Life Ins. Co. of Virginia v. McDaniel

• Decision Date: 17 March 1977
• Docket Number: No. 3,No. 53633,53633,3
• Parties: The LIFE INSURANCE COMPANY OF VIRGINIA v. Peggy H. McDANIEL
• Court: Georgia Court of Appeals

Page 379

234 S.E.2d 379

141 Ga.App. 746

The LIFE INSURANCE COMPANY OF VIRGINIA v. Peggy H. McDANIEL.

No. 53633.

Court of Appeals of Georgia, Division No. 3.

March 17, 1977.

Rehearing Denied March 30, 1977.

McClure, Ramsay, Struble & Dickerson, John A. Dickerson, Toccoa, for appellant.

Adams & Clifton, Alton M. Adams, Toccoa, for appellee.

WEBB, Judge.

Thomas B. McDaniel, deceased husband of the plaintiff in this action, was riding his motorcycle with a friend on April 25, 1975, when he lost control and the motorcycle landed on top of him with the handlebar thrust into his right side, causing intense pain. He was hospitalized the next afternoon when the abdominal pain intensified, and exploratory abdominal surgery was performed. During the operation his pulse was rapid and it increased after surgery, becoming "extremely fast." He was treated primarily with drugs for his heart, but did not respond and died shortly after midnight on the fourth day after admittance. An autopsy confirmed that the cause of death was pulmonary embolus.

McDaniel had previously suffered from pulmonary embolus, with a history of forming blood clots in his leg. The insurer refused to pay accidental death benefits under the policy insuring McDaniel's life and Mrs. McDaniel, as primary beneficiary, brought this action seeking recovery of $5,000, the amount of the accidental death benefit under the contract, plus 25% bad faith penalties and attorney fees. The trial judge denied the insurer's motion for directed verdict and the jury returned a verdict for Mrs. McDaniel for $5,000 on the insurance policy, $1,250 for bad faith penalties and $1,400 attorney fees. The insurer appeals and we reverse.

The insurance contract here provided in pertinent part for accidental death benefits "Upon receipt at its Home Office of due proof that the Insured has, . . . died as the result, directly and independently of all other causes, from bodily injuries caused solely by external, violent and accidental means . . . No payment shall be made under this provision if the Insured's death results, directly or indirectly, wholly or partially, from: . . . (b) disease or bodily or mental infirmity or medical or surgical treatment therefor . . . "

Under such provisions this court has consistently held that if the insured's death was contributed to or caused by disease or bodily infirmity the plaintiff was not entitled to recover (Harris v. Metropolitan Life Ins. Co., 66 Ga.App. 761, 19 S.E.2d 199 (1942)), and that the burden of proving liability on the part of the defendant was on the plaintiff. Green v. Metropolitan Life Ins. Co., 67 Ga.App. 520, 21 S.E.2d 465 (1942) and cits; Prudential Ins. Co. of America v. Kellar, 213 Ga. 453, 99 S.E.2d 823 (1957); Interstate Life & Accident Ins. Co. v. Upshaw, 134 Ga.App. 394, 398, 214 S.E.2d 675 (1975).

The evidence introduced here to establish the insurer's liability was primarily the testimony of Dr. Knowlton, McDaniel's attending physician. He stated on direct examination that McDaniel sought medical attention when his abdominal pain following the motorcycle accident became severe; and that McDaniel's hospital admission examination recorded "large varicosities on both legs" and "previous difficulty with pulmonary blood clot." Testimony as to the exploratory abdominal surgery was as follows: "A. . . . (W)hen we opened his abdomen, we found a bluish discoloration of the tissues in the back of the abdomen, an area we call the retro-peritoneal space. We explored the retro-peritoneal space and found several minor blood vessels had bled and caused a collection of blood in this area. Q. Did you have an occasion to treat him after this operation? A. Yes, sir. Prior to the surgery, in consultation with Dr. Hay, it was decided that since the patient had had previous difficulty with pulmonary embolus, or blood clot, going through his vena-cava to his lung, that a ligation of the vena-cava was needed to prevent this from becoming a post-operative complication, and so at the time of surgery, a vena-cava ligation was done also. Q. Now you've testified that you had knowledge that he had a previous history of a pulmonary embolus? A. Yes, sir. Q. How did you obtain that previous history, please? A. Both from his medical records and from a discussion with Dr. Hay, Dr. Setzer, who had attended him previously, and from the patient. Q. Would you tell us what a pulmonary embolus is? A. This is a blood clot that lodges in the blood vessels of the lung. The origin is usually from the leg and in this particular patient, he had a history of forming the blood clots in his leg, so we were relatively certain that his blood clot had come from his leg . . . Q. Do your records reflect when was the first time that you or a member of the Toccoa Clinic first had any knowledge as to the time (of) Mr. McDaniel's complaint as to pulmonary embolus? A. The records indicate that he was treated in February of 1973, and felt at that time to have a pulmonary embolus. Q. Following the inferior vena-cava ligation, what, if anything else did you do for Mr. McDaniel? A. That essentially was the surgical treatment. Q. Now, can you tell us what, if anything, happened to Mr. McDaniel? A. He was transferred from the recovery room to the intensive care unit of Stephens County Hospital. During his operation, he had a rapid pulse which was one of our indications for proceeding with surgery. In the recovery room his pulse became a little more rapid and several hours after surgery, his pulse became extremely fast. He was treated medically, primarily by Dr. Hay, with drugs for his heart and did not respond and progressed to his death which was shortly after midnight. Q. Of what night, please? A. That was it was 12:25 a. m. on April 30, 1975. Q. With reference to your description of the rapid increase of the pulse rate, what would cause that? A. The most likely cause was a pulmonary embolus clinically and, of course, in this particular case this was confirmed by autopsy as being pulmonary embolus . . . Q. Based upon your...