Duncan v. Cuna Mut. Ins. Society

• Decision Date: 05 July 2005
• Docket Number: No. COA04-1176.,COA04-1176.
• Citation: 614 S.E.2d 592
• Parties: Betty L. DUNCAN, Individually and in her Capacity as the Administrator of the estate of Michael Ray Duncan, Plaintiff, v. CUNA MUTUAL INSURANCE SOCIETY and Cuna Mutual Life Insurance Company, Defendants.
• Court: North Carolina Supreme Court

614 S.E.2d 592

Betty L. DUNCAN, Individually and in her Capacity as the Administrator of the estate of Michael Ray Duncan, Plaintiff, v. CUNA MUTUAL INSURANCE SOCIETY and Cuna Mutual Life Insurance Company, Defendants.

No. COA04-1176.

Court of Appeals of North Carolina.

July 5, 2005.

Appeal by plaintiff from orders entered 9 March 2004 by Judge Michael E. Helms, and 28 April 2004 by Judge Catherine C. Eagles, in Forsyth County Superior Court. Heard in the Court of Appeals 13 April 2005.

Law Offices of Jonathan S. Dills, by Jonathan S. Dills, Winston-Salem, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, by Reid C. Adams, Jr., and Bradley O. Wood, Winston-Salem, for defendant-appellees.

LEVINSON, Judge.

Plaintiff (Betty Duncan) appeals from an order of summary judgment entered in favor of defendants (Cuna Mutual Ins. Society and Cuna Mutual Life Ins. Co.) We affirm.

Uncontradicted record evidence tends to show, in pertinent part, the following: Plaintiff and Michael Duncan (Duncan) were married in 1987 and separated in 1998. Duncan had several DWI convictions and a history of substance abuse. In October 1998, Duncan purchased a $150,000 life insurance policy (the policy) from defendants, and named plaintiff as the beneficiary. The policy contained the following exclusion:

Exclusions. We will not pay a benefit for any Loss to an Insured Person caused by or resulting from ... 8. Voluntary use of any drug, medicine, or sedative, except as prescribed by a physician.

On 8 April 2000 Duncan's body was found on a couch in his living room. Although plaintiff and Duncan separated in July, 1998, they were still married at the time of Duncan's death. An autopsy was performed, determining the cause of death to be "methadone toxicity." The autopsy report, death certificate, and medical examiner's report all list the cause of death as "methadone toxicity."

After Duncan's death, plaintiff filed a claim for benefits under the policy. In response, defendants asked plaintiff for a list of Duncan's prescriptions, which plaintiff failed to provide.

On 8 April 2003 plaintiff filed suit against defendants, alleging that defendants had breached the insurance contract, and seeking benefits under the policy. In their answer, defendants denied the material allegations of the complaint and asserted various defenses, including the policy's exclusion for non-prescribed drugs. After deposing plaintiff, defendants filed a motion for summary judgment on 5 January 2004, asserting that:

[P]laintiff, by her own admission, can produce no evidence whatsoever to meet her burden to prove an exception to the exclusion contained in the life insurance policy in question... in other words, plaintiff cannot prove that the plaintiff's decedent was prescribed the methadone which caused his death, nor can plaintiff otherwise demonstrate the existence of a genuine issue of material fact for a jury to decide.

On 9 March 2004 the trial court entered an order granting summary judgment for defendants, and on 28 April 2004 the court awarded defendants $562.24 in costs. Plaintiff timely appealed from both orders.

Standard of Review

Plaintiff appeals from a summary judgment order. N.C.G.S. § 1A-1, Rule 56(c) (2003) provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law."

"[T]he party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact[,]" Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985), and "evidence presented by the parties must be viewed in the light most favorable to the non-movant." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted). If a summary judgment motion is "supported as provided in this rule, an adverse party ... must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e).

"Our Court's standard of review on appeal from summary judgment requires a two-part analysis. Summary judgment is appropriate if (1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law." Gaunt v. Pittaway, 139 N.C.App. 778, 784, 534 S.E.2d 660, 664 (2000).

Plaintiff argues first that the trial court erred by granting summary judgment, on the grounds that the evidence raised genuine issues of material fact about her entitlement to benefits under Duncan's life insurance policy. We disagree.

Where interpretation of an insurance policy is at issue, the initial burden to show coverage is on the insured. Production Systems v. Amerisure Ins. Co., ___ N.C.App. ___, ___, 605 S.E.2d 663, 665 (2004) ("In North Carolina the insured `has the burden of bringing itself within the insuring language of the policy.'") (quoting Hobson Construction Co., Inc. v. Great American Ins. Co., 71 N.C.App. 586, 590, 322 S.E.2d 632, 635 (1984)), disc. review denied, 359 N.C. 322, 611 S.E.2d 415 (2005). Defendants herein concede that, except for the exclusion, plaintiff would be entitled to benefits under the policy.

"Once it has been determined that the insuring language embraces the particular claim or injury, the burden then shifts to the insurer to prove that a policy exclusion excepts the particular injury from coverage." Hobson, 71 N.C.App. at 590, 322 S.E.2d at 635 (citation omitted). If there is an exception to the exclusion, "the burden is upon the insured to prove the existence of an exception to the exclusion which is applicable to restore coverage." Allstate Ins. Co. v. Chatterton, 135 N.C.App. 92, 94, 518 S.E.2d 814, 816 (1999) (citing Home Indemnity Co. v. Hoechst Celanese Corp., 128 N.C.App. 189, 494 S.E.2d 774 (1998)).

Further, in the absence of contrary evidence, it is presumed that substances are ingested voluntarily. See Mehaffey v. Insurance Co., 205 N.C. 701, 705, 172 S.E. 331, 333 (1934):

Assuming that there was evidence of poison in his stomach after death, there is no evidence that it got there through accidental means. Indeed, the facts and circumstances disclose without equivocation that any poison in the stomach of deceased was the natural and probable consequence of an ordinary act in which he voluntarily engaged. Hence no recovery [on the life insurance policy] can be sustained[.]

In the instant case, the dispositive issue is whether the evidence raised a genuine issue of material fact regarding the policy's exclusion for loss resulting from the "voluntary use of any drug, medicine, or sedative," or the exclusion's exception for the use of such drugs "as prescribed by a physician."

The uncontradicted evidence was that the immediate cause of Duncan's death was "methadone toxicity." Neither party disputes that methadone is a "drug, medicine, or sedative," or that Duncan had a history of alcohol and substance abuse. Duncan's body was found in his own living room, with no evidence of forced entry or foul play. We conclude that defendants met their burden to show that the exclusion bars plaintiff from recovering under the policy.

Plaintiff, however, urges that defendants must "disprove her claims" with affirmative proof that Duncan took methadone `vol...