Botts v. Hartford Acc. & Indem. Co.

• Decision Date: 24 October 1978
• Docket Number: No. 7930,7930
• Citation: 284 Or. 95,585 P.2d 657
• Parties: Margaret BOTTS, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a corporation, Respondent. ; SC 25493.
• Court: Oregon Supreme Court

Page 657

585 P.2d 657

284 Or. 95

Margaret BOTTS, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a corporation, Respondent.

No. 7930; SC 25493.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton May 1, 1978.

Decided Oct. 24, 1978.

Alex M. Byler of Corey, Byler & Rew, Pendleton, argued the cause for appellant. With him on the briefs was William L. Reynolds, Enterprise.

Edwin J. Peterson of Tooze, Kerr, Peterson, Marshall & Shenker, Portland, argued the cause and filed a brief for respondent.

HOLMAN, Justice.

Plaintiff Margaret Botts brought this action as beneficiary to recover death benefits under a group accident insurance policy issued by defendant. At the conclusion of plaintiff's case-in-chief, the trial court granted defendant's motion for judgment of involuntary non-suit and plaintiff appeals.

Decedent Melvin Botts died at age 51 after suffering a myocardial infarction. He was stricken while operating a grader for the State Highway Division on a crew working between Lostine and Wallowa in Wallowa County. Decedent was a novice grader operator, was anxious and eager to learn the job, and had been so working for approximately two weeks. His work entailed spreading heavy aggregate which was used as a base in the widening of shoulders of the highway. At the time of his attack he was working on a curve which, along with other complicating factors including mail boxes and a side road, made the grading job more difficult than usual. In addition, the work involved considerable effort, nervous tension and strain because of the complicated machinery and the necessity to keep a close lookout for trucks that were dumping their loads, for other workmen, and for traffic on the highway. Ninety per cent of the time a flagman was used; decedent's attack occurred at a time when there was no flagman. Four dump trucks were hauling aggregate, each truck taking approximately one hour to make a round trip. The foreman, who was an expert grader operator and who was teaching decedent, was operating one of the trucks. Shortly after the noon break he appeared with a load of rock where decedent was working and where the other trucks had bunched up, some of them having come in loaded during the noon break. One had just dumped its load which decedent was spreading while the balance of the trucks were waiting to unload. Such bunching of trucks ordinarily did not occur.

At that time decedent went to the foreman, saying he was in trouble and asking him if he would help him get straightened out and show him what to do. The decedent was flushed and breathing hard. The foreman worked with him from 30 to 45 minutes during which time decedent continued to operate the grader. When the foreman left for another load, decedent was still flushed and breathing hard; when he returned the grader was sitting partially on the road, all the rock had been spread, but no one was around. During the interim, decedent had been taken by a passing motorist to the hospital where he died shortly after his arrival. His doctor testified that decedent had died as the result of a myocardial infarction brought on by exertion as well as by mental strain.

Decedent was not known to have had any prior indication of heart trouble although he had complained to his wife the week before his death of his arms being tired and hurting him and had blamed it on the grader. His physician had examined him approximately once a year since 1964 and had never observed any symptoms of heart or circulatory disease. The physician also testified that he had administered a resting electrocardiogram to decedent approximately three months prior to his death and that the test results were normal.

The issue presented on this appeal is whether plaintiff's evidence was sufficient to raise a question for the jury as to whether decedent suffered "accidental bodily injury" within the meaning of the following clause from defendant's insurance policy:

"The word 'injury' * * * means accidental bodily injury sustained by an Insured Person or a Covered Dependent while the policy is in force with respect to such person and which results directly and independently of all other causes in loss covered by the policy."

In disputes over the meaning of insurance policies, as in all contract litigation, the primary focus must be on the language of the policy. The parties join in expressing a belief that Thompson v. Gen. Ins. Co. of America, 226 Or. 205, 359 P.2d 1097 (1961), is in point and is controlling here. ¹ In Thompson the plaintiff suffered a heart attack while breaking a horse. He attempted to recover on a policy providing that covered employees suffering bodily injury or sickness "Caused by accident" were entitled to benefits (emphasis added). This court affirmed a grant of judgment notwithstanding a plaintiff's verdict on the basis of the then already well established rule that, given a policy such as that involved in Thompson, the plaintiff must prove The cause of the injury to be accidental. Thus, an "accidental cause" provision was distinguished from "accidental injury" and Thompson was decided on that basis. If we were to continue to recognize such a difference, the policy here would be classified as an accidental injury policy and not an accidental cause policy like the one in Thompson. ² In Pope v. Benefit Trust Life Ins. Co., 261 Or. 397, 494 P.2d 420 (1972), we noted that the practice of making a distinction between accidental injury or results and accidental causes or means has been the subject of increasing criticism. Pope v. Benefit Trust Life Ins. Co., supra at 399-400, Id. at 409, 494 P.2d 420 (O'Connell, C. J., concurring). In Pope, it was not necessary to decide whether the distinction should be abolished because we determined that the record contained evidence sufficient to support the trial court's conclusion that the injury resulted from accidental causes. Id. at 401, 494 P.2d 420.

Questions relating to the continued vitality of the means-result distinction need not be resolved in the present case because, as noted, the policy we are construing does not contain an accidental means or cause requirement. However, as seen in the briefs in this case, the distinction keeps rising to the surface and creating unnecessary confusion; consequently, we shall lay the distinction to rest at this seemingly opportune time. We interpret insurance policies according to what we perceive to be the understanding of the ordinary purchaser of insurance. Pope v. Benefit Trust Life Ins. Co., supra at 400, 494 P.2d 420; Finley v. Prudential Ins. Co., 236 Or. 235, 245, 388 P.2d 21 (1963); Thompson v. Gen. Ins. Co. of America, supra, 226 Or. at 207, 359 P.2d 1097. We have previously expressed doubts as to whether the ordinary purchaser would expect the concept of "accident" to have a different meaning depending upon whether the policy purports to require accidental means or accidental results. Pope v. Benefit Trust Life Ins. Co., supra, 261 Or. at 399-400, 494 P.2d 420. We are convinced that no distinction would be expected. Also see Pope v. Benefit Trust Life Ins. Co., supra at 409, 494 P.2d 420. (O'Connell, J., concurring).

However, the abolishment of the above-discussed distinction does not end our inquiry, for it is still necessary that we determine whether the death of decedent was "accidental." In making his determination, we are guided by the principle that it is the common understanding of the term which must be used and not its technical meanings. Pope v. Benefit Trust Life Ins. Co., supra at 400, 494 P.2d 420; Finley v. Prudential Ins. Co., supra, 236 Or. at 245, 388 P.2d 21; Thompson v. Gen. Ins. Co. of America, supra, 226 Or. at 207, 359 P.2d 1097; 10 Couch on Insurance § 41.5 at 30 (2d ed. R. Anderson 1962); 1A Appleman, Insurance Law and Practice § 391 at 19 (1965). The insurance company may, of course, insert in its policy any definition of "accident" it chooses but, in the absence of doing so, it must accept the common understanding of the term by the ordinary member of the purchasing public. There are probably not many words which have caused courts as much trouble as "accident" and "accidental." See Kisle v. St. Paul Fire & Marine Ins., 262 Or. 1, 5, 495 P.2d 1198 (1972). They are not words which lend themselves to specific or exact meanings, Finley v. Prudential Ins. Co., supra, 236 Or. at 245, 388 P.2d 21; W. Vance, Law of Insurance § 181 at 948 (3d ed. B. Anderson 1951), yet, everyone thinks he knows an accident when he sees one. In our prior decisions we have endeavored, by emphasizing the foreseeability of the injury and the intent with which it was produced, to develop definitions which best effectuate the reasonable expectations of the insured. ³ The vulnerability of these definitions becomes apparent, however, as we visualize the circumstances which fall within these definitions but which we know were never contemplated by either the company or any insured as being within the coverage. If someone sits in a draft, catches pneumonia and dies, we would not say his death was accidental; neither would we so classify the death of a person who catches a communicable disease from someone seated next to him on a bus. However, these deaths and almost all deaths, except those which are self-inflicted and, perhaps, those brought on by extreme old age, occur by chance, without design, are contrary to expectation, and are neither foreseeable nor intended. Yet it is probable that these same deaths would never be considered "accidental" by anyone. In the instant case, had decedent died in bed while asleep, his death would have been no less unintended or unforeseeable.

The problem arises from an erroneous impression that there is one all-encompassing definition of "accident" or "accidental" without regard to the particular factual circumstance in which the meaning of the terms is brought into question. If someone is struck by lightning, his injury or...