Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC292884 George H. Wu, Judge.
Law Offices of Christian J. Garris and Christian J. Garris for Plaintiff and Appellant.
Barger & Wolen, Martin E. Rosen and Robert E. Hess for Defendant and Respondent.
KLEIN, P. J.
Plaintiff and appellant Essie Evans (Evans) appeals a judgment following a grant of summary judgment in favor of defendant and respondent Mutual of Omaha Insurance Company (Mutual) in an action for breach of contract and bad faith arising out of Mutual’s refusal to pay benefits under an accident insurance policy.
On the evening of June 1, 1998, Evans’s late husband, Freddie Evans (decedent) went to a casino in San Manuel to play poker. After concluding the evening, he stood up to say goodbye to his friends and suddenly died of a heart attack. Evans contends she is entitled to death benefits under the accident policy because the cause of death was “a heart attack that struck suddenly and unexpectedly without any design of [decedent].”
Previously, Evan also sought and obtained death benefits on account of decedent’s death through the workers compensation system. In the proceeding before the Workers Compensation Appeals Board (WCAB), Evans asserted the cause of death was “cumulative occupational stress & strain causing injury to heart & cardiovascular resulting in death on 06/01/98.”
The record reflects decedent was employed for 26 years as a vocational instructor at a youth correctional facility.
Because Evans has previously, and successfully, argued to another tribunal that decedent’s death was due to cumulative job stress over a period of many years, Evans is judicially estopped from asserting the loss of life was an “accidental result of standing” so as to entitle her to benefits under the accidental death policy. Therefore, the judgment in favor of Mutual is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Proceedings.
a. Pleadings.
On March 27, 2003, Evans filed suit against Mutual for breach of contract and breach of the implied covenant of good faith and fair dealing arising out of Mutual’s refusal to pay death benefits under a $315,000 accident insurance policy, a copy of which was appended to the complaint.
The policy provides benefits for “accidental bodily injuries.” Evans alleged she was entitled to benefits under the policy because, “[a]fter concluding his evening with his friends at the casino, [decedent] got up to say goodbye to his friends and suddenly died due solely to a heart attack that struck suddenly and unexpectedly without any design of [decedent].”
b. Mutual’s motion for summary judgment.
On or about February 3, 2006, Mutual filed a motion for summary judgment, contending the cause of action for breach of contract must fail because there was no coverage under the policy. Simply stated, “[d]ecedent’s ‘stood up from the table and had a heart attack’ death” as a matter of law was not accidental.
Mutual further argued that regardless of what Evans now asserted, she previously had conceded before the WCAB that it was “the long lingering ‘cumulative . . . stress and strain’ to his heart” that precipitated decedent’s heart attack and death. Mutual averred that Evans was barred by judicial estoppel from now taking a legal position diametrically opposed to the position she took in another tribunal.
With respect to the issue of judicial estoppel, the parties’ respective separate statements of undisputed facts established the following undisputed facts: Evans sought death benefits on account of decedent’s death in the workers compensation system. In the WCAB proceeding, on April 19, 1999, Evans asserted that decedent “ ‘sustained injury arising out of and in the course of employment to cardiovascular system/heart.’ ” In that proceeding, Evans asserted decedent “suffered ‘cumulative occupational stress & strain causing injury to heart & cardiovascular resulting in death on 6/01/98,’ ” and that the cause of death occurred cumulatively over 26 years, from “4/17/72 - 6/1/98.” (Italics added.) On March 30, 2001, the WCAB awarded Evans benefits on said claim.
Mutual’s motion further contended the cause of action for bad faith must fail because, where there is no coverage under the policy, no policy benefits were wrongfully withheld.
c. Evans’s opposition papers.
In her opposition papers, Evans argued an accidental death policy only requires that death be unexpected or unintended and there is no additional requirement of external force. According to Evans, her claim was covered under the policy because decedent’s death “was neither ‘expected’ nor ‘intended.’ ” The act of standing up by decedent “was an intentional act but that does not defeat coverage under an ‘accidental death’ policy where it is the results that must be accidental, not the means.”
Evans did not respond to Mutual’s judicial estoppel argument. Evans did not dispute Mutual’s undisputed facts relating to the WCAB proceeding but contended those facts were irrelevant.
d. Trial court’s ruling.
Following extensive briefing and oral argument, the trial court issued a “statement of decision” setting forth its reasons for granting summary judgment in favor of Mutual. The trial court held there was no coverage under the policy because “[a] heart attack suffered at rest is not an accident under an accidental death and dismemberment policy.”
Because the trial court granted summary judgment on the ground of no coverage under the policy, it indicated there was no need to consider the issue of judicial estoppel.
Thereafter, Evans filed a timely notice of appeal from the judgment in favor of Mutual.
CONTENTIONS
Evans contends: her claim is covered under the subject policy because the cause of death was neither “expected” nor “intended” – decedent’s death was unexpected and unintended and no other external, unexpected force is required. Evans further contends Mutual acted in bad faith.
Mutual, in turn, contends death caused by a heart attack suffered at rest is not covered under decedent’s accident policy, and in any event, Evans is judicially estopped by her argument before the WCAB that decedent’s death was due to cumulative stress over a long period of time.
DISCUSSION
1. Standard of appellate review.
Summary judgment “motions are to expedite litigation and eliminate needless trials. [Citation.] They are granted ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ [Citations.]” (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590.)
A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Code Civ. Proc., §437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Ibid.)
We review the trial court’s ruling on a motion for summary judgment under the independent review standard. (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.) Therefore, although the trial court based its grant of summary judgment on the ground of lack of coverage, we make our own determination as to whether summary judgment is proper. “[T]he trial court’s stated reasons for its ruling do not bind us. We review the ruling, not its rationale.” (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731.)
2. Mutual is entitled to summary judgment on the ground of judicial estoppel.
a. General principles.
“ ‘ “Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies. [Citation.] Application of the doctrine is discretionary.” ’ [Citation.] The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citations.]” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987, italics added.)
In opposing summary judgment, Evans did not argue her position in the workers’ compensation proceeding was the result of ignorance, fraud or mistake. Evans simply ignored the issue of judicial estoppel.
b. Policy provisions.
The subject accident policy provides coverage for specified injuries. Under DEFINITIONS, the policy states: “ ‘Injuries’ means accidental bodily injuries received while insured under this certificate. They must result in covered loss independently of sickness and other causes.” (Italics added.)
The policy provides benefits for “specific losses because of injuries within 12 months from the date of the accident . . . .” The enumerated losses include loss of life as a result of an accident.
c. Having conceded the fatal heart attack was caused by cardiovascular disease which developed over a 26-year period of employment, Evans is barred by judicial estoppel from asserting the fatal heart attack was an accidental bodily injury resulting from standing up after an evening of casino gambling.
As indicated, Evans successfully asserted in the WCAB proceeding that decedent “sustained injury arising out of and in the course of employment to cardiovascular system/heart.” In that proceeding, Evans asserted decedent suffered “cumulative occupational stress & strain causing injury to heart & cardiovascular resulting in death on 6/01/98,” and that the cause of death occurred cumulatively over 26 years, from “4/17/72 - 6/1/98.” (Italics added.) In other words, Evans previously has taken the position that decedent’s fatal heart attack was an occupational injury and that the heart attack was the end result of a cardiovascular/heart disease process which developed cumulatively over a 26-year period of employment.
Evans’s current theory that decedent’s fatal heart attack death was “an accidental result of standing” (italics added) is diametrically opposed to her position in the workers compensation proceeding. Evans is judicially estopped from taking these inconsistent positions. (Aguilar v. Lerner, supra, 32 Cal.4th at pp. 986-987.) Evans’s previous claim the fatal heart attack was the result of “cumulative occupational stress & strain causing injury to heart & cardiovascular resulting in death” bars Evans from recovering under the policy, which affords coverage for “accidental bodily injuries . . . independent[] of sickness and other causes.” (Italics added.)
In Gin v. Pennsylvania Life Ins. Co. (2005) 134 Cal.App.4th 939, the court held that carpal tunnel syndrome which developed from the repetitive trauma of typing at a computer keyboard did not constitute an “ ‘accidental bodily injury’ ” as required for benefits under a disability policy. (Id. at pp. 940.) Gin quoted with approval from the Supreme Court’s decision in Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co. (1959) 51 Cal.2d 558, 564, that “ ‘a series of imperceptible events that finally culminated in a single tangible harm’ ” does not constitute an accident. (Gin, supra, 134 Cal.App.4th at p. 945.) Gin also relied, inter alia, on Khatchatrian v. Continental Cas. Co. (9th Cir. 2003) 332 F.3d 1227, 1228, which held that “where stroke was caused by insured’s chronic high blood pressure, injury from stroke was not an ‘accident’ under the Geddes & Smith analysis.” (Gin, supra, 134 Cal.App.4th at pp. 944-945.)
The Gin court reasoned: “Typing at a keyboard was an activity in which Gin normally engaged. It did not become an ‘accident’ merely because the cumulative effect of a long period of typing was the onset of carpal tunnel syndrome. (See Williams [v. Hartford Accident & Indemnity Co. (1984)] 158 Cal.App.3d [229,] 234-235, [jogging was not an activity that could be characterized as ‘accident’ even though it may have set in motion events leading to injury]; Alessandro [v. Massachusetts Cas. Ins. Co. [(1965)] 232 Cal.App.2d [203,] 210 [no evidence of accidental occurrence where ‘injury was the end result of a long existing degenerative disease’].) Because Gin’s disability was not the result of ‘accidental bodily injury’ as that term is understood in California law, it falls outside of the coverage of the policy.” (Gin v. Pennsylvania Life Ins. Co., supra, 134 Cal.App.4th at p. 945.)
In the instant case, having conceded the fatal heart attack was caused by cardiovascular disease which developed cumulatively over a 26-year period of employment, Evans is barred by judicial estoppel from asserting the loss of life was an accidental bodily injury“independent[] of sickness and other causes.” On this record, Evans is precluded from characterizing decedent’s death as the unexpected and unintended result of “standing up” after an evening of casino gambling.
It is not until her reply brief on appeal that Evans acknowledges the issue of judicial estoppel. There, Evans argues her assertion in the WCAB proceeding that decedent suffered from stress for many years is “irrelevant” to the issues in this case because there is no evidence that decedent knew of his condition such that his death would be “expected,” and in any event, there is no evidence presented as to the actual findings in the workers compensation process.
Evans’s attempt to dismiss the workers compensation proceedings as an irrelevancy is merit less As explained, she is bound by her successful position therein that decedent’s death was the result of “cumulative occupational stress & strain causing injury to heart & cardiovascular” occurring over a 26-year period of employment. Obviously, the WCAB was persuaded by Evans’s position – otherwise, it would have denied death benefits. Evans cannot now claim the death was the accidental result of standing up after an evening of casino gambling, “independent[] of sickness and other causes” (italics added), as required under the policy. This court cannot turn a blind eye to the position taken by Evans in the workers’ compensation proceeding. Accordingly, Mutual is entitled to summary judgment on the ground of judicial estoppel.
3. The position asserted by Evans in the workers compensation proceeding disposes of the coverage issue.
Evans argues at length the subject policy was an accidental death policy, not an accidental means policy, and therefore all that is required for coverage under the policy is that decedent’s death was unexpected and unintended. The argument does not meet the issue because the instant policy expressly excludes “sickness” from among the risks assumed, and Evans admitted in the workers compensation proceeding that the fatal heart attack was caused by occupational disease which developed over a 26-year period.
To reiterate, the subject policy provides coverage for specified injuries. Under DEFINITIONS, the policy states: “ ‘Injuries’ means accidental bodily injuries received while insured under this certificate. They must result in covered loss independently of sickness and other causes.” (Italics added.)
It is well settled that “ ‘[a]n insurer may select the risks it will insure and those it will not, and a clear exclusion will be respected. [Citation.] Where the exclusion is clear, we will not rewrite the insurance contract to impose coverage where none was contemplated. [Citation.]’ ” (Pacific Indemnity Co. v. Bellefonte Ins. Co. (2000) 80 Cal.App.4th 1226, 1234.) Moreover, “ ‘[t]he insurer, under an accident policy, is not liable for death by mere disease, even in the absence of the usual clause expressly excluding disease from among the risks assumed.’ [Citation.]” (Zuckerman v. Underwriters at Lloyd’s (1954) 42 Cal.2d 460, 475, italics added.)
Here, Evans admitted in the workers compensation proceeding that the fatal heart attack was caused by occupational disease which developed over a 26-year period. Therefore, Evans cannot establish there was a covered loss “independent[] of sickness and other causes,” as specified in the policy.
Finally, Evans’s reliance on Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432 (Slobojan), is misplaced. That case is clearly distinguishable.
There, the accidental death benefit provision stated in pertinent part “that the death of the insured must have ‘resulted directly and independently of all other causes from bodily injuries caused by accident . . . ’ and must not have resulted from ‘disease’ or ‘bodily or mental infirmity.’ ” (Slobojan, supra, 70 Cal.2d at p. 442.) The lower court “found that on the date Slobojan died he was on regular duty as a deputy sheriff on patrol car assignment, and started a chase on foot after a crime suspect, through fence-enclosed backyards of a residential neighborhood; that the chase involved running and fence climbing, and while so engaged, Slobojan tripped and fell; that the chase had covered a distance of approximately 700 feet, when Slobojan collapsed to the ground and died; that an autopsy disclosed a preexisting mild atherosclerosis, but that such condition was non-manifest and non-disabling; that the chase created an unusual physical stress and strain on Slobojan’s entire body, which was involuntary, reasonably unexpected and unanticipated by Slobojan and resulted in injury, accidental in origin; that such accidental injury was a prime moving cause of an acute myocardial ischemia and resulted ultimately in Slobojan’s death.” (Id. at p. 442, italics added.)
The high court upheld the trial court’s ruling “that Slobojan met an accidental death. . . . . ‘[T]he correct rule [is] that the presence of preexisting disease or infirmity will not relieve the insurer from liability if the accident is the proximate cause of death; and that recovery may be had even though a diseased or infirm condition appears to actually contribute to cause the death if the accident sets in progress the chain of events leading directly to death, or if it is the prime or moving cause. [Citations.]’ ” (Slobojan, supra, 70 Cal.2d at p. 443, italics added.)
In the instant case, there was no evidence that decedent’s death was preceded by any “unusual physical stress or strain” on decedent’s body. (Slobojan, supra, 70 Cal.2d at p. 442.) The undisputed evidence is that after concluding an evening with his friends at a casino, decedent stood up to say goodbye to his friends and suddenly died. Unlike the fact situation in Slobojan, decedent suffered a fatal heart attack at rest, as a consequence of his longstanding occupational disease – the heart attack was not the result of any unusual physical exertion.
In sum, given the language of the policy, Evans’s admissions in the workers compensation proceeding, and the circumstances of decedent’s death, Evans cannot show that decedent suffered an accidental death within the meaning of the policy.
DISPOSITION
The judgment is affirmed. Mutual shall recover its costs on appeal.
We concur: CROSKEY, J., KITCHING, J.