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North American Insurance Co. v. Kemper National Insurance Co.

Case Date: 03/09/2001
Court: 1st District Appellate
Docket No: 1-98-2673 Rel

March 9, 2001

1-98-2673


NORTH AMERICAN INSURANCE COMPANY,

          Plaintiff-Appellant,

                    v.

KEMPER NATIONAL INSURANCE COMPANY
and AMERICAN MOTORIST INSURANCE
COMPANY,

          Defendants-Appellees.

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)		 Appeal from the
Circuit Court
of Cook County


No. 94 CH 11314


Honorable
Stephen Schiller,
Judge Presiding.


JUSTICE REID delivered the opinion of the court:

This matter originally arose out of an insurance dispute filed as a declaratory judgmentaction in the circuit court of Cook County. The matter was disposed of by the trial court ondefendant American Motorist Insurance Company's (American Motorist) motion for summaryjudgment. Defendants American Motorist and Kemper National Insurance Company (Kemper)are hereinafter collectively referred to as defendants. The trier of fact found no genuine issues ofmaterial fact in this controversy. We disagree and, therefore, reverse.

I

Defendant American Motorist issued a workers' compensation insurance policy to Dycast,Inc. North American Insurance Company (North American), a group health insurer, issued ahealth insurance policy to Dycast. Daniel Ferguson was employed by Dycast and covered underboth policies.

Ferguson and his heirs claimed he was injured in the course of his employment whilelifting a large object, though multiple workers' compensation adjustment-of-claim forms reflectconfusion as to the exact nature of the object. Ferguson was treated for his injuries and hispreexisting conditions at Sherman Hospital, Loyola's Foster G. McGraw Hospital and by doctorsassociated with Loyola. This treatment resulted in substantial medical expenses. A dispute aroseas to whether the injuries were work related and therefore covered under the American Motoristworkers' compensation policy. Ferguson, in addition to having been injured, had medical issuesrelated to a prior kidney transplant. He was, according to Dr. William J. Cahill, rejecting thekidney on a chronic basis. Ferguson was being treated on a long-term basis with medication tocombat chronic rejection. Additionally, Ferguson was considered a diverticulitis patient, whichDr. Cahill opined was a contributing factor to his problems and certainly contributed to his death.

North American paid the medical providers pursuant to a specific and aggregate stop losscontract, which is an excess policy of group health insurance issued on Dycast's self-insuredEmployee Retirement Income Security Act (ERISA) plan. 29 U.S.C.