Phila. judge dismisses insurance suit by widow of former Flyers player Dmitri Tertyshny

By Jon Campisi | Dec 19, 2013

A state judge has dismissed an insurance dispute case brought by the widow of a former player for the Philadelphia Flyers, ruling that the plaintiff’s claims are barred by a statute of limitations.

A state judge has dismissed an insurance dispute case brought by the widow of a former player for the Philadelphia Flyers, ruling that the plaintiff’s claims are barred by a statute of limitations.

Philadelphia Common Pleas Court Judge Albert John Snite, Jr., in a Dec. 13 opinion, granted a summary judgment motion that had been filed by Standard Security Life Insurance Company of New York, HCC Specialty Underwriters Inc., and American Specialty Underwriters Inc. in a case brought by Polina Tertyshnaya in the spring of 2010.

The plaintiff, who sued on behalf of her son, Alexander Tertyshny, claimed that the defendants failed to pay accidental death benefits to her following the death of her husband, Dmitri Tertyshny.

Dmitri, who had played professional hockey for the Flyers, died in July 1999 while attending a summer training camp in Canada.

According to past news reports, Dmitri died in a freak boating accident in which he fell overboard after the boat on which he was riding struck a wave.

While in the water, the boat’s propeller slashed through the 22-year-old Russian native, slicing his jugular vein and carotid artery, causing Dmitri to bleed to death.

The widow alleged she never received accidental death and dismemberment benefits in the wake of her husband’s death.

Polina Tertyshnaya claimed in her suit that the insurers “stonewalled” her requests for copies of the insurance policy to “discourage, interfere with, and avoid their obligations under the policy and fraudulently or recklessly concealed the policy from Plaintiff.”

The woman’s suit contained counts including breach of contract, bad faith, negligence and unjust enrichment.

A handful of the claims were governed by a four-year statute of limitations while one, the alleged violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, was governed by a six-year statute of limitations, the record shows.

In her complaint, the plaintiff claimed she and her husband obtained a policy of disability and accidental death and dismemberment insurance with respect to Dmitri Tertyshny in March 1999 and that she applied to be a beneficiary under the policy at that same time.

After learning about Dmitri’s death, the defendants went to cancel the man’s disability policy, with an insurance representative sending to the former hockey player’s agent a refund for the unused premium for permanent total disability benefits, the record shows.

At that time, Snite’s opinion states, the plaintiff was on notice that “no death benefits were included in the policy and that no death benefits were to be issued by Insurance Defendants.”

The woman didn’t contact the insurers about the existence of a policy for Dmitri providing accidental death benefits until December 2008, the judge’s memorandum states.

“Barring exception, the statute of limitations began to run no later than Insurance Defendants’ communication with Jay Grossman on August 30, 1999,” Snite wrote, referring to the former player’s sports agent.

Snite wrote that the plaintiff’s bad faith, fraudulent misrepresentation, negligent misrepresentation and negligence claims would have been governed by a two-year statute of limitations, meaning they must have been brought no later than August 2001.

Her declaratory relief, breach of contract, and unjust enrichment claims, subject to a four-year statute of limitations, needed to be brought by August 2003, and the count alleging a violation of the state’s Unfair Trade Practices and Consumer Protection Law, governed by a six-year statute of limitations, had to be brought by August 2005, the judge wrote.

The plaintiff, he said, didn’t contact the insurance companies until late 2008 and she didn’t bring her lawsuit until May 2010.

An exception to the statute of limitations is the fraudulent concealment doctrine, but Snite said the plaintiff’s allegations in this case are not sufficient to support her assertion that the statute of limitations should have been tolled.

“When Plaintiff contacted Insurance Defendants in December of 2008 inquiring as to why death benefits were not paid, the statute of limitations had expired for all of Plaintiff’s claims,” Snite wrote. “In this case, the assertions of the doctrine of fraudulent concealment cannot revive the statute of limitations.”

Snite wrote that the plaintiff produced no “coherent facts indicating that Insurance Defendants affirmatively concealed ‘a death policy.’”

The judge wrote that there was also no evidence that the insurance companies produced a back-dated policy.

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