In Keusch v. Farm Bureau Ins. Co., unpublished opinion per curiam of the Court of Appeals decided August 30, 2011, (Docket No. 297642), the Court of Appeals held that the David Keusch’s (the decedent) family was not entitled to No-Fault Survivor’s loss benefits, where he over-dosed and died due to a combination of prescription pain medication and cocaine.
In January 2004, the decedent was unloading a large window from a truck when something popped out of place in [his] neck. The decedent immediately felt pain in his left shoulder and left arm. However, this was not decedent’s first accidental injury. As a child, the decedent fell from a tree and broke his neck, and as an adult, the decedent, ruptured a disc in his back during an accident at work in 1996. Because of these injuries, the decedent suffered from a history of chronic pain.
Dr. Richard Kustasz became the decedent’s primary care physician in September 2000 and continued to treat him for severe chronic pain through January 2004 and his subsequent death.
During their first meeting, Dr. Kustasz concluded that the decedent had, among other things, chronic back and neck pain, anxiety, depression, and insomnia. In April 2004, the decedent told Dr. Kustasz that his pain was so severe that he could hardly move.
At the end of 2004, the decedent’s back and neck pain were worse than in previous years. The range of motion of the decedent’s neck was significantly restricted. According to Dr. Kustasz, the decedent’s neck and shoulder pain became even worse because of the window accident in January 2005. In February 2005, the decedent submitted a claim to Farm Bureau for no -fault insurance benefits with respect to the window accident.
On the morning of March 17, 2005, David’s wife Jane Keusch purchased a box of five fentanyl patches, returned home, and gave the box to the decedent. The decedent started to run the bathtub water. Jane said goodbye to the decedent and went to the gym. When she returned she found the decedent lying dead on the bed, wearing a fentanyl patch. Dr. James Banner, the pathologist who performed the decedent’s autopsy, stated that the decedent’s body contained, among other things, cocaine and fentanyl at the time of his death.
Dr. Banner concluded that the cause of the decedent’s death was a mixed drug overdose because he could not decipher which particular drug (cocaine or fentanyl) killed the decedent. The decedent’s treating physician, Dr. Kustasz, opined that the drugs he prescribed to the decedent would not have caused the decedent’s death if the decedent had taken them as prescribed.
However, Dr. Kustasz also opined that the window accident was the triggering event‖ for the stronger medication that he prescribed to the decedent, the decedent’s desire for medication, and the decedent’s self medicating.
Jane Keusch filed a complaint against Farm Bureau, seeking survivor’s loss benefits and alleging breach of contract for Farm Bureau’s refusal to pay personal protection insurance benefits. Jane Keusch’s complaint alleged that, if not for the window accident, the decedent would not have consumed drugs and would not have died. Farm Bureau moved to dismiss the case, arguing that there was no genuine issue of material fact that the decedent’s death was the product of the decedent’s voluntary use of controlled substances in excessive quantities. Thus, Farm Bureau argued that the decedent’s death was not accidental.
Farm Bureau asserted that Keusch’s cause of action was barred because the decedent’s death was proximately caused by his own wrongful conduct his use of illegal drugs. A Bench trial ensued and in January 2010, the trial court issued an opinion and order, granting judgment for Jane Keusch.
The trial Court relied primarily on Chief Justice KELLY’s concurring opinion in Scott v State Farm Mut Auto Ins Co, stating that evidence establishing almost any causal connection will suffice when it is more than incidental, fortuitous or but for. The Court of Appeals reversed stating that Jane The Court of Appeals reversed stating that Jane Keusch failed to establish causation at trial.
In this regard, the Court stated that the evidence presented at trial did not provide a sufficient basis for the trial court to conclude that the fentanyl was more than merely fortuitous, incidental, or but for cause of the decedent’s death. The evidence at trial indicated that the decedent’s death could have arisen from one of three causes: (1) the fentanyl; (2) the cocaine; or (3) a combination of fentanyl and cocaine.