Emanuel v. Colonial Life & Acc. Ins. Co.

• Decision Date: 07 March 1978
• Docket Number: No. 7716DC247,7716DC247
• Citation: 242 S.E.2d 381,35 N.C.App. 435
• Court: North Carolina Court of Appeals
• Parties: Robert Lee EMANUEL, Jr. v. COLONIAL LIFE AND ACCIDENT INSURANCE COMPANY.

Page 381

242 S.E.2d 381

35 N.C.App. 435

Robert Lee EMANUEL, Jr. v. COLONIAL LIFE AND ACCIDENT INSURANCE COMPANY.

No. 7716DC247.

Court of Appeals of North Carolina.

March 7, 1978.

Womble, Carlyle, Sandridge & Rice by Alan R. Gitter and William C. Raper, Winston-Salem, for defendant-appellant.

I. Murchison Biggs by I. Murchison Biggs and Adelaide G. Behan, Lumberton, for plaintiff-appellees.

BRITT, Judge.

Defendant contends first that the trial court erred in granting summary judgment for plaintiff. We agree with this contention and in view of the discussion to follow on defendant's other contention, no discussion on the first contention is necessary.

Defendant contends next that the trial court erred in denying its motion for summary judgment, arguing that the materials submitted to the court showed conclusively that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. We disagree with this contention and hold that the materials presented to the court do show a genuine issue of material fact.

Since the enactment of our statute on summary judgment, G.S. 1A-1, Rule 56, our courts have stated many times that summary judgment is an extreme remedy and is appropriate only where no genuine issue of material fact is presented. Haddock v. Smithson, 30 N.C.App. 228, 226 S.E.2d 411, cert. denied 290 N.C. 776, 229 S.E.2d 32 (1976).

In ruling on a motion for summary judgment, the court does not resolve issues of fact and must deny the motion if there is any genuine issue of a material fact. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact and in that regard the papers of the opposing party are indulgently regarded. Van Poole v. Messer, 19 N.C.App. 70, 198 S.E.2d 106 (1973).

After a careful review of applicable North Carolina case law and statements of law from other jurisdictions, we conclude that upon the facts as presented in this case in the form of affidavits, depositions and autopsy records, a genuine issue of fact exists as to whether the insured was suffering from a preexisting disease which combined with the injuries sustained in the automobile accident to cause his death.

Two basic rules have developed in the United States with respect to the recovery under an accident policy which contains clauses which allow recovery only if death occurs independently and solely as a result of an accident and exclusive of any preexisting disease or infirmity. In some jurisdictions recovery will be allowed under an accident policy if there is existing disease and injuries sustained in an accident accelerate the effect of the disease and cause an earlier death. Other jurisdictions deny recovery if there is a preexisting disease which combines with the injuries sustained in the accident and causes an earlier death. Annot. 84 A.L.R.2d 176 (1962); Annot. 82 A.L.R.2d 611 (1962). North Carolina courts appear to have adopted a version of the latter philosophy which was concisely stated in Penn v. Insurance Co., 160 N.C. 399, 404, 76 S.E. 262, 263 (1912):

1. When an accident caused a diseased condition, which together with the accident resulted in the injury or death complained of, the accident alone is to be considered the cause of the injury or death.

2. When at the time of the accident the insured was suffering from some disease, but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause.

3. When at the time of the accident there was an existing disease, which, co-operating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause or as the cause independent of all other causes.

Defendant argues that the materials presented at the summary judgment hearing established conclusively that Mr. Emanuel had an existing disease at the time of his automobile accident, and that the disease, cooperating with the accident, caused his death thereby bringing the case under Rule 3 of Penn. Plaintiff argues that arteriosclerosis is not a disease within the meaning of the policy provisions in question and the rules set forth in Penn, therefore, the case comes under Rule 1 in Penn.

Research reveals that three basic views have been taken by courts as to whether arteriosclerosis is viewed as a disease or a normal condition of aging when recovery is sought under an accident insurance policy with provisions similar to those in the case at hand. The decisions, which appear to have been decided on a case by case basis, have held: (1) that arteriosclerosis is a disease as a matter of law; (2) that arteriosclerosis is a normal process of aging as a matter of law; and (3) that whether arteriosclerosis is a disease or a normal aging process is a question of fact for the jury. Annot. 61 A.L.R.3d 822 (1975). This varied approach on the issue is also discussed in Couch on Insurance 2d, § 41-406, pp. 366-67. In order to determine whether the evidence in the present case establishes arteriosclerosis as a disease or a normal condition as a matter of law or whether it raises a question of fact for the jury, decisions involving similar factual situations from North Carolina and other jurisdictions must be examined.

North Carolina does not have a definitive decision on whether arteriosclerosis is classified as a disease or a normal aging process as a matter of law or whether the classification of arteriosclerosis is a question of fact for the jury. The facts, language and holdings in Hicks v. Insurance Co., 29 N.C.App. 561, 225 S.E.2d 164 (1976); Horn v. Insurance Co., 265 N.C. 157, 143 S.E.2d 70 (1965); and Skillman v. Insurance Co., 258 N.C. 1, 127 S.E.2d 789 (1962), provide guidance, but no definitive ruling on the issue.

In Hicks the deceased was covered by an insurance policy with accidental death benefits similar to those in the present case. The insured was a construction worker who fell from a ten-foot scaffold, sustained minor injuries, and died a short time later. The record in the case contained an autopsy report which stated "that the insured . . . expired from cardial complications of longstanding coronary artery disease with an old myocardial infarction." Testimony in the record also indicated that the insured suffered from "severe coronary artery disease"; that there was "no fresh thrombus in any of the arteries and no fresh infarction"; that the condition of the coronary artery and the infarction had existed in deceased for a number of months prior to the fall; and that the medical examiner had revised his original report on the cause of death from "traumatic injuries as a result of the fall from scaffold" to "myocardial infarction." Based on the evidence presented by affidavits, interrogatories and depositions, defendant's motion for summary judgment was granted. The Court of Appeals affirmed the lower court ruling with the following language:

. . . Through its evidentiary material defendant established by expert medical opinion that Roy Hicks died as a result of a myocardial infarction which was due to coronary arteriosclerosis. Death of the insured from myocardial infarction would prohibit the beneficiary from recovery under the accidental insurance policy coverage and entitle defendant to judgment as a matter of law. 29 N.C.App. at 564, 225 S.E.2d at 166.

The court stated further that the plaintiff had not fulfilled its burden to respond by affidavit to establish that there was a genuine issue for trial with respect to the cause of death by showing that death was due to accidental injury rather than heart failure. Finally the court concluded with the following dictum statement:

Assuming arguendo that plaintiff's evidence in opposition to the motion for summary judgment raises an inference that the accidental fall contributed to the cause of death there is still no genuine issue for trial. Where death is caused by a pre-existing diseased condition in cooperation with an accident it is not an accidental bodily injury independent of all other causes. Horn v. Insurance Co., 265 N.C. 157, 143 S.E.2d 70 (1965). 29 N.C.App. at 564, 225 S.E.2d at 166.

Based on the facts presented in the record and the opinion of the Hicks case, the preexisting disease which prevented recovery under the insurance policy was the "old myocardial infarction" and the longstanding severe coronary artery disease. There was no evidence presented in Hicks which even raised an inference that the insured's arteries were sclerosed only to the extent that was normal for a man in the insured's age bracket. We do not think Hicks supports defendant's argument that any degree of arteriosclerosis is a disease as a matter of law in North Carolina. At best Hicks indicates by dictum that before a summary judgment will be allowed for the insurer, the evidence must show that the arteriosclerosis was so severe that it had developed into a longstanding coronary artery disease and that the myocardial infarction occurred prior to the accident.

The Horn and Skillman cases also support the view that a question of fact was raised for the jury in the present case. In Horn the insured was a seventy-two-year-old man with a history of heart attacks and old hospital records indicated that he had been suffering from "arteriosclerotic cardiovascular disease" for the last ten years. Insured died within an hour after a minor automobile accident in which he sustained only superficial lacerations. The medical examiner stated that death resulted from severe heart disease and that the accident precipitated the heart attack. The Supreme Court reversed the trial court ruling allowing recovery on the insurance policy on the grounds that a nonsuit should have been granted since the insured was suffering from a preexisting disease and the mental shock of the accident alone could not be a...