Freeman v. Commonwealth Life Ins. Co. of Louisville, Ky., 1170A182

• Decision Date: 22 August 1972
• Docket Number: No. 1170A182,1170A182
• Citation: 259 Ind. 237,286 N.E.2d 396
• Parties: Martha Smith FREEMAN, Appellant, v. COMMONWEALTH LIFE INSURANCE COMPANY OF LOUISVILLE, KENTUCKY, Appellee.
• Court: Indiana Supreme Court

Page 396

286 N.E.2d 396

259 Ind. 237

Martha Smith FREEMAN, Appellant, v. COMMONWEALTH LIFE INSURANCE COMPANY OF LOUISVILLE, KENTUCKY, Appellee.

No. 1170A182.

Supreme Court of Indiana.

Aug. 22, 1972.

John R. Dollens, Scottsburg, for appellant.

[259 Ind. 238] Ernest W. Smith, Fox & Smith, Jeffersonville, for appellee.

ON PETITION TO TRANSFER

HUNTER, Justice.

This case is before us on a Petition to Transfer, and for the reasons stated herein the petition is denied. The appeal concerns an action for accidental death benefits by the beneficiary of the insured, the alleged aggressor in an encounter in which he was killed by his victim. The insured, Smith, and the victim, Bowling, were apparently friends except when Smith had been drinking. After drinking, Smith allegedly initiated a fracas with Bowling. Smith was shot and killed by a pistol which Bowling had pulled from his pocket during the tussle.

Summary judgment was entered for the insurer on the basis of the 'reasonable foreseeability' test which is:

'(T)hat there will be no liability where the harm to the attacker-insured is such a probable and reasonably foreseeable consequence of his aggression that it would not be regarded by the ordinarily reasonable man as 'accidental." Freeman v. Commonwealth Life Ins. Co. of Louisville (1971), Ind.App., 271 N.E.2d 177, 179.

The Appellate Court reversed, holding that there was a genuine issue of fact as to whether the decedent's death was reasonably foreseeable, but additionally that the rule of 'reasonable foreseeability' as stated above is not the law in Indiana and should not govern. We agree with the Appellate Court on both positions.

It is clear that even under the 'reasonable man' foreseeability test stated above an issue of fact does exist. Accepting for the argument that Smith started the fight there is no evidence that he could have known that Bowling would draw a pistol and shoot him. It is also not clear whether the pistol was fired intentionally, in self-defense, or whether it was discharged accidentally. With this issue very much in doubt, summary judgment is not proper.

The insurer does not base its petition on that issue, but upon the test of 'accidental means' adopted by the Appellate Court. The pertinent portion of the accidental death clause reads:

'If an Employee * * * suffers the loss of life * * * as a result * * * of bodily injuries effected solely through external, violent and accidental means * * * the Insurance Company will * * * pay the amount provided for such loss.' Freeman, supra, Ind.App., 271 N.E.2d at 178.

It is the rule, as petitioner admits, that an ambiguous term in an insurance policy will be resolved in favor of the insured. See Freeman, supra, Ind.App., 271 N.E.2d at 181, and cases cited therein. 'Accidental means' is surely an ambiguous phrase susceptible to several interpretations. Petitioner contends that the phrase has received prior judicial interpretation by the courts of this state. The most recent of those cited is Pearlmen v. Mass. Bonding and Ins. Co. (1955), 126 Ind.App. 294, 299, 130 N.E.2d 54, 57, which contains the following language:

'The purpose of accident insurance is to protect the insured against accidents that occur while he is going about his business in the usual way, without any...