Kasper v. Provident Life Ins. Co., s. 9612

• Citation: 285 N.W.2d 548,1 A.L.R. 4th 1305
• Decision Date: 11 October 1979
• Docket Number: Nos. 9612,9612-B and 9612-C,s. 9612
• Parties: Monica R. KASPER, Plaintiff/Appellant, v. PROVIDENT LIFE INSURANCE COMPANY, Defendant/Appellee. Monica R. KASPER, Plaintiff/Appellant, v. NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY, Defendant/Appellee. Monica R. KASPER, Plaintiff/Appellant, v. BANKERS LIFE COMPANY, Defendant/Appellee. Civ.
• Court: North Dakota Supreme Court

Page 548

285 N.W.2d 548

1 A.L.R.4th 1305

Monica R. KASPER, Plaintiff/Appellant, v. PROVIDENT LIFE INSURANCE COMPANY, Defendant/Appellee.

Monica R. KASPER, Plaintiff/Appellant, v. NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY, Defendant/Appellee.

Monica R. KASPER, Plaintiff/Appellant, v. BANKERS LIFE COMPANY, Defendant/Appellee.

Civ. Nos. 9612, 9612-B and 9612-C.

Supreme Court of North Dakota.

Oct. 11, 1979.

Rehearing Denied Nov. 28, 1979.

Richard P. Gallagher, Mandan, for plaintiff/appellant.

Leonard H. Bucklin, Zuger & Bucklin, Bismarck, for defendants/appellees, Provident Life Insurance Company, Northwestern National Life Insurance Company, and Bankers Life Company.

PAULSON, Justice.

Monica R. Kasper ("Monica") is the widow of Robert W. Kasper ("Kasper"), and is the beneficiary on several life insurance policies insuring against the accidental injury and death of Kasper. Shortly after Kasper's death, Monica made a claim for the accidental death benefits ("double indemnity") provided under the policies. The companies refused to pay and Monica brought suit in the Morton County District Court. The actions against the companies were consolidated and, after trial, judgment was entered in favor of the companies. Monica appeals from that judgment. We affirm.

Robert Kasper died on September 16, 1972. At the time of his death he was insured by several insurance policies. Three of these policies were with the following companies which are parties to this appeal: Provident Life Insurance Company ("Provident"); Northwestern National Life Insurance Company ("Northwestern"); and Bankers Life Company ("Bankers"). A fourth company, Midland National Life Insurance Company ("Midland"), has settled and is not a party to this appeal. Each of the companies has a provision in its policy providing for payment of extra amounts of money if death occurs due to causes specifically set out in each policy. Such a provision is commonly known as an "accidental death" or "double indemnity" provision. A small additional premium is charged for this extra coverage.

On the day of Robert W. Kasper's death, he was bird hunting south of Fort Rice in Morton County with a group of family members and friends. A prairie fire was started accidentally when a fiery wad fell into the tall grass nearby, caused by the discharge of a companion's shotgun. Kasper, a rather heavy man weighing 200 pounds and only 5'6 in height, ran over to assist his companions. Kasper vigorously fought the blaze, stamping it with his feet and swinging his jacket, in an attempt to extinguish the fire. After a few minutes of such activity, Kasper was observed to suddenly collapse and fall forward into the fire, and his death was apparently instantaneous.

Kasper's companions attempted to revive him by artificial respiration, but to no avail. He was taken to Mandan Hospital where he was pronounced dead on arrival by Dr. P. M. Ocampo, Jr., acting coroner for Morton County. Dr. Ocampo signed the death certificate on September 19, 1972, and noted thereon that the cause of death was acute myocardial infarction (heart failure). See Abrahamson v. Amos, 245 N.W.2d 888 (N.D.1976) for discussion as to the significance of a death certificate in determining cause of death. No autopsy was ever performed on the body of Robert Kasper.

The policies of Provident, Northwestern, and Bankers each contain very similar provisions, because Chapter 26-03 of the North Dakota Century Code requires that all life insurance policy forms be approved by the North Dakota Commissioner of Insurance or conform to certain guidelines set out in Chapter 26-03. Because of the similarity of the policy provisions and the fact that all of the claims arose from the same occurrence, the actions were consolidated for trial and will remain consolidated on this appeal.

There is no dispute that all of the premiums were paid and that all of the policies were in effect at the time of Kasper's death. The companies have paid the regular life insurance benefits but have withheld payment of the extra "accidental death" benefits.

One of the first issues we will discuss on appeal is whether or not the trial court's findings of fact are erroneous. The case was tried without a jury and the trial judge sat as a finder of fact. Findings of fact by the trial court, in a case tried upon the facts without a jury, will not be set aside unless clearly erroneous. Bladow v. Bladow, 249 N.W.2d 917, 920 (N.D.1977); Stockmen's Insurance Agency v. Guarantee Reserve Life Insurance Co., 217 N.W.2d 455, 462-63 (N.D.1974). As the court held in Bladow, quoting from Eakman v. Robb, 237 N.W.2d 423 (N.D.1975), paragraphs 4 and 5 of the syllabus:

" '4. A finding is "clearly erroneous" only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. The mere fact that the appellate court might have viewed the facts differently, if it had been the initial trier of the case, does not entitle it to reverse the lower court.

" '5. Questions of fact decided by the trial court upon conflicting evidence are not subject to reexamination by the Supreme Court.' " Bladow, supra at 920, quoting Eakman, supra.

In the instant case, Monica asserts that the trial court erroneously determined that Kasper's death was caused by his preexisting bodily condition and not by his exertion in fighting the prairie fire. It is a well-settled rule that evidence must be considered in the light most favorable to the party in whose favor the verdict was rendered. Bladow, supra, 249 N.W.2d at 920; Brinkman v. Mutual of Omaha Ins. Co., 187 N.W.2d 657, 662 (N.D.1971).

In the instant case, the court heard the testimony of expert witnesses regarding the probable cause of death. Each side presented expert testimony and the court chose to adopt the testimony offered by Dr. Marlin Johnson, who testified as defendant's witness. In Finding of Fact No. 11, the trial court stated:

"11. It is most likely that the decedent either had a blood clot or was in the process of one forming prior to the exertion, or there was such an accumulation of fatty content within the circulatory system, or some other bodily disease or infirmity which caused a blood vessel leading to the heart to be occluded. For the Court to find an absence of bodily disease or infirmity contributing to the death would be to indulge in sheer speculation. The Court finds that the sudden death of Robert Kasper occurred when (as testified to by Dr. Marlin Johnson) there was a sudden change in the heart rhythm involved as a part of that general type of heart attack known as a 'myocardial infarction' which results when one, and not others, of the blood vessels supplying the heart become blocked or occluded because of bodily disease or infirmity, and a portion of the heart muscle dies leaving other portions working, and the heart rhythm then became severely distorted, or fibrillated, resulting in instant death."

It is clear that the trial court believed that Kasper's death resulted from a preexisting bodily condition and not as a direct result of his exertion in fighting the prairie fire.

Grabau v. Hartford Accident and Indemnity Company, 149 N.W.2d 361 (N.D.1967) is a similar case. In Grabau, insured was hunting in Montana on October 26, 1964. He walked 100 yards and fired a 30.06 deer rifle three times at an antelope. Grabau suddenly became ill and was returned to his home in Jamestown on October 27. He was sent to a Fargo hospital where he was found to have a ruptured aneurysm and he died on November 18, 1964. One issue was whether or not a preexisting disease had contributed to his death. The court accepted testimony which indicated that Grabau's death had resulted, at least in part, from a preexisting physical condition. "The testimony of the several witnesses that is, the weight and credibility of such testimony, including that of the medical experts was for the court." Grabau, supra 149 N.W.2d at 364; 32 C.J.S. Evidence § 567-69.

Brinkman v. Mutual of Omaha Insurance Company, 187 N.W.2d 657 (N.D.1971), is another similar case. In Brinkman, plaintiff brought an action to recover accidental death benefits. The policy contained clauses similar to the clauses in the policies covering Kasper. The insured, Mr. Brinkman, was found dead at the wheel of his car in a ditch on a rural road near his farm home. An autopsy was performed. The doctor certified on the death certificate that sudden coronary thrombosis was the cause of death. Even though conflicting testimony was introduced regarding the cause of death, the trial court concluded that coronary thrombosis was the cause of death. We upheld that holding on appeal, noting that the evidence must be reviewed in the light most favorable to the party in whose favor the verdict is rendered. Brinkman, supra 187 N.W.2d at 662. It is a well-settled rule that it is for the finder of fact to determine whether death was proximately caused by disease or accident. 10 Couch on Insurance 2d § 41:92 (1962).

In Jacobson v. Mutual Benefit Health & Accident Ass'n, 70 N.D. 566, 296 N.W. 545 (1941), the insured was covered by a policy which contained an "accidental means clause", but which did not contain the so-called "exclusionary clause". Insured was a 50-year-old man in "good, robust, and strong physical condition". He had been attempting for two hours to load a wild horse into a truck. The doctor's opinion was that death resulted from "the tussle with the horse". The court said "The credibility of the different witnesses, including the medical experts, and the weight to be given to their testimony, were for the jury". Jacobson, supra 296 N.W. at 555.

Monica also contends that there was error in Finding of Fact No. 9, which reads as follows:

"9. The cause of death was an acute myocardial infarction, causing instant death. Mr. Kasper was an extremely obese person. The...