Evans v. National Life Acc. Ins. Co., 2-483A112
| Decision Date | 27 August 1984 |
| Docket Number | No. 2-483A112,2-483A112 |
| Citation | 467 N.E.2d 1216 |
| Parties | Willie EVANS and John Evans, Appellant (Plaintiff Below), v. The NATIONAL LIFE ACCIDENT INSURANCE COMPANY, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
George T. Popcheff, Robert B. Lutz, Indianapolis, for appellant.
Albert C. Harker, Marion, for appellee.
Willie and John Evans (Evanses) appeal the denial of insurance benefits for the death of Jerome Evans (Insured) under an Additional Indemnity Agreement to a life insurance policy issued by The National Life & Accident Insurance Company (National).
We affirm.
In 1970, the Insured purchased a life insurance policy from National in the face amount of $10,000. At the same time, the Insured also purchased an Additional Indemnity Agreement (Agreement) which afforded an additional $10,000 in benefits if death resulted from "accidental means." The Insured died on the evening of February 23, 1979, as a result of strangulation due to a shotgun wound to the heart. The fatal shot was fired by Thomas Cox sometime after Cox and the Insured argued and engaged in physical combat at the Little Harlem Tavern in Marion, Indiana earlier that evening. National paid the Evanses, the named beneficiaries, the face amount of the life insurance policy, $10,000, but refused to pay the additional $10,000 in benefits under the Agreement.
The Agreement provided benefits only for death resulting from "external, violent and accidental means" and enumerated seven specific exclusions from coverage, including death resulting from suicide, poisoning, disease, war, the intentional act of another, commission of an assault or felony, or operation of an aircraft.
On November 2, 1979, the Evanses filed suit against National for the additional benefits under the Agreement. Ultimately, the trial court issued findings of fact and conclusions of law concluding the Insured was intentionally murdered by Cox and denying the Evanses recovery based on three provisions of the Agreement. Specifically, the trial court concluded: 1) the Insured's death was not the result of "accidental means"; 2) the Insured died "directly or indirectly and wholly or partially as a result of the intentional act of another person," and 3) the Insured died "directly or indirectly and wholly or partially as a result of his commiting [sic] an assault or felony." 1
On appeal, the Evanses challenge each of the trial court's conclusions. Our disposition necessitates review of only the following issue:
Whether the trial court erred in finding the Insured's death was the result of an intentional act of another and therefore properly excluded from coverage under the Agreement?
The Evanses correctly define the "intentional act" exclusion as an affirmative defense. Consequently, National had the burden of proving facts sufficient to demonstrate the Insured's death was the result of Cox's intentional conduct. Brotherhood's Relief and Compensation Fund v. Smith, (1971) 150 Ind.App. 452, 277 N.E.2d 180; Mutual Trust & Deposit Co. v. Traveler's Protective Association of America, (1914) 57 Ind.App. 329, 104 N.E. 880.
Based on this burden of proof, the Evanses first challenge the sufficiency of the evidence to support the trial court's finding that the Insured's death resulted "directly or indirectly and wholly or partially as a result of the intentional act of another person." The Evanses highlight Cox's testimony that he did not intend to fire the shotgun or to shoot the Insured. However, on appeal we only consider the evidence and reasonable inferences which support the trial court's judgment; we neither weigh conflicting evidence nor judge the credibility of witnesses. The trial court's findings and conclusions will not be set aside unless clearly erroneous. E.g., Baker v. Compton, (1983) Ind.App., 455 N.E.2d 382.
With this standard in mind, we review the evidence most favorable to the trial court's judgment, as detailed in the court's findings and supported by the record. During the evening in question, the Insured and his brother, John, approached Cox and his three female companions at a table in the Little Harlem Tavern. The Insured and Cox argued about a pistol the Insured believed Cox had stolen. Cox, John, and the Insured went out the back door of the tavern where the Insured pistol whipped and threatened to kill Cox. John eventually interceded and he and the Insured left.
Cox did not immediately re-enter the tavern but stood outside and then sat in his brother's car. Cox then went back into the tavern and ordered a beer at the bar. About 15 minutes later, Cox turned and found the Insured behind him. The Insured told Cox he was going to kill him and then also ordered a beer at the bar. In fear of bodily harm, Cox waited a short time and left. A moment later Cox returned with a shotgun held in his right hand down by his leg as he approached the Insured. The Insured was standing at the bar with his back to Cox. Cox pointed the gun at the Insured, called the Insured's name and, as the Insured turned, Cox shot the Insured in the back.
After the shot, Cox dropped the shotgun and fought with the Insured. As the Insured lay dying on the tavern floor someone in the crowd yelled "Is he dead?" Cox kicked the Insured in the head and replied "If he ain't, he ought to be."
The evidence amply supports the court's conclusion the Insured's death was the result of Cox's intentional conduct. Contrary to the Evanses' assertion, the evidence clearly supports the conclusions that Cox intended to fire the shotgun and to shoot the Insured. Upon the Insured's return to the tavern, Cox left the tavern but, rather than staying away, returned armed with a shotgun, raised the shotgun, specifically called the Insured's name, shot the Insured in the back from a few feet away, and then kicked the dying man in the head. It was within the evidence for the trial court, as the trier of fact, to conclude Cox "intentionally" and "deliberately" "murdered" the Insured.
Even assuming the sufficiency of the evidence, the Evanses contend the policy exclusion for intentional conduct was ambiguous and unconscionable. The Agreement, however, expressly excluded coverage "if the death of the Insured resulted either directly or indirectly, or wholly or partially, from ... the intentional act of another person ...." Regardless, the Evanses contend the court must give effect only to the average insured's reasonable expectations of coverage. They argue "[i]t...
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