Hooker v. New York Life Ins. Co.

• Decision Date: 21 June 1946
• Docket Number: No. 43 C 938.,43 C 938.
• Citation: 66 F. Supp. 313
• Parties: HOOKER v. NEW YORK LIFE INS. CO.
• Court: U.S. District Court — Northern District of Illinois

66 F. Supp. 313

HOOKER v. NEW YORK LIFE INS. CO.

No. 43 C 938.

District Court, N. D. Illinois, E. D.

June 21, 1946.

Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, Ill., for plaintiff.

Scott, Macleish & Falk, of Chicago, Ill., for defendant.

CAMPBELL, District Judge.

The plaintiff brings this action to recover the double indemnity benefit in the policy issued by the defendant company on the life of his son. The complaint alleges that the insured's death occurred on May 19, 1943 in an accidental fall off a cliff. The defendant has paid the face amount of the policy, but resists payment of the double indemnity benefit on the ground that the insured's death was within an exception to the double indemnity clause, which provided that the double indemnity benefit shall not be payable "if the insured's death resulted, directly or indirectly, from * * * (d) war or any act incident thereto." The defendant alleges that the insured's death resulted when, as a member of the United States Marine Corps Reserve, on active duty in New Zealand, the insured, acting as an "enemy" scout during maneuvers, was "captured," and, in attempting to "escape," jumped into a clump of bushes which concealed the edge of a seventy-five foot cliff. In support of these allegations, the defendant has introduced the Navy Department file relating to the insured's death, which includes a certified true copy of the Report of Death, the reports of the Medical Officer and the Investigating Officer, and statements of witnesses. The statements of some of the witnesses, which were made in the field at the time of the accident, have since been confirmed in affidavits made by them in the United States, and introduced herein by the defendant. On the basis of these documents, the defendant has moved for summary judgment, on the ground that death occurring in maneuvers is the result of an act incident to war, and therefore is within the exception to the double indemnity benefit provision of its policy.

The plaintiff objects to the motion for summary judgment, on the grounds that the denials in the answer set up disputed questions of fact, and that the requirements of Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, have not been satisfied, in that there are no depositions or admissions by the plaintiff to support the motion. The plaintiff also objects to the documents offered by defendant in support of its motion, and challenges the report of death as an unofficial document based on hearsay. The plaintiff asserts, therefore, that the documents do not resolve questions of fact, and that the question whether the insured's death resulted directly or indirectly from war or any act incident thereto is itself a question of fact which should be submitted to a jury.

In the view which the court takes of this case, it is unnecessary to pass in detail upon all of the plaintiff's objections. The best evidence of the facts concerning the insured's death is the statements of witnesses. Some of those statements have been confirmed in affidavits made since the witnesses have returned to the United States. While affidavits of witnesses who are available would not be admissible on a trial of this cause, such affidavits may, under Rule 56 of the Rules of Civil Procedure, be considered on a motion for summary judgment. The plaintiff, indeed, does not challenge the accuracy of the facts set forth in the witnesses' affidavits and has offered no counter-affidavits relating to the circumstances of the insured's death. Since the statements in the report of the investigating officer and the report of death concerning the circumstances of the insured's death are based on interviews with witnesses, and since affidavits of some of those witnesses are available, these reports need not be considered. On this motion, therefore, the issue is reduced to a determination of the scope of the policy exception on the facts stated in the affidavits. The applicability of a policy exception is not a question of fact for a jury, but a matter of construction for the court. Bull v. Sun Life Assurance Co. of Canada, 7 Cir., 1944, 141 F.2d 456, 155 A.L.R. 1014, certiorari denied 1944, 323 U.S. 723, 65 S.Ct. 55, 89 L.Ed. 581. Although the formal pleadings appear to raise issues of fact, where, as here, it is apparent that there is no genuine issue of fact, it is proper for the court to proceed with a summary judgment. 3 Moore, Federal Practice, Section 56.01.

The purpose of exception clauses in life insurance policies is, of course, to limit the area of risk assumed by the insurer, by excluding a type of hazard from which the risk of loss is not susceptible of actuarial prediction or is too great to be borne by the insurer for the premium charged. Because it is the insurer who draws the contract, and who can increase or decrease the area of risk by varying the wording of the exception, courts have announced the familiar rule that ambiguities will be resolved against the insurer.

In wording the general type of exception under consideration here, insurers have used a great variety of language. Decisions have often turned on the presence or absence of one word in the exception clause. Detailed analysis of those cases will therefore not aid in determining the proper interpretation to be given the clause in this case. Consideration of the various types of clauses used in representative cases, however, may be of assistance in determining the area of risk which the insurer intended to exclude in this policy.

Some insurers have written the broadest possible military exception clause, by making the insured's status as a member of the armed forces the criterion of non-liability. Perhaps the clearest status exception occurred in a policy which contained two clauses providing that death, resulting while the insured is in the military or naval service in time of war, is not covered, and that the insurance is suspended while the insured is in the military or naval service in time of war. It was held that the death of the insured, as a result of a fall from a hotel window while he was on leave from his military post, was within this exception clause. Such a clause is not against public policy. Bending v. Metropolitan Life Insurance Co., 1944, 74 Ohio App. 182, 58 N.E.2d 71. For similarly unequivocal status clauses, see Coit v. Jefferson Standard Life Insurance Co., Cal.App.1945, 161 P.2d 812; State Mutual Insurance Co. v. Harmon, 1945, 72 Ga.App. 117, 33 S.E.2d 105; Huntington v. Fraternal Reserve Ass'n, 1912, 173 Wis. 502, 181 N.W. 819.

The usual status clause does not contain a specific suspension or similar provision. One type merely provides that death occurring "while" the insured is in the armed forces is not covered by the policy. Marks v. Supreme Tribe of Ben Hur, 1921, 191 Ky. 385, 230 S.W. 540, 15 A.L.R. 1277. Death from pneumonia or influenza while the insured is in the armed forces is therefore not covered by the policy. Miller v. Illlinois Bankers' Life Ass'n, 1919, 138 Ark. 442, 212 S.W. 310, 7 A.L.R. 378. When the exception clause stated that service in the armed forces was a "risk" not assumed, the word "risk" has sometimes been held to mean that the clause did not refer to the insured's status, but excepted only such additional risks as resulted peculiarly from military service. Illinois Bankers' Life Ass'n v. Davaney, 1924, 102 Okl. 302, 226 P. 101; Atkinson v. Indiana National Life Insurance Co., 1924, 194 Ind. 563, 143 N.E. 629. Contra: Ruddock v. Detroit Life Insurance Co., 1920, 209 Mich. 638, 177 N.W. 242. Exception clauses stating that death, while the insured was "engaged" in the military or naval service, was not covered have led to narrow distinctions. Thus, death from pneumonia was not excepted when the insured was at a training station remote from the war zone (Boatwright v. American Life Insurance Co., 1921, 191 Iowa 253, 180 N.W. 321, 11 A.L.R. 1085), but was excepted when it occurred in or near the war zone in France (Swanson v. Provident Insurance Co., 1922, 194 Iowa 7, 188 N.W. 677). Likewise, death from pneumonia was not excepted when it occurred while the insured was home on furlough, on the theory that one on furlough is not engaged in the military service. Long v. St. Joseph Life Insurance Co., Mo.Sup. 1923, 248 S.W. 923. Some courts have held that the term "engaged" indicates an intent that only deaths resulting from military duty or hazards peculiar to military service are excepted. Benham v. American Central Life Insurance Co., 1919, 140 Ark. 612, 217 S.W. 462; Barnett v. Merchants' Life Insurance Co., 1922, 87 Okl. 42, 208 P. 271; Rex Health & Accident Insurance, Co., 1920, 74 Ind.App. 507, 129 N.E. 248. Other courts have held that it means that an insured is not covered by the policy during the period when he is in the military service, thus construing the term "engaged" to refer to the insured's status. Bradshaw v. Farmers' & Bankers' Life Insurance Co., 1920, 107 Kan. 681, 193 P. 332, 11 A.L.R. 1091; Olson v. Grand Lodge, 1921, 48 N.D. 285, 184 N.W. 7, 15 A.L.R. 1270; Reid v. American National Assurance Co., 1920, 204 Mo.App. 643, 218 S.W. 957. When the term "enrolled" in the military or naval service was used in the exception clause, it would seem to refer more clearly than "engaged" to military or naval status, but the courts have differed in interpreting it. Compare Young v. Life & Casualty Insurance Co. of Tennessee, 1944, 204 S.C. 386, 29 S.E.2d 482, with Life & Casualty Co. v. McLeod, 1943, 70 Ga.App. 181, 27 S.E.2d 871.

Some insurers, like the defendant herein, have written result clauses rather than status clauses. Recognizing that service in the armed forces exposes many individuals to greater hazards than they faced in civilian life, some insurers have made death "resulting from" or "in consequence of" military or naval service the criterion of non-coverage. In interpreting such a clause, the...