Bergera v. Ideal Nat. Life Ins. Co.

• Decision Date: 16 July 1974
• Docket Number: No. 13525,13525
• Citation: 524 P.2d 599
• Parties: Grace BERGERA, Plaintiff and Appellant, v. IDEAL NATIONAL LIFE INSURANCE COMPANY, Defendant and Respondent.
• Court: Utah Supreme Court

Page 599

524 P.2d 599

Grace BERGERA, Plaintiff and Appellant, v.IDEAL NATIONAL LIFE INSURANCE COMPANY, Defendant and Respondent.

No. 13525.

Supreme Court of Utah.

July 16, 1974.

S. V. Litizzette, Helper, for plaintiff and appellant.

John S. Boyden and Scott C. Pugsley of Boyden & Kennedy, Salt Lake City, for defendant and respondent.

ELLETT, Justice:

The plaintiff is the beneficiary of a life insurance policy containing a double indemnity provision in case of the accidental death of the insured.The insured died of injuries received while serving in the army of the United States in Vietnam.He was fatally injured when he accidentally detonated a mechanical ambush device while returning to a night defensive position.At the time, the United States had a great number of military personnel engaged in personal combat operations against soldiers of North Vietnam.

The policy of insurance contained the following provision:

RISKS NOT COVERED

No benefit will be paid if death results directly or indirectly from:

2.War, any act of war, or service in an armed force of any international organization, or any country or combination of countries at war ('act of war' means any act peculiar to military operations in time of war);

Each party to this action moved for summary judgment, and the trial court ruled in favor of the defendant.This appeal followed, and the only question involved is this: Was the military operation of our armed forces in Vietnam 'war' within the meaning of the exclusionary provision of the policy?

The policy is merely a contract between the insured and the insurer.Its language should be construed pursuant to the same rules as are applied to other ordinary contracts, to wit: What did the parties thereto intend by the language used?Of course, any ambiguities will be construed against the insurer, since the policy was drawn by it.Words should be given their usual and ordinarily accepted meaning.¹

To begin our inquiry into the meaning of the exclusion, we should consider the basis for the premium charged for the accidental death provision in the policy.Ordinarily the premiums are based upon the hazards encountered by ordinary people subjected to ordinary hazards, and if the policy is not to cover extra hazardous situations, the insurer must so state.If those unusually hazardous exposures are to be covered, the insurer will charge extra premiums to cover the contingencies.

The insurer in the present matter undertook to exclude death occasioned by (a) war, (b) any act of war, or (c) service in an armed force of any international organization, or any country or combination of countries at war.Since there was an exclusion, no extra premium was required.

There were armed forces from a number of countries engaged in deadly combat in Vietnam.In fact, the United States Armed Forces numbered 543,000 men at one time and sustained loss of lives of 46,079 as a result of its military operations.²

By the Tonkin Gulf Resolution the Congress of the United States authorized the President to conduct military operations in Southeast, Asia, and while there never was a formal declaration of war by Congress, there certainly was war in every sense of the term so far as the men who fought it were concerned.There was the extra hazardous situation for the insured exactly the same as if Congress had declared that a state of war existed, and that extra hazardous risk would not have been either augmented or diminished one iota by such a declaration insofar as this defendant insurer was concerned.

The term 'war' as defined in Black's Law Dictionary means 'hostile contention by means of armed forces, carried on between nations, states, or rulers, . . ..A contest by force between two or more nations, carried on for any purpose, . . ..'

The American Heritage Dictionary defines the word 'war' as a state of open, armed, often prolonged conflict, carried on between nations, states, or parties.

When there has been a declaration of war by Congress and hostilities have ceased, the exclusion in insurance policies regarding death in 'war' is not effective even though peace has not been determined.³This clearly indicates that it is the confrontation of the military forces rather than mere declaration of words which has been the determining factor in determining the meaning of the word 'war' in insurance policies.

While there are some cases holding that the exclusion of coverage because of war must be a declared war, the greater weight of authority and the better reasoned cases hold that a war in fact is sufficient to exclude coverage where the insured was killed in an undeclared war.Examples follow.

In Langlas v. Iowa Life Ins. Co., 245 Iowa 713, 63 N.W.2d 885(1954), the insured was killed during combat duty in Korea.The Iowa Supreme Court held that the Korean conflict was a 'war' within the meaning of the exclusionary provisions of the policy although it was never a declared war.

In the case of Zaccardo v. John Hancock Mutual Life Insurance Co., 20 Conn.Sup. 76, 124 A.2d 926(1956), the Connecticut court held that the exclusionary provision of a policy was in effect since the Korean war was a war whether declared or undeclared.

Weissman v. Metropolitan Life Ins. Co., 112 F.Supp. 420(S.D.Cal.1953), was a case where the insured lost his life in Korea.In a well reasoned and documented case, the court held that the exclusion was effective as the United States was at 'war' within the meaning of the policy.

In another case⁴ a 19-year-old prisoner of war in Korea made a will which under the statute would not have been admitted to probate had not we been at 'war.'The will was admitted to probate because, as the court said, the United States was at war within the meaning of the Wills Act.

Another case identical to the instant one is Stanbery v. Aetna Life Ins. Co., 26 N.J.Super. 498, 98 A.2d 134(1953).There, as here, the soldier lost his life in a mine explosion.The court said:

The word 'war' when used in a private contract or document should not be construed on a public or political basis, in a legalistic or technical sense, but should be given its ordinary, usual and realistic meaning, viz., actual hostilities between the armed forces of two or more nations. . . .

The conflict still reging in Korea is a war in the ordinary and usual meaning of the word, and it was such on March 27, 1952, when the insured met his untimely death. . . .

Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554(1953), is a case which fully discusses the question of when a war is a war.In holding that the insured died 'in time of war' within the meaning of the policy the court said:

Undoubtedly there may be war or a state of war without a declaration of war by the department of government clothed with the war-making power.Justice Jackson, in his concurring opinion in the steel mills seizure case said: 'Of course, a state of war may in fact exist without a formal declaration.'Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 873, 96 L.Ed. 1153, 1202--1203, 26 A.L.R.2d 1378;Edwin Borchard, discussing under the title 'When Did the War Begin', the decision of the United States Circuit Court of Appeals in New York Life Insurance Company v. Bennion, 10 Cir., 158 F.2d 260, and other decisions, said: 'It is common knowledge that war may exist without a declaration thereof.'And...