Orton v. Liberty Nat. Life Ins. Co.
| Citation | 402 So.2d 978 |
| Parties | Clemmie N. ORTON v. LIBERTY NATIONAL LIFE INSURANCE CO. Civ. 2336. |
| Decision Date | 09 July 1980 |
| Court | Alabama Court of Civil Appeals |
Edward L. Hardin, Jr. and Leon Kelly, Jr., Birmingham, for appellant.
Charles D. Stewart of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellee.
This is an appeal from a summary judgment. Plaintiff filed suit against defendant Liberty National Life Insurance Company for accidental death benefits under four policies of insurance issued by the defendant on the life of Henry E. Orton, Sr. Three of the policies were life insurance policies which paid double indemnity for accidental death. The other was an accident policy. The defendant has paid all non-accidental death benefits due but refused to pay any of the benefits for accidental death.
Defendant answered plaintiff's complaint alleging, inter alia, that the decedent's death was not "accidental" within the terms of the policies.
Defendant moved for summary judgment supported by answers to interrogatories, an affidavit by the medical examiner along with a copy of his report of autopsy, a certified copy of the death certificate, and copies of the four insurance policies.
Plaintiff filed a written response supported by the affidavits of the investigating officers and a copy of their incident report.
Defendant's motion for summary judgment was granted. Plaintiff appeals.
Summary judgment is appropriate only when all the materials on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the non-moving party cannot recover under any discernible set of circumstances. Rule 56, ARCP; Bledsoe v. Cargill, Inc., 376 So.2d 735 (Ala.Civ.App.1979).
Defendant argues that it was entitled to summary judgment because the evidence shows conclusively that a disease caused the death of the insured, and no accidental death benefits are due.
The clauses relied upon by the defendant appear in the insurance policies in pertinent part as follows:
ACCIDENTAL DEATH Subject to the following exceptions accidental death means death which is caused solely and directly by accidental injury.... Accidental injury means bodily injury effected solely through external and accidental means.
Exceptions In the following cases the benefit for natural death will be payable in lieu of the accidental death benefit: ... (3) if death is caused or contributed to by ... (b) any disease, illness, or infirmity or medical or surgical treatment therefor,....
The clause appears in the accident policy under Exceptions and Limitations and reads in pertinent part:
EXCEPTIONS AND LIMITATIONS No benefits of any kind will be payable for losses resulting directly or indirectly, wholly or partly, from any one of the following causes: (1) Bodily or mental infirmities or disease in any form or medical or surgical treatment thereof; ....
The facts of this case are somewhat bizarre. The deceased was the former husband of the plaintiff. On the afternoon of his death, plaintiff discovered him at her home. He had been drinking and was highly intoxicated. She asked him to leave and he did so. She last saw him alive at approximately 7:00 P.M.
At approximately 6:45 A.M. the following morning, the plaintiff discovered the body of the insured lying in the fork of a small tree in her back yard.
There were affidavits from investigating officers who saw the body. They stated it had on one shoe. The other shoe was found about a block away. There were some superficial bruises and scratches. The head lay at a peculiar angle. There was a low wall nearby. It was the conclusion of the officers from their observation that the deceased fell from the wall into the tree and died from a broken neck.
The medical evidence presented by defendant was without conflict. It consisted of the affidavit and report of the medical examiner who performed an autopsy and the report of the Alabama Department of Toxicology which examined the blood and urine of the deceased. The autopsy showed death was caused from acute ethanolism with fatty change and cirrhosis of the liver. There was no evidence of a broken neck or material traumata. The blood contained .30% alcohol. The death certificate showed death by natural cause.
Plaintiff contends the facts presented, when viewed most favorably for plaintiff, present at least a scintilla that the deceased's death was accidental within the parameters established in the case of Liberty National Life Insurance Co. v. Reid, 276 Ala. 25, 158 So.2d 667 (1963).
If that contention is correct, summary judgment entered upon motion of defendant was erroneous. Mims v. Louisville Title Insurance Co., 358 So.2d 1028, 1029 (Ala.1978).
The court in Reid, citing as authority the case of First National Bank of Birmingham v. Equitable Life...
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Alabama Power Co. v. Smith
...This they say was enough to allow them to survive motions for directed verdict and JNOV. Orton v. Liberty National Life Insurance Company, (MS. April 10, 1981) 402 So.2d 978 (Ala.1981); Day v. Friedman & Company, 395 So.2d 54 (Ala.1981). The word "scales" in this case has been used in conne......
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Ex parte Orton
...& Etheredge, Birmingham, for respondent. BEATTY, Justice. Certiorari was granted to review the decision of the Court of Civil Appeals, 402 So.2d 978, which held that summary judgment was properly granted by the trial court. We reverse and This action was brought by the plaintiff for acciden......
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Orton v. Liberty Nat. Life Ins. Co.
...In accordance with the mandate of the Supreme Court entered April 10, 1981, 402 So.2d 980, the decision of this court entered July 9, 1980, 402 So.2d 978, is set aside and it is the judgment of the court that the judgment of the trial court granting summary judgment to the defendant be and ......