstein,

the deputy medical examiner at the University of Missouri, conducted an autopsy.
No. 16-2517, Estate of Filek v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.


       Dr. Adelstein found that Filek was overweight and suffered from significant coronary

artery disease. Nonetheless, Dr. Adelstein decided that these conditions were not the direct

cause of Filek’s death.    After opening Filek’s chest, Dr. Adelstein found a large “saddle

pulmonary embolus” protruding from both of Filek’s pulmonary arteries, and extending into the

small branches of Filek’s lungs. The only trauma Dr. Adelstein found was a superficial abrasion

to Filek’s nose, which Dr. Adelstein attributed to Filek hitting his head on the steering wheel

upon dying. Thus, Dr. Adelstein determined that the large saddle pulmonary embolus was the

cause of death.

       According to Dr. Adelstein, the most common and unifying factor in pulmonary

embolism cases is a very sedentary lifestyle, where one frequently sits for extended periods of

time without getting up. As Dr. Adelstein explained, sitting forces veins in the legs to dilate, and

doing so for long stretches of time without getting up allows blood to pool in the lower

extremities, facilitating the formation of clots. Furthermore, he testified that repeatedly sitting

for long periods of time can cause the veins to become permanently dilated, e.g., varicose veins,

making a person more susceptible to forming blood clots. Thus, Dr. Adelstein identified the

practice of truck drivers sitting for six to eight hours per day as a “significant risk factor for

inducing [pulmonary embolisms],” and stated that pulmonary embolisms are a “normal risk” of

the occupation. He also opined that Filek’s pulmonary embolism was “strongly related to his

choice of occupation.”

       However, Dr. Adelstein also testified that merely sitting for a long period of time,

without necessarily having done so repeatedly in the past, is itself a risk factor for developing

clots. Similarly, Dr. Adelstein could not confirm that Filek’s embolus had formed in his legs,

because he did not open up Filek’s legs, citing his belief that doing so makes preparing a body



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No. 16-2517, Estate of Filek v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.


for funeral almost impossible. Rather, Dr. Adelstein testified that—at least from the exterior—

Filek did not display any signs of permanent vein dilation from repeated sitting, and in fact

looked so healthy from the exterior that, prior to opening his chest, Dr. Adelstein assumed that

Filek had died of a heart attack. Dr. Adelstein also testified that there are many potential causes

of pulmonary emboli, and that Filek’s cardiac disease and generally unhealthy lifestyle were risk

factors for him.

                                                B.

       On March 5, 2012, three days after her husband’s death, Kim Filek filed a claim for

coverage under Filek’s “Truckers Occupation Accident Insurance” policy (the Policy) with

National Union, a subsidiary of AIG. After several rounds of review and an internal appeal,

Defendant denied coverage.

       First, Defendant found that Filek’s death was not covered by the “Occupational Accident

Provision” because there was no evidence that Filek’s “death was due to a bodily injury caused

by an accident.” Second, it found that Filek’s death was not covered by the “Occupational

Cumulative Trauma Provision” because there was no “traumatic assault on the body.” Last,

Defendant found that, even if the pulmonary embolism was a covered injury, coverage was not

proper because it appeared that Filek’s pulmonary embolism “was related to a sickness/disease.”

       The Estate sued in state court, challenging Defendant’s denial of coverage on two

grounds: breach of contract and denial of coverage in bad faith. Defendant removed to federal

court based on the diversity of citizenship between the parties. After the parties filed cross-

motions for summary judgment, the district court granted Defendant’s motion and denied the

Estate’s. This appeal followed.




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No. 16-2517, Estate of Filek v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.


                                                II.

       We review a grant of summary judgment de novo, construing all reasonable inferences in

favor on the nonmoving party—the Estate. Gillis v. Miller, 845 F.3d 677, 683 (6th Cir. 2017).

Summary judgment is appropriate only where the movant shows that there is “no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “Because jurisdiction in this case is based upon diversity of citizenship of the parties, we

apply state law in accordance with the . . . decision of the highest . . . court” of the state from

which this case was removed. Bailey Farms, Inc. v. NOR-AM Chem. Co., 27 F.3d 188, 191 (6th

Cir. 1994). Here that state is Michigan.

                                                A.

       The Estate first challenges the district court’s holding that Defendant did not breach the

contract in denying Filek’s claim. For the Estate to prevail, it must demonstrate that Filek’s

pulmonary embolism is a covered Injury under the Policy, either under the “Occupational

Accident Provision” or the “Occupational Cumulative Trauma Provision.” Additionally, the

Estate must show that Filek’s pulmonary embolism was not related to a sickness or disease.

       Per Michigan law, “we examine the language of the insurance polic[y] and interpret [its]

terms in accordance with well-established Michigan principles of construction.” Frankenmuth

Mut. Ins. Co. v. Masters, 595 N.W.2d 832, 837 (Mich. 1999). Thus, we enforce the Policy

according to its terms, giving those terms their “commonly used meaning.”             Id. (citation

omitted).

                                                1.

       The “Occupational Accident Provision” states that “Injury means bodily injury to an

Insured Person caused by an Occupational accident . . . .” R. 15-2, PID 181 (emphasis added).



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No. 16-2517, Estate of Filek v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.


The Policy does not define the term “accident.” The district court found that Filek’s pulmonary

embolism was the result of his “own internal reaction to the ordinary performance of his job, i.e.,

sitting for a prolonged period of time.” Furthermore, it found that neither prolonged sitting nor a

resulting clot fell into the common meaning of accident—an unusual or unexpected event

external to the insured. Therefore, the district court held that Filek’s injury was not caused by an

accident.

       The Estate alleges that the district court erred because it based its reasoning on two cases

interpreting very similar contract language in the context of passenger air travel. See Air France

v. Saks, 470 U.S. 392 (1985); Bliss v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 132 F. Supp.

3d 676 (D. Md. 2015). In Air France, the Supreme Court found that Article 17 of the Warsaw

Convention —“The carrier shall be liable for . . . any . . . bodily injury suffered by a passenger, if

the accident which caused the damage so sustained took place on board the aircraft . . . .”—

required “an unexpected or unusual event or happening that is external to the passenger” to occur

for liability to arise. 470 U.S. at 397, 405. Similarly, it held that “when the injury indisputably

results from the passenger’s own internal reaction to the usual, normal, and expected operation of

the aircraft, it has not been caused by an accident . . . .” Id. at 406. In Bliss, relying on Air

France, the District Court of Maryland held that insurance-policy language—“National Union

agreed to provide accidental death benefits to its employees if ‘injury to the employee result[ed]

in death within 365 days of the date of the accident that caused the injury,’” and “[i]njury is

defined as ‘bodily injury caused by an accident’”—required an accident independent of the

injury, that was not an “internal, biological process,” for liability to arise. 132 F. Supp. 3d at

679, 682 (internal brackets and citations omitted).




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No. 16-2517, Estate of Filek v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.


       As the district court noted, the language triggering liability in these cases is substantively

the same as the language here: requiring the covered injury to be “caused by” an accident.

Likewise, in Michigan, “[a]n ‘accident,’ within the meaning of policies of accident insurance, . . .

is an undersigned contingency, a casualty, a happening by chance, something out of the usual

course of things, unusual, not anticipated, and not naturally to be expected.” Guerdon Indus.,

Inc. v. Fidelity & Cas. Co. of N.Y., 123 N.W.2d 143, 147 (Mich. 1963) (quoting Couch on

Insurance (2d ed. 1962), § 41:6, p. 26)). Thus, the language of the policy here, like in Air France

and Bliss, states that Defendants will cover bodily injuries that are the result of unanticipated or

unusual events, not bodily injuries that are themselves unanticipated or unusual. Reliance on

these cases, therefore, was not unfounded.

       Here, there was no unanticipated event that caused Filek’s pulmonary embolism. All the

evidence suggests that Filek’s body naturally formed the clot, independent of any unusual or

unanticipated occurrence. Dr. Adelstein described clot formation due to extended sitting as both

a “normal” and “significant risk.” Consequently, under Michigan law sitting in this case cannot

be considered an “accident.” See Guerdon Indus., Inc., 123 N.W.2d at 147.

       The Estate also argues that Filek’s pulmonary embolism should qualify because it was

both a bodily injury and an accident, i.e., an unexpected or unintentional incident. However, to

substitute “pulmonary embolism” for both “bodily injury” and “Occupational accident,” as the

Estate suggests, would make the “Occupational Accident Provision” a tautology: “Injury

[includes] [pulmonary embolism] to an Insured person caused by a [pulmonary embolism].”

This makes no sense. Because Michigan courts read contract provisions according to their clear

meaning, giving effect to every word, we decline to adopt such a reading. See Klapp v. United

Ins. Grp. Agency, Inc., 663 N.W.2d 447, 453 (Mich. 2003).



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No. 16-2517, Estate of Filek v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.


         Thus, we affirm the district court’s conclusion that Filek’s pulmonary embolism cannot

qualify as an Injury under the “Occupational Accident Provision” of the Policy.

                                                          2.

         The Estate also claims that the district court erred in concluding that Filek’s pulmonary

embolism does not qualify as an Injury under the “Occupational Cumulative Trauma

Provision.”1 This argument also fails.

         The “Occupational Cumulative Trauma Provision” states in relevant part that “Injury”

also includes “bodily injury to an insured person caused by the combined effect of repetitive

Occupational activities extending over a period of time, where . . . such activities resulted

directly and independently of all other causes in a Covered Loss.” R. 15-2, PID 181 (emphasis

added). Filek’s pulmonary embolism is not entitled to coverage under this provision for two

reasons.

         First, there is no trauma here. “Trauma” is defined as “an injury (such as a wound) to

living     tissue    caused      by    an     extrinsic     agent.”         Trauma,       Merriam-Webster.com,

http://www.merriam-webster.com/dictionary/trauma (last visited July 10, 2017). To say that

sitting fits within this definition is a stretch.

         Second, there is no evidence in the record that Filek’s pulmonary embolism was caused

directly from him repeatedly sitting for extended periods of time. Dr. Adelstein testified that

sitting for a long period of time creates a risk for anyone to develop clots in their legs that can

turn into pulmonary emboli. And although he testified that frequently sitting for extended

periods of time can cause the veins to permanently dilate, e.g., varicose veins, and make one


1
 Defendant argues that the Estate did not properly present this argument to the district court. We disagree. In its
motion for summary judgment, the Estate brought the relevant portion of the contract to the district court’s attention.
Furthermore, at oral argument for summary judgment, defense counsel and the court argued at length over the
provision, as they both apparently believed the argument was before the court.

                                                          -7-
No. 16-2517, Estate of Filek v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.


more susceptible to forming blood clots, Dr. Adelstein did not find any evidence of such

permanent damage here. Dr. Adelstein testified that the exterior of Filek’s legs looked healthy

and dissimilar from legs which are prone to forming clots in them, so much so that before

actually examining Filek’s heart and lungs he had assumed Filek died of a heart attack. Thus,

combined with the fact that Dr. Adelstein did not examine the interior of Filek’s legs and veins,

or actually determine that the embolus was formed in his legs, there is no evidence in the record

that Filek’s repeated extended sitting directly and independently resulted in his pulmonary

embolism.

         Consequently, we find that denial of coverage was proper. Furthermore, because Filek’s

pulmonary embolism is not a covered Injury, we need not address whether it is a sickness or

disease.

                                                         B.

         Finally, the Estate challenges the district court’s dismissal of its bad-faith claim from the

bench at oral argument. It alleges that all of Defendant’s claim adjusters “stretched the contract

language to find the pulmonary embolism to be a ‘sickness’”; were “determined” not to classify

Filek’s pulmonary embolism as an accident, notwithstanding Dr. Adelstein’s testimony; and

failed to seek independent medical review in arriving at a decision. Appellant’s Br. at 33-36.2

         The Estate’s bad faith claim rests on the assumption that coverage was improperly

denied. However, as we have shown, denial here was proper. Therefore, we need not address

this claim.




2
  In its reply brief on appeal, the Estate also argues that Defendant acted in bad faith by not defining the term
“accident” in the contract and thereby intentionally creating an ambiguity. Appellant’s Reply Br. at 8. Because this
argument is raised for the first time both on appeal and in a reply brief, we deem it waived. Overstreet v. Lexington-
Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002).

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No. 16-2517, Estate of Filek v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.


                                               III.

       As the district court noted, “Filek purchased occupational accident insurance, not life

insurance, and the premium he paid likely reflected the much more limited nature of the

coverage. ‘Under [Plaintiff’s] interpretation, almost any death would be an accident and the

Court would effectively transform this accidental death benefit into a life insurance policy.’”

R. 26, PID 803 (quoting Bliss, 132 F. Supp. 3d at 683 (internal quotation marks and citation

omitted)). Thus, for the aforementioned reasons, we affirm the judgment of the district court.




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