Kearbey v. Reliable Life Ins. Co. of Webster Groves

• Decision Date: 15 July 1975
• Docket Number: No. 9844,9844
• Parties: H. Elvin KEARBEY, Plaintiff-Respondent, v. The RELIABLE LIFE INSURANCE COMPANY OF WEBSTER GROVES, MISSOURI, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 866

526 S.W.2d 866

H. Elvin KEARBEY, Plaintiff-Respondent, v. The RELIABLE LIFE INSURANCE COMPANY OF WEBSTER GROVES MISSOURI, Defendant-Appellant.

No. 9844.

Missouri Court of Appeals, Springfield District.

July 15, 1975.

G. H. Terando, J. Lee Purcell, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for defendant-appellant.

Ernie J. Richardson, Poplar Bluff, for plaintiff-respondent.

Before BILLINGS, C.J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

This is an action by H. Elvin Kearbey for the 'accidental death benefit' contained in an insurance policy issued by defendant-appellant on the life of Thelma Kearbey. Plaintiff is the beneficiary named in the policy. The trial court entered judgment in favor of plaintiff in the amount of $1,500 (the amount of the accidental death benefit) but found in favor of defendant on the issue of additional damages for vexatious refusal to pay. ¹

Defendant appeals from that judgment.

Defendant's answer admitted issuance of the policy but denied that plaintiff was entitled to the accidental death benefit. The answer further alleged 'that the actual cause of the death of Thelma Kearbey is undetermined and the plaintiff has furnished no proof that the death of Thelma Kearbey occurred in such a manner as to entitle plaintiff to coverage under the accidental death benefit of the policy.'

No oral testimony was introduced. The parties stipulated that four exhibits 'shall constitute the evidence to be offered in this cause by plaintiff and defendant.' The four exhibits are the death certificate, the autopsy report, the coroner's report, and the insurance policy.

Entries on the death certificate include: Thelma Kearbey died on October 7, 1972, divorced; her death was caused by 'the added effect of alcohol and butabarbital in the blood'; the autopsy evidence was considered in determining the cause of death; 'Accident, Suicide, Homicide, or Undetermined: Undetermined'; 'Date of Injury: October 7, 1972.'

The essence of the coroner's report: 'I find the cause and place of death to be as follows: Mrs. Thelma Marie Kearbey was D.O.A. at the Doctors Hospital and the results of extensive lab analysis with the autopsy conclude death was due the added effects of alcohol and butabarbital in the body. It is undetermined whether this overdose was accidentally administered or whether it was suicide.'

The autopsy report consists of 16 pages and includes a Summary, an 'Autopsy Protocol' (which includes detailed findings with respect to the examination, internal and external, of various portions of the anatomy), a 'Microscopic Description' (which contains microscopic findings with respect to certain portions of the anatomy, including some of those contained in the 'Autopsy Protocol'), a Diagnosis, a Comment by the pathologist, and laboratory reports pertaining to blood taken from Thelma Kearbey.

The Summary, after describing Thelma Kearbey as 'ex-wife ² of Elvin Kearbey' (respondent), states: 'Thelma Kearbey consumed one-fourth pint of whiskey between 7:30 or 8 p.m., 10--6--72. Mr. Kearbey stated that he fell asleep on the couch and awoke cold so he proceeded to go to bed with his ex-wife Thelma Kearbey. Upon going to bed he stated that she felt cold, so he felt her stomach, and he could not find evidence of breathing. He immediately called the ambulance. Elvin Kearbey stated that this occurred about midnight, and he also stated that approximately two weeks ago the same thing happened and they got her to the Doctors Hospital, but this time, in time to save her life.'

The Autopsy Protocol stated there was no evidence of trauma 'in the face, scalp, hands, or rest of the skin.'

The Diagnosis included: 'blood ethyl alcohol 0.281 percent; barbiturate blood 0.9 mg/100 ml of Butabarbital.'

The pathologist's Comment contains the following: 'No natural disease sufficient to cause death was found. No evidence of mechanical trauma was found. . . . Blood ethyl alcohol was 0.281 percent. In general a stupor or coma will be observed with levels of 0.250 to 0.350 percent. Barbiturate blood level was 0.9 mg/100 ml of Butabarbital. Coma due to Butabarbital in general occurs with levels between 2 and 3 mg per 100 ml. The dose to produce sleep (hypnotic effect) in general has blood levels between 0.5 to 1.5 mg per 100 ml.

'From these findings it is my conclusion that death was due to the added effects of alcohol and Butabarbital. Alcohol at the level of .281 percent and Butabarbital at the level of 0.9 mg. percent. Most likely a coma developed first and then this was followed by slowing of breathing and later on by stopping of breathing and death.'

The stated that the possibilities were suicide, an accidental self-administered overdose, or an accidental or deliberate overdose administered by another person.

The Laboratory Reports contained the following: 'Blood contained 0.251 (sic) percent ethyl alcohol by weight as determined by gas chromatography. . . . The analysis of the blood gave the following results: Barbiturate: 0.9 mg/100 ml--Butabarbital.'

The 'accidental death benefit,' on which this action is based, reads: 'As a part of the policy proceeds, the Company agrees to pay an accidental death benefit equal to the face amount of the policy, upon receipt of due proof that the death of the insured, (1) resulted directly and independently of all other causes from the ³ accidental bodily injury, which, except in the case of drowning, is evidenced by a visible contusion or wound on the exterior of the body, or is visibly manifest on an autopsy if such injury is internal, and (2) occurred within 90 days from the date of such injury, and (3) occurred prior to the termination of this agreement.'

Since the exhibits do not show 'a visible contusion or wound on the exterior of the body,' plaintiff, to be entitled to the accidental death benefit, has the burden of proof to show:

1. The death of Thelma Kearbey directly and independently from all other causes resulted from a bodily injury.

2. The bodily injury, if internal, was visibly manifest on the autopsy.

3. The bodily injury was accidental.

4. The death occurred within 90 days from the date of such injury.

5. The death occurred prior to the termination of the agreement.

Thelma Kearbey's death occurred prior to the termination of the agreement. The death occurred within 90 days 'from the date of such injury' if, in fact, the evidence supports affirmative findings with respect to the first three of the listed elements of plaintiff's cause of action. Thus the outcome of this appeal hinges upon whether the evidence shows the existence of the first three elements.

It is the duty of this court to interpret the insurance policy and to enforce it as it is written and not to remake it. Brugioni v. Maryland Cas. Co., 382 S.W.2d 707, 710(2) (Mo.1964). This court may not create an ambiguity where none is present so as to construe the policy liberally, Gabel v. Bird, 422 S.W.2d 341, 343(2) (Mo.1967), and may resort to construction, in the usual sense, of the policy only when its language, in its ordinary meaning, is indefinite, ambiguous or equivocal. State Dept. of P. H. & W. v. Hanover Ins. Co., 431 S.W.2d 141, 143(1) (Mo.1968); 44 C.J.S. Insurance § 290, p. 1139.

I. Did the death of Thelma Kearbey directly result from a bodily injury?

The policy contains no definition of the term 'bodily injury,' nor indeed of any words or terms.

The term 'bodily injury' is defined, in Black's Law Dictionary, Rev.4th Ed., 1968, as follows: 'Any physical or corporeal injury; not necessarily restricted to injury to the trunk or main part of the body as distinguished from the head or limbs; a physical injury only; a cut, bruise, or wound; a localized abnormal condition of the living body; injury caused by external violence.'

In 44 Am.Jur.2d Insurance §§ 1223, p. 72, it is said: 'The term 'bodily injury' is often used in describing the coverage of accident insurance policies or provisions. It is difficult, however, to lay down an accurate and definte general rule as to what constitutes 'bodily injury' within the meaning of accident policies, or life policies with accident features, and the determination of the question depends upon the facts of the case. . . .'

It should be noted that the policy, in addition to requiring a 'bodily injury,' requires (except in case of drowning) that the same be 'evidenced by a visible contusion or wound on the exterior of the body, or is visibly manifest on an autopsy if such injury is internal.' The presence of a 'contusion or wound' is required if the injury is an external one but no such requirement exists with respect to an internal injury (the requirement that the latter be 'visibly manifest on an autopsy' will be discussed later).

A factually similar case is Malanga v. Royal Indemnity Co., 101 Ariz. 588, 422 P.2d 704 (banc 1967). There the insured Ellis died from an overingestion of barbiturates and alcohol. The policy insured against 'loss, resulting directly and independently of all other causes, from accidental bodily injury sustained during the term of the policy. . . .' The insurer argued that the death of Ellis did not result from 'accidental bodily injury and that unless there was a cut, bruise or a rupture of some part of the body, there has been no bodily injury within the meaning of the policy.'

At p. 707 the court said: 'We cannot agree with this contention. If the Company had intended to limit the words 'bodily injury' to injuries which were traumatic in nature, it might easily have done so by simply inserting such a provision in the policy. At best, the fact that such limiting provision is not present makes it uncertain whether the phrase 'bodily injury' is so limited. When the language of such a policy is unclear this Court has been and continues to be guided by the general rule '* * * that policies of this nature are construed in favor of the injured when any ambiguity appears therein.' Dickerson...