INA Life Ins. Co. v. Brundin, 2167
| Decision Date | 10 March 1975 |
| Docket Number | No. 2167,2167 |
| Citation | 533 P.2d 236 |
| Parties | INA LIFE INSURANCE COMPANY et al., Appellants, v. Luverne J. BRUNDIN, Appellee. |
| Court | Alaska Supreme Court |
Arden E. Page, Burr, Pease & Kurtz, Inc., Anchorage, for INA Life Insurance Co. and Insur. Co. of N. A.
Robert L. Richmond, Atkinson, Conway, Young, Bell & Gagnon, Inc., Anchorage, for Beneficial Standard Life Insur.
Marcus R. Clapp. Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellee.
Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER and FITZGERALD, JJ.
This appeal arises from a superior court jury verdict rendered in favor of appellee LuVerne J. Brundin in a suit to recover benefits under several identical accidental death and dismemberment policies. Milton Brundin, appellee's husband, died following surgery for hemorrhoids in July 1972. During the surgery, Brundin's heart stopped without warning. The physicians in attendance managed to restore his heartbeat, but Brundin had lapsed into a coma from which he never recovered.
Shortly after the death, LuVerne Brundin filed claims as beneficiary under the policies at issue here. Appellants rejected the claims on the grounds that the death was not covered by the terms of the policies. Appellee then filed suit. After a trial and verdict in favor of appellee, appellants filed this appeal and appellee cross-appealed on the issue of the amount awarded to her as costs for expert witness fees.
At trial, appellee offered several expert witnesses to testify as to the facts surrounding Brundin's death and possible causes of his death. There was agreement that the immediate cause of death was a cardiac arrest. However, the expert witnesses could not arrive at a conclusion as to the exact cause of the cardiac arrest. Among the possible etiologies mentioned were acute myocardial infarction or arrhythmia; hypotension; anoxia secondary to position; 1 idiosyncratic reaction to the anesthesia; pulmonary embolism; dissecting aneurysm, and a sudden tearing of the aorta. Other unknown factors could also have been contributing causes. 2
Further, it was established at trial that at the time of the operation Brundin was 58 years old, was 75 pounds overweight, had high blood pressure, may have been diabetic, drank several martinis a night and smoked a pack and a half of cigarettes a day. Testimony indicated that these factors could predispose a person to cardiovascular problems.
Appellants attempted to demonstrate that none of the experts testifying was able to connect the cardiac arrest and subsequent death with any particular causative incident within the surgical process. Appellee was content to elicit testimony that the cardiac arrest was somehow related to the surgery, although the exact mechanism of the cardiac arrest could not be determined with any certainty. It is from these conflicting approaches to the cause of Brundin's death that the major issues in this appeal arise.
Each of the policies at issue here 3 insures against death through bodily injury and defines 'injury' as:
bodily injury caused by an accident resulting directly and independently of all other causes in loss . . ..
The primary issue in this appeal focuses on the superior court's interpretation of the coverage provided by this provision. In the instructions to the jury, the court defined 'accident' as 'an unexpected, unforeseen and abnormal occurrence'. Appellants contend that this instruction could have led the jury to conclude that the cardiac arrest was the 'accident' causing death. In appellants' view, the proper definition of 'accident' would require a showing that a mistake or misstep occurred in the course of the operation, and that that misstep was the direct cause of the cardiac arrest. Thus, we must first determine the legal meaning of the policy language.
There are two main lines of authority interpreting insurance provisions like that quoted above. The cases relied upon by appellants construe such provisions strictly and emphasize the distinction between accidental results and accidental means. 4 These precedents would have required LuVerne Brundin to prove that the cause of the death was itself an accident, that is, that some actual mistake or misstep occurred during the surgery which caused the death. It would not be enough under this line of authority to prove that the result itself was accidental in the sense of being unexpected and unforeseen. As stated in 10 Couch on Insurance 2d section 41:112, at 142 (2d ed. R. Anderson 1962):
(I)f an operation is not necessitated by an injury resulting from an accident, death occurring during or following the operation can be considered 'accidental' only when it is the result of mishap or misadventure in operative procedure. 5
Under the court decisions relied on by appellants, the fact that the death was unexpected does not alone make it accidental. 6 For example, in Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W. 907 (1924), the court found no 'accidental means' in a death following surgery for hernia repair. It noted that where the insured voluntarily undertook the surgery, it must be proven that something unforeseen or unusual occurred during the operation, and that the unforeseen or unusual occurrence caused the death. 7 Some cases hold that even if the result is not clearly foreseeable, death as the result of a voluntary undertaking is still not covered. 8 In the case at bar, appellants point out that there was no evidence presented here of any misstep or mistake in operative procedures relating to hemorrhoidectomy, 9 and that the insured undertook the surgery voluntarily, knowing that unexpected death can occur during surgery without any misstep in surgical procedures.
Appellee points to a growing number of jurisdictions 10 which have adopted a broader reading of policy language like that at issue here. This other main line of authority strives to apply the controlling policy language in a manner in which the average man would understand it. 11 An early expression of the rationale behind this approach was expressed by Justice Cardozo in his dissent in Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934 (1934). There Justice Cardozo said:
The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog. 'Probably it is true to say that in the strictest sense and dealing with the region of physical nature there is no such thing as an accident.' . . . On the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of accident insurance. It is his reading of the policy that is to be accepted as our guide, with the help of the established rule that ambiguities and uncertainties are to be resolved against the company.
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When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means. . . .
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If there was no accident in the means, there was none in the results, for the two are unseparable. . . . There was an accident throughout, or there was no accidnet at all. 12
The cases comprising this second line of authority generally look to the reasonable understanding or expections of the average person: if in common parlance an 'accidental result' is an 'accident', the accidental results should be covered. See, e. g., Gaskins v. New York Life Insurance Co., 235 La. 461, 104 So.2d 171 (1958). 13
An example of the reasoning behind this line of cases is found in Knight v. Metropolitan Life Insurance Co., 103 Ariz. 100, 104, 437 P.2d 416, 420 (1968):
One paying the premium for a policy which insures against 'death by accidental means' intends to provide benefits to his family or named beneficiary in the event he should suffer death caused by accident as opposed to death caused by other means, such as suicide, murder, disease or natural death. . . .
The term 'accidental means' as used in this policy should not be construed in a technical sense but should be given its ordinary and popular meaning according to common speech and usage and the understanding of the average man . . .. Insurance policies upon which the public relies for security in case of accident should be free from find distinctions which few can understand until pointed out by lawyers and judges . . .. (citations omitted)
Similarly, the New York Court of Appeals approved of a jury instruction which defined 'accidental means' as 'those which produce effects which are not their natural and probable consequences'. 14 The court said:
Legal scholars have spent much effort in attempts to evolve a sound theory of causation and to explain the nature of an 'accident'. Philosophers and lexicographers have attempted definition with results which have been productive of immediate criticism. No doubt the average man would find himself at a loss if asked to formulate a written definition of the word. Certainly he would say that the term applied only to an unusual and extraordinary happening; that it must be the result of chance; that the cause must be unanticipated or, if known, the result must be unexpected. . . .
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In this State there is no longer any distinction made between accidental death and death by accidental means, nor between accidental means and accidental results. As was said by Chief Judge Crane . . .: 'Accidental death means death by accident, and excludes suicide; death occurring through 'accidental means' in this case and under these circumstances is the same as death occurring 'by means of an accident. " . . . (A)ccidental means are those which produce effects which are not their natural and probable consequences. . . . (I) nsurance policies upon which the public relies for security in case of accident should be plainly written in understandable English 'free from fine distinctions which few can...
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