Clardy v. National Life & Acc. Ins. Co., 48192

• Decision Date: 25 February 1977
• Docket Number: No. 48192,48192
• Citation: 561 P.2d 892,1 Kan.App.2d 1
• Parties: James CLARDY, Administrator of the Estate of Lucy Clardy, Appellant, v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, a corporation, Appellee.
• Court: Kansas Court of Appeals

Page 892

561 P.2d 892

1 Kan.App.2d 1

James CLARDY, Administrator of the Estate of Lucy Clardy, Appellant, v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, a corporation, Appellee.

No. 48192.

Court of Appeals of Kansas.

Feb. 25, 1977.

Syllabus by the Court

1. The beneficiary of a life and accident insurance policy has the burden of proving the injury was of a type included in the general provisions of the insurance contract.

2. When an insurer seeks to avoid liability on the basis that the injury was covered by specific exception to the general terms of the policy, the burden of proof rests upon the insurer to prove the facts which bring the case within such specified exception.

3. When evidence is presented to the trial court by stipulation, and defendant's burden as described in paragraph 2 is met, judgment for defendant is proper, plaintiff having waived rebuttal by consenting to the stipulation.

4. On appeal of a case submitted on stipulation of facts and exhibits, appellate court is limited in its review to determine if facts viewed most favorably to appellee, are sufficient to support the verdict.

5. In an action to recover benefits under life and accident insurance policy, the record on appeal is examined and it is held: The trial court did not commit reversible error in finding exclusionary clause in policy applicable so as to bar recovery by beneficiary's administrator; and it is further held: The appellee insurance company met its burden of proving that exclusionary clause was applicable.

Charles S. Scott, of Scott, Scott, Scott & Scott, Topeka, for appellant.

Mark S. Edwards, of Hoover, Schermerhorn & Edwards, Junction City, for appellee.

En Banc.

SWINEHART, Judge:

The plaintiff was the duly appointed, qualified and acting administrator of the estate of Lucy Clardy. Lucy Clardy was the beneficiary of a life and accident insurance policy issued by the defendant herein on the life of one Charles E. Johnson. The pertinent provisions of the policy are:

'(4) EXCEPTIONS-No indemnity shall be payable hereunder on account of any disability or loss caused by or resulting from (a) injuries intentionally inflicted upon the Insured by himself, while sane or insane, or by any other person other than an assailant attempting to burglarize the Insured's household or rob the Insured; . . .'

Trial was to the court, based upon stipulations by the parties as to facts and testimony of various witnesses. The two questions decided by the trial court were:

'1. Whether the insured's death resulted from accidental means or was intentionally inflicted upon the insured by himself, or by any other person other than an assailant attempting to burglarize the insured's household or rob the insured.

'2. Should attorney's fees be awarded to plaintiff's attorney pursuant to K.S.A. 40-256.'

The trial court found:

'1. That the court has jurisdiction of the parties and the subject matter.

'2. That the plaintiff, Lucy Clardy, is the beneficiary under a policy of insurance on the life of Charles E. Johnson with the National Life and Accident Insurance Company.

'3. That on the 3d day of December, 1968, Charles Johnson was mortally wounded by stabbing.

'4. That the assailant was Helen Jean Slate.

'5. That there is, under the insurance policy, under item numbered (4), 'Exceptions,' a statement which reads as follows: 'No indemnity shall be payable hereunder on account of any disability or loss caused by or resulting from (a) injuries intentionally inflicted upon the insured by himself, while sane or insane, or by any other person than an assailant attempting to burglarize the insured's household or rob the insured . . .'

'6. The court finds that said assault was not during a burglary or an attempt to rob the said Charles E. Johnson. The court finds that the obligation to go forward with the evidence and the burden of showing that the death falls within the purview of the policy is upon the plaintiff herein. The court believes that the plaintiff has not sustained said burden from the evidence as presented.

'7. The court specifically finds that said death was not accidental in that the court was presented with no evidence which would sustain such a finding. The court incorporates herein the stipulations and agreed facts as submitted to the court, the same as if they were set forth herein.

'8. Based upon the above findings of fact and conclusions of law, the court must grant judgment to the defendant and tax the costs of this action to the plaintiff.'

This decision of the court was modified as a result of ruling on defendant's motion for amendment, to the extent that is material to the determination of the questions here involved, as follows:

'The record discloses that death of insured was the result of a murderous assault upon him for which he is no wise chargeable with blame. Such death is caused by 'accidental' means within a policy insuring against disability or death from accidental means, though inflicted intentionally so far as the assailant is concerned. Kascoutas v. Federal Life Insurance Company, 193 Iowa 343 (185 N.W. 125), 22 ALR 294.

'The death certificate upon which defendant relies to establish 'non-accidental' death, shows 'murder' as the circumstance of the fatal stab wound. While the court recognizes that 'homicide' would have been a more judicious answer to the question posed, the fact remains that the death certificate substantiates the claim of death by accidental means as above defined.

'Finding No. 7 is amended by striking the word 'not' in Line 2; placing a period after the word 'accidental,' and striking the remaining words in the first sentence.

'The 'threshold question' of accidental death having been determined, the second objection that the Court placed the burden upon plaintiff to negate the exceptions to recovery under the policy is considered. The record discloses evidence adduced by the defendant that the assailant was one Helen Jean Slate and that the assault was not made during a burglary or an attempt to rob the insured, and the Court so found placing the claim squarely within the policy exception, 'No indemnity shall be payable hereunder on account of any disability or loss caused by or resulting from (a) injuries intentionally inflicted upon the insured by himself, while sane or insane, or by any other person other than an assailant attempting to burglarize the insured's household or rob the insured."

Judgment was entered in favor of defendant, and plaintiff-administrator now appeals.

The testimony presented to the trial court by written stipulation was that the deceased, Charles E. Johnson, had been acquainted with Helen Slate for a period of time prior to December 3, 1968, and said acquaintance was more than a mere casual one. On December 3, 1968, at approximately 8:00 a. m., Charles E. Johnson was at the home of Helen Slate, and at the same time, there was another man, Fred Wilson, in the bedroom of the home of Helen Slate. Further testimony revealed that the man in Helen Slate's bedroom had previously threatened to kill Helen Slate if the victim was ever caught in her home again. Charles Johnson, who was in the process of leaving said home, a taxicab having been called for him by Helen Slate, had departed from the residence and was standing near the street....