Bone v. Charlotte Liberty Mut. Ins. Co., 7118DC21

• Decision Date: 22 February 1971
• Docket Number: No. 7118DC21,7118DC21
• Citation: 179 S.E.2d 171,10 N.C.App. 393
• Court: North Carolina Court of Appeals
• Parties: Gladys BONE v. CHARLOTTE LIBERTY MUTUAL INSURANCE COMPANY.

Page 171

179 S.E.2d 171

10 N.C.App. 393

Gladys BONE v. CHARLOTTE LIBERTY MUTUAL INSURANCE COMPANY.

No. 7118DC21.

Court of Appeals of North Carolina.

Feb. 22, 1971 Certiorari Denied by Supreme Court April 6, 1971.

Wade C. Euliss, Greensboro, for plaintiff appellant.

Max D. Ballinger, Greensboro, for defendant appellee.

MORRIS, Judge.

The policy provisions germane to a determination of this appeal are not in dispute. The pertinent provisions are found under the section entitled 'Loss Due to Hospitalization'. It is there provided that 'This policy covers loss due to Hospital residence resulting from accidental bodily injury sustained after the date of this policy, * * *' and "Injury' as used in this policy means bodily injury sustained after the date of this policy which is the sole cause of the loss and which is effected solely through accidental means while this policy is in force.' Defendant states that these are the only policy provisions pertinent. The policy is not before us, so we assume that the policy does not contain any exclusion clause.

Defendant strongly urges that because plaintiff's injuries were intentionally inflicted by another person, she is not entitled to recover. His contention is that this does not come within the definition of 'accidental means' adopted in this jurisdiction. It is true that this jurisdiction is among those which still make a distinction between loss due to 'accidental means' and loss due to 'accident'. In Chesson v. Pilot Life Insurance Co., 268 N.C. 98, 150 S.E.2d 40 (1966), the Court said:

'As this Court has pointed out many times "(a)ccidental means' refers to the occurrence or happening which produces the result and not to the result. That is, 'accidental' is descriptive of the term 'means'. The motivating, operative and causal factor must be accidental in the sense that it is unusual, unforeseen and unexpected. * * * (T)he emphasis is upon the accidental character of the causation--not upon the accidental nature of the ultimate sequence of the chain of causation.' Fletcher v. Security Life & Trust Co., 220 N.C. 148, 150, 16 S.E.2d 687, 688.'

In recent years, an increasing number of jurisdictions have repudiated the distinction between the term 'accidental means' and the terms 'accident', 'accidental result', 'accidental injury', 'accidental death', and the like, and the terms are now more generally regarded as legally synonymous. 44 Am.Jur.2d, Insurance, § 1221. Various reasons are assigned, but primarily it appears that courts rejecting the distinction do so on the ground that such a distinction is not understood by the average man for whom the policy is written and who purchases the insurance to protect himself from loss or injury in case of an accident to him. The insurance companies have it within their power, by simplicity and clarity of expression, to remove all doubt. For citations of cases from jurisdictions which have removed the distinction see 44 Am.Jur.2d, supra, wherein it is noted that many of the courts were influenced by the dissenting opinion of Mr Justice Cardozo in Landress v. Phoenix Mutual Life Ins. Co., 291 U.S. 491, 54 S.Ct. 461, 79 L.Ed. 934 (1933). In his dissenting opinion he noted that the continued attempt to distinguish between accidental results and accidental means would plunge this branch of the law into a 'Serbonian Bog'.

It is a well-established rule, in the absence of any policy provision on the subject, that where the insured is intentionally injured or killed by another and the insured is himself free from misconduct, the assault being unforeseen by insured, the injury or death is accidental within the meaning of an accident insurance policy. 44 Am.Jur.2d, Insurance, § 1247.

This rule was set out by Justice Sharp in Nationwide Mutual Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654 (1964), where she said:

'When an insured is intentionally injured or killed by another, and the mishap is, as to him, unforeseen and not the result of his own misconduct, the general rule is that the injury or death is accidentally sustained within the meaning of the ordinary accident insurance policy, and the insurer is liable therefor * * *.'

In an earlier case, Harris v. Jefferson Standard Life Insurance Co., 204 N.C. 385, 168 S.E. 208 (1933), the policy involved was a life insurance policy providing for double indemnity in the event insured's death resulted 'from bodily injury within ninety days after the occurrence of such injury provided death results directly and independently of all other causes, from bodily injury effected solely through external, violent and accidental means, while the insured is sane and sober.' The policy specifically provided that the double indemnity provision did not apply 'in case death results from bodily injury inflicted by the insured himself, or intentionally by another person.' On appeal from judgment entered on a verdict allowing recovery, defendant contended that its motion for judgment as of nonsuit should have been allowed because there was no evidence at the trial tending to show that the death of the insured was the result of a bodily injury effected solely through accidental means. The evidence was that insured, while engaging in a basketball game, was injured by a player on the opposing team. This player had the ball and was running toward the goal. The insured undertook to prevent the opposing player from making a goal and in the ensuing collision between them, insured was struck in his side or chest, developed pneumonia, and died within the 90-day period. Defendant contended that this mishap was not within the definition of 'accidental means' because it was not unexpected and unforeseen but was the probable result of the game in which the insured had voluntarily engaged. The Court, speaking through Justice Connor, noted that although the distinction between an accidental death and a death by accidental means had been recognized and applied by courts of other jurisdictions, no case involving such distinction had theretofore been presented to the court. With respect to those cases from other jurisdictions recognizing the distinction, the Court said:

'In each of these cases, it was held that, where the death of the insured resulted from his voluntary act, although such death was both unexpected and unforseen, and for that reason accidental, the death was not caused by accidental means, within the meaning of these words as used in the policy of insurance on which the action was brought. This distinction, if conceded to be sound, is not applicable to the instant case. The insured in this case did not by his own act cause the injury which resulted in his death. He engaged voluntarily in the game of basketball, and, while he anticipated collisions during the progress of the game with players on the opposing team, no such injury as that which he suffered by the act of his opponent was probable as the result of the game. This injury was effected by accidental means within the meaning of these words as used in double indemnity clauses in his policies of insurance.'

The North Carolina law was interpreted by the United States Court of Appeals, Fourth Circuit, in Metropolitan Life Insurance Co. v. Henkel, 234 F.2d 69 (1956), in an opinion by Parker, Chief Judge. The policy provided for payment of double indemnity for death occurring 'as the result, directly and independently of all other causes, of bodily injuries caused solely by external, violent, and accidental means * * *.' The policy specifically excluded death resulting from bodily injuries intentionally inflicted by insured but did not exclude death resulting from injuries intentionally inflicted by another. Insured was killed in South Carolina while fleeing from officers of the law at a reckless and unlawful rate of speed of 90 miles per hour or more. There was no evidence that he was guilty of violating the law prior to his flight. It appeared that the officers were looking for a violator and when insured came along about midnight, he was accosted by the officers when one of them fired a signal shot. Insured speeded up his car, one of the officers gave chase, and when insured came to a fork in the road, he lost control of the car, ran on the shoulder and caused the car to overturn, inflicting the fatal injuries to insured. In affirming recovery, the Court said:

'In interpreting the provisions of the policy, we are governed by the law of North Carolina, as the law of the state in which the policy was applied for and delivered, Horton v. Home Ins. Co., 122 N.C. 498, 29 S.E. 944; and under the law of North Carolina recovery may be had under a provision such as this Only where death results from accidental means and is not merely the accidental result of means knowingly and intentionally employed by the insured. Fletcher v. Security Life & Trust Co., 220 N.C. 148, 16 S.E.2d 687. As we think that the death of insured was clearly the result of accidental means within the meaning of the policy, it is not necessary to go into the distinction between accidental means and accidental result, a distinction described by Mr. Justice Cardozo as a 'Serbonian Bog', Landress v. Phoenix Mutual Life Ins. Co., 291 U.S. 491, 499, 54 S.Ct. 461, 78 L.Ed. 934, and one which is being repudiated by 'an increasing number of jurisdictions'. Note 166 A.L.R. 473. An injury, or death, result from accidental means as distinguished from an accidental result, within the rule of those courts observing the distinction, 'if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury'. United States Mutual Accident Ins. Co. v. Barry, 131 U.S. 100, 121, 9 S.Ct. 755, 762, 33 L.Ed. 60, cited by the Supreme Court of North Carolina in Fletcher v. Security Life & Trust Co., Supra.' (Emphasis ours.)

In the case before us, the throwing of the lye was the act which preceded the injury. Obviously, To the insured that act...