Moss v. Protective Life Ins. Co.

• Citation: 203 Ga.App. 389,417 S.E.2d 340
• Decision Date: 25 February 1992
• Docket Number: No. A91A1749,A91A1749
• Parties: MOSS v. PROTECTIVE LIFE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 340

417 S.E.2d 340

203 Ga.App. 389

MOSS v. PROTECTIVE LIFE INSURANCE COMPANY.

No. A91A1749.

Court of Appeals of Georgia.

Feb. 25, 1992.

Reconsideration Denied March 16, 1992.

Certiorari Denied May 21, 1992.

Clarence L. Martin, Savannah, for appellant.

Miller, Simpson & Tatum, John M. Tatum, Robert A. Lewallen, Jr., Savannah, for appellee.

BIRDSONG, Presiding Judge.

Patrina Moss appeals from the grant of summary judgment to Protective Life Insurance Company in her action to collect on a group accidental death insurance policy insuring her deceased husband, Sanford Moss. She contends summary judgment was not authorized because genuine issues of material fact existed about whether her husband's death was accidental.

Protective Life's motion for summary judgment asserted Sanford Moss' death was not accidental and the motion was supported with the deposition testimony of two police officers stating that they had to shoot and kill Sanford Moss because he fired at them and wounded one of the officers. Patrina Moss' response contended that notwithstanding this testimony, issues of fact existed on whether Sanford Moss opened a door quickly, whether he was ordered to drop his weapon, and whether excessive force was used. She also contended that Sanford Moss could not appreciate the consequences of his actions because he was intoxicated with a blood alcohol content of .27 grams percent. The trial court, however, found these matters were not material and granted summary judgment to Protective Life. Held:

The question presented is whether a triable issue exists on whether Sanford Moss' death was accidental. Although the policy defines neither accident nor accidental death, Georgia law defines an accident as "an event which takes place without one's foresight or expectation or design." OCGA § 1-3-3(2). Further, to recover under a policy such as this one, it must be shown that Sanford Moss' death was the result of an unforeseen, unexpected, or unusual act. Green v. Metropolitan Life Ins. Co., 67 Ga.App. 520, 525, 21 S.E.2d 465. If Sanford Moss was killed while the aggressor in an assault and he knew or should have known that he might be killed as a result, his death was not accidental. Drew v. Life Ins. Co., 170 Ga.App. 147, 151, 316 S.E.2d 512; Metropolitan Life Ins. Co. v. Anglin, 66 Ga.App. 660, 19 S.E.2d 171. In these instances, the test focuses on whether he should have appreciated he was putting his life in hazard. Carolina Life Ins. Co. v. Young, 99 Ga.App. 848, 110 S.E.2d 67.

The police officers are the only remaining witnesses to the events surrounding Sanford Moss' death. While Patrina Moss can testify about events occurring before the two police officers arrived and about what she heard later, the two police officers are the only surviving witnesses to the actual events resulting in Sanford Moss' death. The officers' depositions show they arrived in uniform at the Moss home in response to a call from Patrina Moss, and after they arrived, one of the officers spoke with Sanford Moss through a closed door. She identified herself as a police officer and asked him to come out. Sanford Moss replied, in effect, that he would come out when he was dressed.

Although nothing in the officers' depositions or Patrina Moss' deposition shows there was any hostility between the officers and Sanford Moss, or any other reason for his action, Sanford Moss suddenly came out of the room holding a .357 magnum pistol loaded with hollow point ammunition, and immediately shot one of the officers. Thereafter Sanford Moss turned and fired a second shot at the other officer; he was then killed by return fire from the two officers. The record shows, without contradiction, that Sanford Moss fired first and that the wounded officer's pistol had not left his holster when he was shot. This officer escaped serious injury or death because he was wearing a protective vest. Further, the transcript of the coroner's inquest shows the police investigation of the shooting, including the physical evidence at the scene, and the testimony of the medical examiner who conducted the autopsy of Sanford Moss, confirmed the officers' testimony. The record contains no facts either explicitly explaining Sanford Moss' actions, or from which an explanation could be inferred.

Whether Sanford Moss appreciated or expected that shooting at two police officers reasonably would result in his death by return fire is usually a question for the jury. Drew v. Life Ins. Co., supra 170 Ga.App. at 151, 316 S.E.2d 512; Prudential Ins. Co. v. McLellan, 76 Ga.App. 126, 132, 44 S.E.2d 915. Nevertheless, issues which are usually decided by the jury, "may be decided by the court in plain and palpable cases where 'reasonable minds cannot differ as to the conclusion to be reached.' [Cit.]" Lau's Corp. v. Haskins, 261 Ga. 491, 493, 405 S.E.2d 474. This is such a case.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial." Id. at 491.

To collect on this accidental death policy, Patrina Moss would have the burden of proving at trial that the acts causing Sanford Moss' death were accidental, i.e., unforeseen, unexpected, or unusual. Liberty Nat. Life Ins. Co. v. Morris, 132 Ga.App. 631, 642, 208 S.E.2d 637. Since the matters supporting Protective Life's motion showed that Sanford Moss' death...