LOLA BROWN WEIL et al., Plaintiffs and Respondents, v. FEDERAL KEMPER LIFE ASSURANCE COMPANY, Defendant and Appellant.
No. S029652
Supreme Court of California
Jan. 31, 1994.
125
Galton & Helm, Nancy A. Jerian and Daniel W. Maguire for Defendant and Appellant.
Richard E. Barnsback, Phillip E. Stano, LeBoeuf, Lamb, Leiby & MacRae, Rita M. Theisen and Jennifer Beckett as Amici Curiae on behalf of Defendant and Appellant.
Wylie A. Aitken, Richard A. Cohn and Darren O‘Leary Aitken for Plaintiffs and Respondents.
OPINION
GEORGE, J.—In this case we must determine whether a life insurance policy covering loss of life occurring as the direct result of bodily injury inflicted solely by “external, violent and accidental means” provides coverage when the insured‘s voluntary ingestion of cocaine resulted in a lethal overdose. Plaintiffs, beneficiaries of the insured, contend that the drug overdose was accidental and therefore that the policy provides coverage. Because the insured‘s voluntary ingestion of an illegal and dangerous substance caused his death, defendant insurer contends death did not result from bodily injury inflicted solely by “accidental means,” within the terms of the insurance policy.
We conclude, first, that the distinction in policy language between “accidental means” and “accidental results,” recognized in our prior decisions, should be preserved, and second, that the voluntary ingestion of a known hazardous and illegal substance does not provide a basis for coverage within the terms of an insurance policy affording coverage for death by “accidental
I
On April 14, 1975, defendant Federal Kemper Life Assurance Company issued a life insurance policy to the employer of Michael P. Weil, the deceased, naming Weil as the insured. The policy provided insurance on Weil‘s life, affording a benefit of $100,000. The policy included an “Additional Accidental Death Benefit” supplementary rider, affording an additional benefit of $100,000 in the event the insured‘s death occurred solely by accidental means and no other terms in the “rider” excluded coverage based upon the circumstances of the death.1 Plaintiffs Lola and Michelle Weil (Michael Weil‘s mother and sister, respectively) are the beneficiaries named in the policy.
The supplementary rider to the policy provides in pertinent part as follows:
“BENEFITS—The Company agrees, subject to the provisions of this Policy, to immediately pay to the Beneficiary or Beneficiaries, in addition to the other benefits provided by this Policy, the amount of additional accidental death benefit specified in the Policy Specifications, if due proof is furnished to the Company at its Home Office that the Insured, while this Policy is in full force and effect, has suffered the loss of life as the direct result of bodily injury, independent of all other causes, effected solely through external, violent and accidental means, as evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy), and that the date of death occurred within ninety days after such injury.” (Italics added.)
In another section, the rider also provides in relevant part:
“RISKS NOT ASSUMED—The Company shall not be liable for any payment hereunder if the Insured‘s death: . . . [¶] B. Results directly or indirectly from any of the following causes: [¶] . . . [¶] (2) suicide, sane or insane, or any attempt thereat; [¶] . . . [¶] (4) committing an assault or felony; [¶] . . . or [¶] (6) disease or bodily or mental infirmity or medical or surgical treatment therefor . . . .”2
Michael Weil died on August 17, 1985, in a hotel room in San Francisco. The cause of death was described on the death certificate as acute cocaine
On March 31, 1987, plaintiffs brought an action against defendant, seeking declaratory relief as well as damages for breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of
On June 30, 1989, plaintiffs moved for summary judgment or summary adjudication of issues. In contending that Mr. Weil‘s death constituted death by accidental means as a matter of law, plaintiffs advanced alternative factual positions. They asserted that, even if the cause of death had been acute cocaine poisoning from voluntary ingestion of cocaine, as indicated by the statements in the death certificate and other reports produced by defendant, Mr. Weil‘s death occurred by accidental means within the meaning of the policy, because he did not intend to injure himself or cause his own death. Alternatively, they asserted, a probability existed that “unforeseen acts” intervened to cause Mr. Weil‘s death, in view of the following circumstances: (1) near the time of his death, Mr. Weil had been prescribed and may have been taking the drug Darvocet (to ameliorate pain caused by gum disease), (2) after death his body was identified by an individual (whom the police subsequently were unable to locate) who was unknown to Mr. Weil‘s family and coworkers, and (3) Mr. Weil‘s condominium (located in Santa Clara) had been burglarized during the weekend of his death. Plaintiffs also contended that Mr. Weil‘s death was caused not by possession of cocaine, a felony (
Defendant filed an opposition and, upon obtaining leave of the court, filed its own motion for summary judgment or summary adjudication of issues, on the theories that, as a matter of law, Mr. Weil‘s death did not result from “accidental means,” and, furthermore, that his death resulted directly or indirectly from the commission of a felony. In support of its motions, defendant presented evidence that on the afternoon of Mr. Weil‘s death, a female prostitute summoned to his hotel room observed that he appeared to be under the influence of drugs, inquired whether that was the case, but
The motions were heard and taken under submission on August 25, 1989. In a minute order entered September 19, 1989, the superior court summarily adjudicated that the subject life insurance policy had been issued to the decedent, that its supplementary rider provided an additional benefit of $100,000, and that plaintiffs were entitled to that additional benefit. The court determined as a matter of law that Mr. Weil‘s death, from an unintentional overdose of cocaine, resulted from “accidental means” within the meaning of the policy. The court also determined that Mr. Weil‘s death did not result directly or indirectly from the commission of a felony, possession of cocaine, but rather from misdemeanor use of cocaine. Nonetheless, the court denied plaintiffs’ motion for summary judgment on the ground that triable issues of fact remained as to whether defendant, in denying the supplemental accidental death benefit, breached the implied covenant of good faith and fair dealing. The court also denied defendant‘s motion for summary judgment.
Thereafter, plaintiffs dismissed with prejudice their causes of action for breach of the implied covenant of good faith and fair dealing and for violation of
Defendant appealed, contending that the superior court erred in its interpretation of the coverage clause of the supplementary rider, because the death of an insured caused by his or her voluntary ingestion of an illegal and dangerous substance, such as cocaine, is not the result of an injury occurring
II
Before this court, defendant renews its argument that the superior court erred in determining that the death of an insured, caused by his ingestion of an illegal and dangerous substance, may be considered the result of accidental means within the meaning of the policy, simply because the insured did not intend to kill himself. Defendant relies upon a series of decisions by this court and the Courts of Appeal, applying similar policy language, that have distinguished policies affording coverage for death resulting from bodily injury effected through “accidental means” from policies providing coverage for “accidental death.” In particular, defendant relies upon Hargreaves v. Metropolitan Life Ins. Co. (1980) 104 Cal.App.3d 701, in which the Court of Appeal concluded that an experienced heroin user, who injected heroin immediately prior to his death, did not die by “accidental means” as defined in the policy insuring his life. (Id. at p. 708.)3
Plaintiffs have two responses. First, they contend that (assuming Mr. Weil died solely as the result of his voluntary ingestion of cocaine) the distinction between the coverage afforded by “accidental means” policies and “accidental death” policies should be abolished. Plaintiffs point out that the distinction between the two types of policies has been the subject of long-standing criticism. They urge that retention of the distinction is inconsistent with the general principle of California insurance law providing that insurance policies generally are to be interpreted in accordance with the reasonable expectations of the ordinary insured—who reasonably would anticipate that both types of policies would provide coverage when death is caused by an “accident.” Second, even if the court retains the distinction between “accidental means” and “accidental death” policies, plaintiffs contend that a number of cases have interpreted “accidental means” policies to afford coverage when some unexpected event occurs that joins with the insured‘s
Accordingly, in determining whether summary judgment in favor of plaintiffs should be upheld, we shall consider (1) whether the distinction between “accidental means” and “accidental death” policies should be retained, and (2) whether the policy properly should be interpreted to provide coverage for an unintentional death resulting from the voluntary ingestion of an illegal and dangerous substance.
III
California long has recognized the limiting effect of language in insurance policies providing coverage in the event death occurs by “accidental means.”5 For example, in Rock v. Travelers’ Insurance Co. (1916) 172 Cal. 462, 463, the policy afforded coverage if the death of the insured was the result of “‘bodily injury effected directly and independently of all other causes, through external, violent, and accidental means.‘” The insured collapsed and died after carrying, with another man, a funeral casket down a flight of stairs. In articulating the difference between insuring against accidental death and insuring against death by accidental means, this court stated: “The policy, it will be observed, does not insure against accidental death or injuries, but against injuries effected by accidental means. A differentiation is made, therefore, between the result to the insured and the means which is the operative cause in producing this result. It is not
In determining whether the means of death or injury may be said to be accidental when, immediately preceding death, the insured was engaged in a voluntary act, some of our prior decisions have focused upon the presence or absence of a slip, mishap, or mischance—that is, something accidental that happens during the voluntary act, or another accidental event that intervenes to cause death. If such a mishap occurs, then the death may be said to transpire through accidental means. (E.g., Rock v. Travelers’ Insurance Co., supra, 172 Cal. 462, 464-468 [means were not accidental where no mishap occurred while the insured carried the casket downstairs, causing his collapse and death]; Ogilvie v. Aetna Life Insurance Co. (1922) 189 Cal. 406, 409-412 [no accidental means where a plow operated by the insured made no unusual lurch, sway, or swing, and the insured‘s fatal heart rupture was caused by strain naturally incident to plowing]; Olinsky v. Railway Mail Assn. (1920) 182 Cal. 669, 670-673 [means were not accidental where the insured voluntarily swam upstream, overexerting himself against a strong current, and there was no evidence of a slip].)
In making the foregoing determination, a number of California decisions have focused particularly upon whether the insured‘s voluntary act itself is such that its common, natural, or probable consequence would be to visit injury or death upon the insured. If not, then the death may be considered to have occurred through accidental means. (E.g., Harloe v. California State Life Ins. Co. (1928) 206 Cal. 141, 142 [no accidental means, because the effect, a fatal sunstroke, was a “natural and probable consequence” of the insured‘s act of repairing a waterline in 110-degree heat]; Postler v. Travelers Ins. Co. (1916) 173 Cal. 1, 3-6 [no accidental means where the insured‘s death in gun duel was a natural and probable consequence of drawing a firearm and chasing an armed man while attempting to recover money lost in gambling], overruled on another ground in Zuckerman v. Underwriters at Lloyd‘s, supra, 42 Cal.2d 460, 474; Cox v. Prudential Ins. Co. (1959) 172 Cal.App.2d 629, 635-636
Whether a court‘s decision has focused solely upon the absence of a slip, mishap, or mischance in the performance of, or in intervention of, the insured‘s voluntary act, or also upon whether the voluntary act is such that its common, natural, or probable consequence is fatality or serious injury, it is clear that California cases in a variety of factual settings have interpreted policies affording coverage for death effected through accidental means to preclude coverage for voluntary and intentional conduct that results in unintended death.
In several diversity jurisdiction cases, the United States Supreme Court also expressly has recognized the distinction between policies affording coverage for accidental death and coverage arising only where death is caused by accidental means. (Landress v. Phoenix Ins. Co. (1934) 291 U.S. 491, 495-498; Mutual Accident Association v. Barry (1889) 131 U.S. 100, 121-122.) In Landress v. Phoenix Ins. Co., supra, 291 U.S. 491, 495, the beneficiary, whose insured had died of sunstroke suffered while playing golf, sought recovery under two such policies,
In response to the beneficiary‘s argument that death resulting from voluntary exposure to the sun‘s rays was accidental in the common or popular sense of the term, the majority observed: “[I]t is not enough, to establish liability under these clauses, that the death or injury was accidental in the understanding of the average man—that the result of the exposure ‘was something unforeseen, unsuspected, extraordinary, an unlooked for mishap, and so an accident,’ [citations]—for here the carefully chosen words defining liability distinguish between the result and the external means which produces it. The insurance is not against an accidental result. . . . The external means is stated to be the rays of the sun, to which the insured voluntarily exposed himself.” (291 U.S. 491, 495-496.) The majority thus affirmed the decision of the lower court that the beneficiary was not entitled to recover on the policy. (Id. at p. 498.)
Cautioning in his dissent that “[t]he attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog”6 (291 U.S. 491, 499 (dis. opn. of Cardozo, J.)), Justice Cardozo took the position that the insured‘s demise from sunstroke—the unusual effect of a known cause—was a death by accidental means. “When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means. . . . So the holder of this policy might reasonably assume.” (291 U.S. at pp. 499-500, fn. omitted.)
Nonetheless, as described above, California decisions have adhered to the distinction recognized by the majority in Landress v. Phoenix Ins. Co., supra, as have the courts in numerous other jurisdictions. (3 Harnett & Lesnick, supra, § 7.03[1], pp. 7-24 to 7-29; id., (1992 supp.) p. 5.) Although, as we have noted, these cases have employed several analytical approaches in determining whether death has resulted from injury caused by accidental means, such decisions have continued to recognize and apply the distinction between death by accidental means and accidental death.
It appears that, as of 1992, 22 jurisdictions, including California, expressly recognized the distinction between “accidental means” and “accidental death” (3 Harnett & Lesnick, supra, § 7.03[1], pp. 7-24 to 7-29; id., (1992 supp.) p. 5), whereas 25 jurisdictions expressly have rejected or repudiated this distinction. (3 Harnett & Lesnick, supra, § 7.06[1], pp. 7-112 to 7-116.) In addition, the United States Court of Appeals, First Circuit, in developing federal common law (for application to Employee Retirement Income Security Act (ERISA) governed insurance policies), recently indicated it will follow the line of cases that decline to draw the foregoing distinction. (Wickman v. Northwestern Nat. Ins. Co. (1st Cir. 1990) 908 F.2d 1077, 1086.) Thus, California now appears to be in a slight minority in recognizing a distinction between the coverage provided by “accidental means” and “accidental death” policies.
Plaintiffs emphasize the courts’ obligation to interpret and apply “accidental means” coverage in a manner consistent with the reasonable expectations of insureds, urging that if this court were to repudiate the distinction between coverage for “accidental means” and “accidental death,” the result would reflect more clearly the ordinary person‘s understanding of such policy language, as suggested by Justice Cardozo. (AIU Ins. Co. v. Superior Court
Nonetheless, we must bear in mind that normally the content of an insurance policy is within the control of the parties. Unless the limitation of coverage of “accidental means” policies to a narrower class of cases than is covered by “accidental death” insurance would violate a particular statute or other express public policy, it is not our proper role to mandate that the two types of policies be interpreted as coextensive. By repudiating the distinction, the court in effect would be ignoring the fact that the policy does employ the word “means.” (3 Harnett & Lesnick, supra, § 7.03[2], pp. 7-30 to 7-31.)
Several cases from other jurisdictions have admonished that disregarding the “means” language by equating it with accidental results does not take account of the contract language (Linden Motor Freight Co., Inc. v. Traveler‘s Ins. Co. (1963) 40 N.J. 511 [also observing that the average policyholder would appreciate that an “accidental means” policy refers to accidental cause and not to every unforeseen, unexpected, unusual loss, especially since the premium charged is small (id., 193 A.2d at pp. 224-225)]; McGinley v. John Hancock Mut. Life Ins. Co. (1936) 88 N.H. 108 [184 A. 593, 595])—or requires a forced or strained construction of contract language (John Hancock Mut. Life Ins. Co. of Boston v. Plummer (1942) 181 Md. 140 [28 A.2d 856, 857]; Gidlund v. Benefit Ass‘n. of Ry. Employees (1941) 210 Minn. 176 [297 N.W. 710, 712]; see 3 Harnett & Lesnick, supra, § 7.03[2], pp. 7-31 to 7-33).
Moreover, although plaintiffs contend that the phrase “accidental means” is “inherently ambiguous and creates a reasonable doubt as to the peril insured against,” with regard to the use of this specific phrase in a number of insurance policies this court “‘has consistently, uniformly and repeatedly interpreted insurance policies providing benefits for death or injury effected through “accidental means” without once having suggested that the insuring words were ambiguous. The Courts of Appeal similarly have failed to find any ambiguity or uncertainty in the coverage provided by such policies. . . .’ [Citation.]” (Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal.App.3d 701, 705.) In Rock v. Travelers’ Insurance Co., supra,
It also is the case that in jurisdictions (such as California) that have developed the distinction between “accidental means” and “accidental results,” policies requiring only that there be proof of accidental death have been construed broadly, “such that the injury or death is likely to be covered unless the insured virtually intended his injury or death,” perhaps because the insurer could have limited its liability by employing the “accidental means” language. (3 Harnett & Lesnick, supra, § 7.05[3], p. 7-96; e.g., Collins v. Nationwide Life Ins. Co. (1980) 409 Mich. 271 [294 N.W.2d 194, 196-197].) In view of these considerations, we do not consider it appropriate at this late date to reinterpret such policy language in order to eradicate this distinction.
The argument also has been made that we should abolish the distinction in order to resolve the apparent dichotomy that has developed in California cases in viewing the test of “accidental means” as involving either (1) a scrutiny of the circumstances surrounding the insured‘s voluntary act for evidence of an accidental element or an intervening accident, or (2) a scrutiny of the insured‘s voluntary act in terms of its consequences, in deciding the accidental nature of the act based upon the probability of those consequences.
As described above, certain of this court‘s early decisions adopted and employed the concept that the means are not accidental when the insured performs a voluntary act, unless something accidental (slip, mishap, or mischance) happens during the act, or another accidental event intervenes, causing death. (E.g., Ogilvie v. Aetna Life Insurance Co., supra, 189 Cal. 406, 409-412; Olinsky v. Railway Mail Assn., supra, 182 Cal. 669, 670-673; Rock v. Travelers’ Insurance Co., supra, 172 Cal. 462, 465.) A number of other decisions by this court and the Courts of Appeal focus or base their holdings upon a standard indicating that the means are not accidental when the natural, probable, or to-be-expected result of the voluntary behavior is to bring death or injury upon the insured. (E.g., Harloe v. California State Life Ins. Co., supra, 206 Cal. 141, 142; Cox v. Prudential Ins. Code, supra, 172 Cal.App.2d 629, 635-636; Rooney v. Mutual Benefit H. & A. Assn., supra, 74 Cal.App.2d 885, 889-890; Losleben v. California State L. Ins. Co., supra, 133 Cal.App. 550, 554-557; Davilla v. Liberty Life Ins. Co., supra, 114 Cal.App. 308, 313-316.)
Essentially, the approach embodied in the latter line of cases is to consider the probability of the result in deciding whether the voluntary action of the
Nonetheless, we believe that in determining whether the means properly may be described as accidental, both considerations validly may be invoked in particular cases. In Landress v. Phoenix Ins. Co., supra, 291 U.S. 491, 496-497, the majority, although relying upon the absence of any slip, mishap, or mischance in concluding the insured‘s death by sunstroke did not constitute death by accidental means, expressly did not foreclose the possibility that in other circumstances an unforeseen, and hence accidental, result might give rise to the inference that the external means also were accidental. (Id. at pp. 496-497.) Moreover, although it has been suggested that the standard propounded in Justice Cardozo‘s dissent would find an effect to be accidental as a matter of law if it is not the natural or probable consequence of the means that produced it (Id., at pp. 500-501, fn. 2 (dis. opn. of Cardozo, J.); see Linden Motor Freight Co., Inc. v. Traveler‘s Ins. Co., supra, 40 N.J. 511), under our prior decisions the improbability of the outcome or effect is simply one consideration that must be taken into account in determining whether a death or injury resulted from “accidental means.” In our jurisdiction, as described more fully below, the court in Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal.App.3d 701, without apparent inconsistency, incorporated both approaches, basing its decision that a death by heroin overdose was not covered under an “accidental means” policy upon the voluntariness of the act of injecting the heroin, the absence of any slip, mishap, or mischance, and the circumstance that the deceased knew or should have known that death was a “probable,” “not unexpected” consequence of his voluntary act. (Id. at p. 708.) Thus, even when the evidence does not disclose an intervening accident or an accidental element, it is appropriate, in determining whether death occurred by accidental means, to consider whether an effect is not the natural, probable, or expected consequence of the means that produced it. (See Losleben v. California State L. Ins. Co., supra, 133 Cal.App. 550, 554-557; Davilla v. Liberty Life Ins. Co., supra, 114 Cal.App. 308, 313-316.)
IV
We now turn to the question whether a death arising from a voluntary, self-inflicted, but unintentional overdose of an illegal substance
In conformity with prior California decisions, the court in Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal.App.3d 701, applied the distinction between “accidental means” and “accidental death,” synthesizing the two approaches that had been developed in those cases for the purpose of ascertaining whether the means by which death had occurred were accidental. In concluding that the death of an experienced heroin user by overdose did not occur by “accidental means” within the meaning of a life insurance policy, the court based its decision upon (1) the voluntariness of the act (the heroin user “obviously intentionally injected himself with heroin, a death dealing substance“), (2) the absence of any slip, mishap, or mischance (“there is absolutely no evidence justifying an inference that in utilizing the means (hypodermic needle) there were other acts (or act) containing unforeseen or unexpected character unintentionally done by him“), and (3) the circumstance that death reasonably could be anticipated (“he knew or should have known that illicit use of heroin is injurious to the body and as a practical matter when illicitly used in whatever amount a probable result not unexpected is death“). (Id. at p. 708.)
Assuming, for the moment, that we accept the formulation of the court in Hargreaves that the means may not be considered accidental if the insured knew or should have known that death or injury therefrom was probable and not unexpected, it is apparent under the present line of California decisions (including Hargreaves) that recognize the distinction between coverage for death by “accidental means” and coverage for “accidental death,” that the death of an insured caused by his or her voluntary consumption of an illegal and dangerous substance, without mishap, would not be considered the result solely of external, violent, and accidental means. Accordingly, defendant is correct in asserting that the superior court erred in determining that, simply because death itself was unintended, an unintentional overdose may comprise “accidental means” within the meaning of such a policy.
We are aware of the seemingly contrary decision in Pilcher v. New York Life Ins. Co. (1972) 25 Cal.App.3d 717, relied upon by the superior court in the present case. Noting that, in those jurisdictions that have repudiated the distinction between “accidental means” and “accidental death,” the insurer frequently has been held liable for an unintentional drug overdose, the court in Pilcher held that death by a self-administered overdose of heroin constituted “accidental death,” and therefore held the insurer liable under the accidental death policy at issue in that case. (Id. at pp. 725-727.)
The decisions that have interpreted policies insuring against death caused by “accidental means,” in the situation in which an insured voluntarily, knowingly, and intentionally self-administers a given drug (whether prescribed or illegal), resulting in an unintentional fatal overdose, generally have applied one or the other of two distinct analyses in determining whether “accidental means” are present. The court either has inquired whether the insured intended or expected to ingest the quantity of the substance actually taken, or has inquired whether the insured was ignorant of the lethal nature of the amount taken (even if the insured intended to consume the quantity actually taken).
Occasionally, a decision has discussed both of these considerations. For example, in Metropolitan Life Ins. Co. v. Main (5th Cir. 1967) 383 F.2d 952, the insured, accustomed to taking one Medomin (a prescribed barbiturate sleeping pill) each night, celebrated a promotion by having four drinks of whiskey, and, having become confused, took four to eight Medomin, with a lethal result. Applying Connecticut law, the court held that the insured‘s death occurred by “accidental means,” because he did not intend to take that dosage of Medomin and did not intend to ingest an amount of both substances sufficient to create the synergistic effect that brought about his death. (Id. at p. 960.)
More typically, however, courts, in arriving at a determination whether the means were accidental, have based their decisions upon only one of the foregoing two considerations. (See Feldmann v. Connecticut Mut. Life Ins. Co. etc. (8th Cir. 1944) 142 F.2d 628, 633 [applying prior New York law, the court held that death occurred by accidental means where the insured, accustomed to taking one capsule, had taken fifteen capsules of Nembutal, allegedly by mistake]; compare with Hawkins v. New York Life Ins. Co. of New York, N.Y. (1954) 176 Kan. 24 [269 P.2d 389, 398] [the insured died by accidental means where she was unaware that the quantity of barbiturates
Nonetheless, a number of decisions, although recognizing that the insurer would be liable if the insured by accident took a greater quantity of a particular drug than he or she intended, have absolved the insurer in the situation in which the insured knowingly and intentionally took a certain quantity but simply was ignorant of the circumstance that death probably would ensue from ingesting that amount. Thus, in Carnes v. Iowa Traveling Men‘s Ass‘n. (1898) 106 Iowa 281 [76 N.W. 683], the court observed that the insured‘s death by morphine overdose could be accounted for in two ways: either he had taken more morphine than he intended, or he had intended to take the amount he did, but misjudged its effect. Because the plaintiff was unable to rule out the second possibility, she did not meet her burden of establishing coverage under the policy. (Id., 76 N.W. at pp. 684-685; see also Murphy v. Western & Southern Life Ins. Co. (Mo.App. 1953) 262 S.W.2d 340, 342-343 [where there was no evidence that the insured took an excessive amount of paraldehyde because his foot slipped or because he was drunk and believed the liquid was whiskey, his ignorance of the effect of taking an amount in excess of that prescribed did not supply the element of unexpectedness that would render accidental the means of death]; Aubuchon v. Metropolitan Life Ins. Co. (8th Cir. 1944) 142 F.2d 20, 26 [under Missouri law, if the insured intended to consume the number of Veronal (barbiturates) he ingested, death did not occur by accidental means, even though the insured did not anticipate death would result from taking that amount].)
In general, the more recent cases in those jurisdictions that continue to recognize the distinction between “accidental means” and “accidental results,” have adopted the view that, where it appears an insured has consumed
In our own jurisdiction, the decision in Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal.App.3d 701, essentially adopts this approach. The conclusion of the appellate court that the death of an experienced heroin user by heroin injection did not constitute death by “accidental means” rested in part upon the determination that the drug apparently could not have been mistaken for a harmless substance, and upon the plaintiff‘s not having contested the trial court‘s finding that the heroin injection was “done in the usual manner without any mishap.” (Id. at p. 708.)
The court in Hargreaves additionally concluded, because of the high probability that serious consequences would arise from the conduct of the insured, that the means of death were not accidental. The court stated that the heroin user “knew or should have known that illicit use of heroin is injurious to the body and as a practical matter when illicitly used in whatever amount a probable result not unexpected is death . . . .” (Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal.App.3d 701, 708.) We do not agree with, or adhere to, the pronouncement of the court in Hargreaves that death or serious injury is a probable result of ingestion of controlled substances, and believe it more accurate (taking into account the language employed in earlier California decisions) to describe such a result as common, natural, or substantially likely. The standard invoked—whether the insured knew or should have known that death or injury was common, natural, or substantially likely—precludes coverage even if, on the particular occasion, the insured may not have realized he or she was injecting a lethal overdose. This standard is adopted from, and is consistent with, the principles repeatedly employed by California appellate decisions in analyzing diverse factual contexts involving insurance coverage claims in nondrug cases. (See, e.g., Cox v. Prudential Ins. Co., supra, 172 Cal.App.2d 629, 635-636; Rooney v. Mutual Benefit H. & A. Assn., supra, 74 Cal.App.2d 885, 890; Davilla v. Liberty Life Ins. Co., supra, 114 Cal.App. 308, 316; Horton v. Travelers Ins. Co., supra, 45 Cal.App. 462, 473-474 [emphasizing the distinction between a voluntary act and a voluntary exposure to a known danger].)
In other jurisdictions, a similar analysis has developed. In Lloyd v. First Farwest Life Ins. Co. (1989) 54 Wn.App. 299 [773 P.2d 426, 427], the court held that a policy providing coverage for bodily injury caused by accident
Similarly, in Jackson v. National Life & Accident Insurance Co. (1973) 130 Ga. App. 208 [202 S.E.2d 711, 712], the court held that the insured, who had died by means of an injection of a “massive dose” of heroin and whose body contained needlemarks indicating prior heroin use, did not die by “accidental means” within the coverage of the policy. (202 S.E.2d at pp. 712-713.) The court noted that, in view of the circumstances involved in heroin use, which include the use of unsterilized needles and utensils, often in unsanitary locales, as well as the inability of the user to determine the strength or purity of a given dosage, “death is a common experience and the user may reasonably expect it.” (202 S.E.2d at p. 712.) The court concluded that a lethal injection by such a user is not an unforeseen, unexpected, unusual, or unintentional act, and therefore the injury did not result from “accidental means.” (Ibid.)
In Gordon v. Metropolitan Life Insurance Company (1970) 256 Md. 320 [260 A.2d 338, 41 A.L.R.3d 648], the court concluded the insured did not die by “accidental means,” based upon the circumstances that (1) the insured had a history of narcotics addiction and died by self-administering heroin as well as an excessive dose of Doriden, a sedative, (2) there was no claim a mishap had occurred in the act of injection, and (3) evidence was presented that narcotics users are aware of the substantial risk involved in self-administering heroin. (260 A.2d at pp. 338-341.) Noting the probability that the combination of heroin and Doriden caused the fatality, the court observed that the possibility the decedent may have been unaware of the risk in taking that combination of drugs was irrelevant, because heroin by itself carried a “well known and substantial risk.” (260 A.2d at p. 339.) The court also observed that, although in some cases there may not be any way to distinguish “accidental means” from “accidental results,” in a case where an
Although a number of decisions have held otherwise, there appears to be a developing tendency, which we now endorse, expressed in the Hargreaves case (Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal.App.3d 701) from our own jurisdiction and in decisions from other jurisdictions, for courts to conclude that a fatal reaction to the voluntary, deliberate, and “nonmedical” taking of an illegal substance, without mishap, should not be considered death by “accidental means,” even when the insured may not have had personal knowledge that death was common, natural, or substantially likely as the result of ingesting the amount actually taken. It is readily
V
Having concluded there was double indemnity coverage in the present case only if death was caused by an accident unrelated to the insured‘s voluntary ingestion of cocaine, we now consider whether plaintiffs are entitled to summary judgment based upon that theory or instead there remains a triable issue of material fact upon that issue.
The burden is upon the plaintiffs to establish that the occurrence forming the basis of their claim is within the basic scope of insurance coverage. (Royal Globe Ins. Co. v. Whittaker (1986) 181 Cal.App.3d 532, 537 [226 Cal.Rptr. 435]; see Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 406 [257 Cal.Rptr. 292, 770 P.2d 704]; Clemmer v. Hartford Ins. (1978) 22 Cal.3d 865, 880 [151 Cal.Rptr. 285, 587 P.2d 1098].) Therefore, plaintiffs bore the burden of establishing that the death of the insured was caused by an accident unrelated to his voluntary ingestion of cocaine. (Ells v. Order of United etc. Travelers (1942) 20 Cal.2d 290, 304 [125 P.2d 457]; Rock v. Travelers’ Insurance Co., supra, 172 Cal. 462, 464; see Zuckerman v. Underwriters at Lloyd‘s, supra, 42 Cal.2d 460, 472-473.)
Plaintiffs attempted to establish that the drug Darvocet caused or contributed to Mr. Weil‘s death, offering evidence that, several weeks prior to his death, that particular drug had been prescribed for Mr. Weil, and the day before his death he had informed his mother he was taking the drug. This evidence is not uncontroverted, however. The chemical analysis of bodily tissues furnished by defendant demonstrates that no trace of Darvocet was detected in Mr. Weil‘s system, even though, as metabolized in the body, its half-life is of sufficient duration to have rendered its presence detectable at the time the analysis was performed. The only substance that appeared in his system in a lethal quantity was cocaine.
Plaintiffs’ evidence is controverted by the report of the coroner‘s investigators’ conversation with the prostitute who had been summoned to Mr. Weil‘s hotel room approximately two hours prior to his death.9 She told the investigators that, upon meeting Mr. Weil at the door, she noticed he appeared intoxicated, prompting her query whether he was under the influence of drugs, to which he responded he “would be all right.” She reported that some time later, Mr. Weil left the bedroom and entered the bathroom, where she observed him place a white powder in his mouth from a blue dish in the sink. She also reported that Mr. Weil soon began to experience shortness of breath, causing her to be fearful and to leave. She did not state that anyone else was in the room prior to her departure.
This evidence, considered with proof that a substantial amount of cocaine was present in Mr. Weil‘s system, that a sample (presumably taken from the blue dish) tested positive for cocaine, and that there was no external or internal trauma to the body (except those consistent with an overdose of cocaine), precludes any conclusive finding that Mr. Weil‘s death resulted solely from external means or from any agency other than his own voluntary and intentional ingestion of a substantial quantity of cocaine. Accordingly, plaintiffs are not entitled to summary judgment on the theory that death occurred by “accidental means.”
Decisions of this court and the Courts of Appeal have not extended coverage, under policies covering death by “accidental means,” to those situations in which the nature of the insured‘s voluntary act is such that he or she reasonably could anticipate that death or great bodily harm is a common, natural, or substantially likely consequence, and a number of decisions in various jurisdictions expressly have disallowed coverage, under policies similar to the present one, for the deliberate, intentional ingestion of illegal substances that an insured knows, or should know, involve a substantial likelihood of death. Accordingly, we conclude the superior court erred in determining that the insured‘s death, arising from a voluntary and intentional act that resulted in an unintentional overdose of cocaine, was caused by “accidental means” within the meaning of the insurance policy. For the foregoing reasons, we reverse the judgment of the Court of Appeal and direct that court to remand this action to the trial court.
Lucas, C. J., Panelli, J., Arabian, J., and Baxter, J., concurred.
MOSK, J.—I dissent.
In my view we should grasp this opportunity to abrogate the archaic and arcane distinction between “accidental death” and “death by accidental means,” and thereby join the modern trend in the majority of our sister states which have either abolished the distinction or refused to recognize it in the first place. I further believe that we should adopt an analysis recently devised by the federal courts for determining when a death is “accidental” for insurance law purposes, and that under that test the death of the insured herein was accidental and his beneficiaries are entitled to recover under his policy‘s double indemnity clause.
Although there are problems with the record in this case, certain basic facts appear to be undisputed. In 1975 defendant insurance company issued a life insurance policy to Ingold-Weil, Inc., insuring the life of its employee, Michael P. Weil, then 22 years of age. The policy was a five-year term renewable to age sixty-five. Its face amount was $100,000, and for an additional premium it provided an accidental death benefit in the same amount—the traditional double indemnity clause. Ingold-Weil, Inc., was the named owner of the policy and, initially, its sole beneficiary. At some point thereafter, perhaps when the insured left the employ of Ingold-Weil, Inc.,1 the insured‘s mother and sister were substituted as beneficiaries.
The premiums on the policy were apparently paid without incident for 10 years. In 1985 the insured died in San Francisco at the age of 32. The death
Upon proof of death the insurance company paid the beneficiaries the face amount of the policy, but refused to pay the accidental death benefit. The company denied this coverage on two grounds: first, that the insured‘s death was not an accidental death within the policy meaning of that term; and second, that the death fell within a policy exclusion for deaths resulting from the commission of a felony.
In the beneficiaries’ suit for declaratory relief and other remedies the trial court found against the insurance company on both of the foregoing defenses. The court therefore granted the beneficiaries’ motion for summary judgment in the amount of the accidental death benefit, and the Court of Appeal affirmed.
I
In this court the insurance company reiterates the two grounds on which it denied coverage. First, the company contends the policy should be interpreted to provide coverage for accidental death only if the death is also caused by “accidental means.” To explain the latter phrase the company urges that when as here death follows from an act of the insured, the policy should be interpreted to mean the death is caused by “accidental means” only if “an unusual, unforeseen and unintended mishap occurs in the performance in the act itself“; if, instead, no such mishap occurs in the “performance” of the act and it is only the “result” of the act—i.e., the insured‘s death—that is “unusual, unforeseen and unintended,” there may be “accidental death” but there is no “death by accidental means” and hence no coverage under the accidental death rider.
As will appear, to a layperson such a reading of the insurance policy in this case would seem fanciful, if not downright bizarre. Yet California case law is said to require it. In order to understand how we came to this clash between common sense and common law, it will be helpful to assume for the moment that this is a case of first impression, and return to first principles.
“While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply.” (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 [10 Cal.Rptr.2d 538, 833 P.2d 545].) Indeed, “All contracts, whether public or private, are to be interpreted by the same rules” (
The rules differ according to whether the wording of the contract is clear or ambiguous. The majority take the position that the policy language before us is not ambiguous but clear. Let us assume arguendo that it is. The first rule of interpretation declares that when the contractual language is “clear and explicit” and does not lead to an absurdity, “The language of [the] contract is to govern its interpretation” (
In the insurance context only one of the parties to the contract—the insurance company or its agent—is likely to know that a policy term has a special or technical meaning in the insurance business, and to intend to so use it. The other party—the purchaser of the policy or the insured—is usually a layperson who does not share that specialized knowledge or intent. It follows that the general rule of the statute, not its exceptions, governs the interpretation of insurance policies: the words of such policies “are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning” (
This court has repeatedly so held. In Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807 [180 Cal.Rptr. 628, 640 P.2d 764], we said it is one of the “established principles” of insurance law that “Words used in an insurance policy are to be interpreted according to the plain meaning which a layman would ordinarily attach to them.” In Crane v. State Farm Fire & Cas. Co. (1971) 5 Cal.3d 112, 115 [95 Cal.Rptr. 513, 485 P.2d 1129, 48
The policy in question is in the record, an exhibit to the insurance company‘s answer to the complaint. The initial printed page of the policy is silent on the present matter, promising only to pay the face amount stated in the page entitled “Policy Specifications.” That page, akin to a certificate of coverage, is a typed list of the particular policy benefits and their corresponding premiums. The benefits are: a basic coverage in the amount of $100,000, a waiver of premium in case of disability, and an “ADDITIONAL ACCIDENTAL DEATH” coverage in the amount of $100,000. The words of the policy specifications page are all in block-capital letters. There is no mention of “death by accidental means.”
Following several pages reciting the standard provisions of such a policy (e.g., procedures for renewal, conversion and settlement options, and general administrative clauses), two printed riders are attached. The first is the waiver-of-premium benefit.
The second rider is entitled, again in block-capital letters and this time in boldface type, ”ADDITIONAL ACCIDENTAL DEATH BENEFIT.” It begins with a description of that benefit in the form of a single sentence that runs for 130 words, printed in standard-face, lowercase type. The sentence first reiterates the company‘s promise to pay the amount of the “additional accidental death benefit” stated in the policy specifications. Eighty-three words into the sentence appears the language relied on by the insurance company in the case at bar, reciting that the company will pay the accidental death benefit on proof that death was caused by injuries “effected solely through external, violent and accidental means, as evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy).”4
Next, the rider sets forth an exclusionary clause specifying seven grounds on which the company will not pay the accidental death benefit: i.e., if the
The rider concludes by using the phrase “accidental death benefit” twice more. In the termination-of-benefit clause it declares that “The additional accidental death benefit shall cease to be in force” upon two contingencies, and in the premiums clause it recites that “Additional accidental death benefit premiums are payable” for the life of the policy. (Italics added.)
Equally significant is what the policy does not provide: nowhere in the policy application form or in the policy itself does the insurance company give any definition or explanation of the words it now relies on, viz., “external, violent and accidental means.” Accordingly, applying the first rule of interpretation of insurance policies, we must ask what is the “ordinary and popular sense” rather than the “strict legal meaning” of the words of the policy. (
When the policy in the case at bar is so viewed, the conclusion is inescapable: a layperson like this insured would read the policy to provide what it promises to provide—i.e., double indemnity for any “accidental death” in the ordinary and popular sense of those words, unless the death results from a cause expressly listed in the policy‘s exclusion clause.
The insurance company contends, however, that the insured would realize that the accidental death coverage is further, although impliedly, limited by the “accidental means” language in the policy, and would understand that language in the way the company now defines it, i.e., that the coverage does not include any accidental death that is not also caused by “accidental means.” The contention fails on several grounds.
To begin with, on the facts of this case it is very possible that the insured never even saw the actual policy—and therefore never read the “accidental means” language—before he died, or at least until he left the employ of
In the case at bar the insured signed the application form. In that form‘s section on coverage the figure $100,000 is inserted in the blank space for the face amount, and boxes for “WP” (i.e., “waiver of premium“) and “ADB” (i.e., “accidental death benefit“) are checked. There is no mention of “death by accidental means.”
Next, even if the policy was eventually delivered to the insured in this case, it is very probable that he did not see it at the time of purchase. This, too, is common in the insurance business. “Insurance policies, while in the nature of written contracts, are not prepared after negotiations between the parties, to embrace the terms at which the parties have arrived in their negotiations. They are prepared beforehand by the insurer, and the company solicitors then sell the insurance idea to the applicant. Normally, the details and provisions of the policy are not discussed, except that the particular form of policy is best suited to give the applicant the protection he seeks. If he reads the policy he is generally not in a position to understand its details, terms, and meaning except that, in the event against which he seeks insurance, the company will pay the stipulated sums. He seldom sees the policy until it has been issued and is delivered to him. He signs an application blank in which the policy sought is described either by form number or by a general designation, pays his premium, and in due course thereafter receives, either from the agent or through the mails, his policy. Many of its terms and all of its defenses and super-refinements he has never heard of and would not understand them if he read them.” (Browning v. Equitable Life Assur. Soc. (1937) 94 Utah 532 [72 P.2d 1060, 1073] (conc. & dis. opn. of Larson, J.), italics added.)
Here the application form was signed by the insured and the insurance company‘s agent on February 20, 1975, but the policy did not issue until April 14, 1975. As noted above, the application form is silent as to the
Finally, even if the policy had been available for inspection by the insured at the time of purchase, it is highly improbable that, as a layperson, he would have read the “accidental means” language in the way that the insurance company now urges. There are two reasons why this is so.
First, it is unlikely the insured would have realized that the block-capital, boldface promise of an ”ADDITIONAL ACCIDENTAL DEATH BENEFIT” was meant to be sharply limited by the brief reference to “accidental means” buried in the small print of a 130-word sentence in the accidental death rider. It is the insurer that chooses which words of its policy to emphasize, which to deemphasize, and which typography, sentence structure, or paragraphing to use for the purpose. The insurer should therefore be held to those choices and to the reasonable inferences that a layperson would draw from them. To hold a layperson to the insurer‘s contrary reading of a policy thus drafted would violate a fundamental rule of contractual interpretation: “where the policy expressly provides certain indemnities in large type and then unobtrusively, in fine print, attempts to limit the effect thereof, the court will protect the insured‘s rights.” (1B Appleman, supra (1981) § 451, p. 250, fn. omitted.)6
Second, even if the insured herein noticed the “accidental means” language in the small print, he must be deemed to have read it “as a layman would read it and not as it might be analyzed by an attorney or an insurance expert.” (Crane v. State Farm Fire & Cas. Co., supra, 5 Cal.3d 112, 115.) It is not easy for lawyers and judges to read a legal document as a layperson
Every court in our sister jurisdictions that has addressed the same question has answered it in the same way. Many of these courts expressly adopt the reasoning of Justice Cardozo in his seminal dissenting opinion in Landress v. Phoenix Ins. Co. (1934) 291 U.S. 491, 499, 501 [78 L.Ed. 934, 938-939, 54 S.Ct. 461, 90 A.L.R. 1382]: “The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog. ‘Probably it is true to say that in the strictest sense and dealing with the region of physical nature there is no such thing as an accident.’ [Citations.] On the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of accident insurance. It is his reading of the policy that is to be accepted as our guide, with the help of the established rule that ambiguities and uncertainties are to be resolved against the company. [Citations.] The proposed distinction will not survive the application of that test.
“When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident and hence by accidental means. . . . [¶] . . . There was an accident throughout, or there was no accident at all.”
A sampling follows of the numerous decisions holding that a layperson would not read this policy as making a distinction between “accidental death” (or death as “accidental result“) and “death by accidental means“:
In Mansbacher v. Prudential Ins. Co. of America (1937) 273 N.Y. 140 [7 N.E.2d 18, 19, 111 A.L.R. 61], the policy—as in the case at bar—announced the accidental death benefit “in large letters,” and in ordinary type defined such death in the same words as the policy before us, i.e., “effected solely through external, violent and accidental means.” The New York high court reasoned, “Any one reading this policy would take it to mean—would understand it as meaning—that the insurance company would pay $2,000 for death caused solely by accident through external means; if death is caused by any external accident, the company pays. The only exception, pertinent here, is suicide. The insurance company now emphasizes the words ‘accidental means,’ and would have an exception drawn between ‘accidental
“A distinction between ‘accidental means’ and ‘accidental results’ is certainly not understood by the average man and he is the one for whom the policy is written.” (Burr v. Commercial Travelers Mut. Acc. Ass‘n (1946) 295 N.Y. 294 [67 N.E.2d 248, 252, 66 A.L.R. 462]; accord, Catania v. State Farm Life Ins. Co. (1979) 95 Nev. 532 [598 P.2d 631, 633]; Botts v. Hartford Acc. & Indem. Co. (1978) 284 Ore. 95 [585 P.2d 657, 660].)
“The fine distinction between ‘accidental death’ and ‘death from accidental means’ would certainly never occur to an ordinary policy holder.” (Equitable Life Assur. Soc. v. Hemenover (1937) 100 Colo. 231 [67 P.2d 80, 81, 110 A.L.R.1270].)
“There is no evidence but that the deceased was an average man, and we doubt, if he actually considered the subject at all, whether in purchasing the policy he thought that the term ‘accidental means’ meant anything other than the ordinary meaning given thereto by any other average person. Certainly, a layman would have no comprehension that injury or death as a result of ‘accidental means’ would be given a strict and technical interpretation.” (Scott v. New Empire Insurance Company (1965) 75 N.M. 81 [400 P.2d 953, 955].)
“The provisions of insurance policies should be considered as used in their ordinary and popular sense. If this be done, the distinction between accidental result and accidental means cannot be said to exist. It is a distinction without a difference in so far as the average lay person is concerned.” (Murphy v. Travelers Ins. Co. (1942) 141 Neb. 41 [2 N.W.2d 576, 580].)
“Texas courts have waded through Justice Cardozo‘s Serbonian bog, and we are now convinced that the terms ‘accidental death’ and ‘death by accidental means,’ as those terms are used in insurance policies, must be regarded as legally synonymous unless there is a definition in the insurance contract itself which requires a different construction. These terms in an insurance contract should be given their ordinary and popular meaning according to the understanding of the average man; the court‘s guide should not be the technical meaning of the words used, but rather the intention of the parties as inferred from the contract as a whole. A fine distinction between means and results would never occur to an average policyholder, and the insurer should not be able to escape liability by resort to such a technical definition.” (Republic Nat. Life Ins. Co. v. Heyward (Tex. 1976) 536 S.W.2d 549, 557.)
“Before this court finds itself within that Serbonian Bog of semantics and polemical maze we are going to clarify our position and determine along with the growing majority rule that an accident is an accident whether it be in the ‘means’ or the ‘result.’ In so determining we do nothing more than follow the cardinal rule of contract construction—the intention of the parties.
“One paying the premium for a policy which insures against ‘death by accidental means’ intends to provide benefits to his family or named beneficiary in the event he should suffer death caused by accident as opposed to death caused by other means, such as suicide, murder, disease or natural death.” (Knight v. Metropolitan Life Insurance Company (1968) 103 Ariz. 100 [437 P.2d 416, 420], fn. omitted, italics in original.)
Indeed, “If an insured, at the time he applies for accident insurance, was made to understand that his right to recover would hinge upon such fine distinctions as the difference between ‘an accidental death’ and a death by
Perhaps the last word should go to a predecessor of Lewis Carroll: “‘There is really no justice in this supposed distinction, which the members of the Association of Life Insurance Counsel are striving to impress upon the courts, between “accidental injury” and “injury by accidental means.” . . . I believe that a vast majority of prospective policyholders, and of all men of ordinary or above ordinary intelligence, outside of the Association of Life Insurance Counsel, would be led to join in the wonder of John Byrom:
“““Strange all this difference should be Twixt Tweedledum and Tweedledee.““” (Schonberg v. New York Life Insurance Company (La. 1958) 104 So.2d 171, 176.)9
In the case at bar the insurance company does not contend that all the foregoing courts are wrong, or that any court has actually held that a layperson would see and understand the claimed distinction. It follows that if, as the majority assert, the language is not ambiguous, the first rule of interpretation of insurance contracts compels the conclusion that the words “accidental death” and “death by accidental means” in this policy are to be read as functionally equivalent, and hence that the beneficiaries herein need prove only that the insured died an accidental death in order to recover under the accidental death rider.
Next, let us assume arguendo that, as the beneficiaries contend, the policy language is ambiguous.10 In that event we reach the second and third rules for interpreting contracts, and hence insurance policies. These rules are to be applied when the wording of the contract is ambiguous or uncertain.
In the case at bar that inquiry leads to the same conclusion as reached above. This is so because the fundamental requirement that words in an insurance policy must be given their “ordinary and popular sense” (
Finally, the third of the rules of interpretation of insurance policies declares that when the previous rule does not remove the ambiguity, the ambiguous language must be “interpreted most strongly against the party who caused the uncertainty to exist” (
This is not surprising: as we recently reiterated, “In the insurance context, we generally resolve ambiguities in favor of coverage. [Citations.] Similarly, we generally interpret the coverage clauses of insurance policies broadly, protecting the objectively reasonable expectations of the insured. [Citations.] These rules stem from the fact that the insurer typically drafts policy
In the case at bar the insurance company‘s narrow reading of the accidental death rider to deny coverage when an accidental death is not also caused by “accidental means” violates the third rule of interpretation. Under this rule, any ambiguity in the disputed policy language must be resolved in favor of coverage.
In sum, whether the words here in issue are clear or whether they are ambiguous, settled rules of contractual interpretation compel the conclusion that the beneficiaries of this policy need prove only that the insured died an accidental death in order to recover under the accidental death rider. This view of the matter, as a leading scholar observes, “is clearly the preferred construction of policy language.” (10 Couch on Insurance (2d ed. 1982) § 41.29, p. 45 [hereafter 10 Couch].)
II
Nevertheless, the insurance company contends we should depart in this case from the foregoing principles of contract and insurance law because stare decisis allegedly compels it. The contention is unpersuasive.
The majority phrase the question before us as whether we should “eradicate” or “abolish” the distinction between “accidental death” and “death by accidental means.” (Maj. opn., ante, p. 140.) Realistically speaking, however, the question is whether we should resurrect the distinction, at least in this court. The history of the distinction in this court is brief and remote, covering only a dozen of the 144 years of our jurisprudence. The first California case to recognize the distinction was decided in 1916. (Rock v. Travelers’ Insurance Co. (1916) 172 Cal. 462 [156 P. 1029] [hereafter Rock].) During the next 12 years this court reiterated the distinction in 5 cases, but they largely cited each other and offered only cursory and inconsistent reasoning in support of the distinction. The last of these cases was a one-page opinion issued sixty-six years ago. (Harloe v. California State Life Ins. Co. (1928) 206 Cal. 141 [273 P. 560].)11
Yet while this court has not addressed the issue for six and a half decades, during the same period the courts of our sister states have been busy ruling on the same distinction. Their experience is instructive on two grounds.
Most significant, in a number of jurisdictions on the pro-distinction list the courts have preserved the distinction in name but abandoned it in fact, by the device of very narrowly defining the “means” or cause of death. These courts hold that the “means” was not the insured‘s voluntary course of conduct, but merely the particular event that brought the conduct to a fatal conclusion and that the insured obviously did not “intend.” For example, in several cases the insured died after eating tainted food. Although in each case the event was plainly an “accidental death” the court managed to make it also a “death by accidental means,” thus paying lip service to the distinction. To achieve this end the court held that the “means” or cause of death was not the insured‘s consumption of the food, but the fact that the food turned out to be tainted; the court then reasoned that although the insured voluntarily ate the food he did not “intend” to eat tainted food, and hence the “means” of his death—judicially defined as eating tainted food—was “accidental.” (United States Casualty Co. v. Griffis (1916) 186 Ind. 126 [114 N.E. 83, 84-85]; Johnson v. Fidelity & Casualty Co. (1915) 184 Mich. 406 [151 N.W. 593, 596]; Newsoms v. Commercial Casualty Ins. Co. (1927) 147 Va. 471 [137 S.E. 456, 457]; see also Christ v. Pacific Mut. Life Ins. Co. (1924) 312 Ill. 525 [144 N.E. 161, 164, 35 A.L.R. 730] [insured drank tainted water].) Such reasoning—and it is common—obviously eviscerates the distinction.
Whatever the actual tally should be, moreover, the number of jurisdictions rejecting the “accidental death/accidental means” distinction is less important than their trend—and the trend is both clear and dramatic.
In 1916 this court was doubtless correct in saying that “the great weight of authority” supported the distinction. (Rock, supra, 172 Cal. at p. 465.) Although courts increasingly rejected the distinction in the 1930‘s, a compilation in 1947 still showed 25 jurisdictions in favor of it and 14 against. (Annot. (1947) 166 A.L.R. 469, 471-472 & fn. 7, 473-474 & fn. 20.) But the current was flowing strongly away from the distinction, and in the ensuing years that current became a flood: many courts that had previously supported the distinction abandoned it,12 while most of the courts addressing the question for the first time declined to adopt the distinction.13 By 1984 it was clear that “Most of the states which have considered the matter in the last fifty years have abolished the distinction between ‘accidental means’ and ‘accidental results.‘” (Ingram & Ostfeld, The Distinction Between Accidental Means and Accidental Results in Accidental Death Insurance (1984) 12 Fla.St.U.L.Rev. 1, 10, fn. omitted.)
The upshot is that today it is literally black letter law that “The older judicial view tended to support a distinction between policy language purporting to cover death or injury by accidental means and language indicating coverage for an accidental result. The modern trend in the majority of jurisdictions is to find no significance in the ‘means’ as long as the result is accidental.” (3 Harnett & Lesnick, The Law of Life and Health Insurance (1993) § 7.02, p. 7-11, italics added [hereafter 3 Harnett & Lesnick].) The question is whether this court will pretend that nothing has changed in the past 66 years, or instead will take this opportunity to bring our law into harmony with the “modern trend in the majority of jurisdictions.” (Ibid.)
The remarkable reversal in the weight of authority is well illustrated by considering what has become of the pro-distinction precedents that this court relied on in Rock, supra, 172 Cal. 462. Two of those precedents (id. at p. 466) were New York Appellate Division cases decided in 1903 and 1904. In 1946, however, New York‘s highest court declared, “In this State there is no longer any distinction made between accidental death and death by accidental means, nor between accidental means and accidental results.” (Burr v. Commercial Travelers Mut. Acc. Ass‘n, supra, 67 N.E.2d 248, 252, citing Mansbacher v. Prudential Ins. Co. of America, supra, 7 N.E.2d 18; accord, Morgan v. Indemnity Ins. Co. of North America (1951) 302 N.Y. 435 [99 N.E.2d 228, 229] [“Whether death results from accidental causes or accidental means no longer makes any distinguishing difference.“].)
In Rock, supra, 172 Cal. at page 466, this court also relied on a 1912 Texas intermediate appellate case. In 1976, however, the Texas Supreme Court declared that “a real distinction between the terms ‘accidental death’ or ‘accidental injury’ and ‘death by accidental means’ is no longer recognized in Texas.” (Republic Nat. Life Ins. Co. v. Heyward, supra, 536 S.W.2d 549, 554.)
Again in Rock, supra, 172 Cal. at pages 465-466, this court relied on three Iowa cases decided between 1899 and 1911. That state‘s highest court, however, subsequently abandoned the distinction: “In many jurisdictions the courts distinguish between accidental results and accidental means, and requires [sic] that both be proved in order to meet the provisions of such a policy. Such was the earlier rule in Iowa. In the case of Lickleider v. Iowa State Traveling Men‘s Ass‘n [(1918)] . . . 166 N.W. 363, 367 . . . , the early rule was modified, and it was there held that an accidental result and the accidental means by which it is caused are somewhat identical, and that proof of the former may be considered as proof of the latter.” (Dawson v. Bankers’ Life Co. (1933) 216 Iowa 586 [247 N.W. 279, 282].)
This court also relied in Rock, supra, 172 Cal. at page 466, on a 1908 Indiana appellate case. By 1971, however, the same court had abandoned the “accidental death/accidental means” distinction, at least in the frequent context of deaths in fights in which the insured was the aggressor. (Freeman v. Commonwealth Life Ins. Co. of Louisville, supra, 271 N.E.2d 177, 180, 181 [“what constitutes an ‘accident,’ or what ‘means’ are ‘accidental,’ is to be determined by what people usually and ordinarily consider to be ‘accidental.’ . . . [¶] . . . To the non-lawyer an event is an accident no matter how
Finally, in the only jurisdiction (Georgia) cited in
The remaining cases cited in Rock, supra, 172 Cal. at pages 465-466, are even less persuasive: two are early Scottish and English cases, and the remaining four are federal district and circuit court diversity cases declaring a “federal common law” that has not been binding on any court since Erie R. Co. v. Tompkins (1938) 304 U.S. 64, 78 [82 L.Ed. 1188, 1194, 58 S.Ct. 817, 114 A.L.R. 1487].15
It follows that neither of the pillars on which Rock rested the “accidental death/accidental means” distinction will support that dilapidated structure today. When we turn to its progeny, moreover, we find them equally inadequate to the task.
Under the test adopted in Rock, supra, 172 Cal. at page 465, the un- foreseeability of the fatal result of the insured‘s conduct was essentially irrelevant; for the loss to be compensable as an “accidental death,” Rock required that the means or cause of death be itself unforeseen. Perhaps unsatisfied with this test, however, the court adopted a wholly different test less than three months later. In Postler v. Travelers Ins. Co. (1916) 173 Cal. 1 [158 P. 1022] (hereafter Postler), overruled on another ground in Zuckerman v. Underwriters at Lloyd‘s, supra, 42 Cal.2d 460, 474, the beneficiary of an insured fatally wounded in a shooting incident sued on policies providing coverage, as here, for death from injuries caused by “accidental means.” The defendant insurer denied that the injuries were caused by “accidental means,” and this court agreed. But the court did not inquire whether the “means” of death was unforeseen, as required by Rock. Instead, it announced a new test: “the ultimate question” was whether the insured‘s death “was the natural and probable consequence of his own voluntary acts.” (Postler, supra, 173 Cal. at p. 5.) This was the equivalent, of course, of asking
Worse, the court apparently remained either unaware of or unconcerned by this inconsistency. In the third case in this series the court invoked both tests at once. (Olinsky v. Railway Mail Assn. (1920) 182 Cal. 669, 672 [189 P. 835, 14 A.L.R. 784].) In the fourth case the court relied exclusively on the “accidental means” test and remained silent on the “natural and probable consequence” test. (Ogilvie v. Aetna Life Insurance Co. (1922) 189 Cal. 406, 411-412 [209 P. 26, 26 A.L.R. 116].) In the fifth case the court reverted to invoking both tests at once. (Moore v. Fidelity & Casualty Co. (1928) 203 Cal. 465, 471-472 [265 P. 207, 56 A.L.R. 860].) And in the last case, conversely, the court relied exclusively on the “natural and probable consequence” test and remained silent on the “accidental means” test. (Harloe v. California State Life Ins. Co, supra, 206 Cal. 141, 142.) Such vacillation undermines any lingering precedential value these cases might have.
In any event, the “natural and probable consequence” test was no im- provement over the “accidental means” test. The “natural and probable consequence” test was not originally part of insurance law at all; the court imported it wholesale into insurance law from its sources in the law of crimes and torts.17 Yet as will appear (pt. III, post), when courts undertake to judge insurance cases by the standards of criminal or tort law they run the risk of defeating the very purpose of insurance by impairing the reasonable expectations of those who purchase the policies.
In similar circumstances we have not hesitated to depart from stare decisis and overrule outdated decisions of this court. (E.g., McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 356-358 [261 Cal.Rptr. 318, 777 P.2d 91]; Cianci v. Superior Court (1985) 40 Cal.3d 903, 921-925 [221 Cal.Rptr. 575, 710 P.2d 375]; City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 528-533 [162 Cal.Rptr. 327, 606 P.2d 362]; Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 389-408 [115 Cal.Rptr. 765, 525 P.2d 669]; Vesely v. Sager (1971) 5 Cal.3d 153, 161-167 [95 Cal.Rptr. 623, 486 P.2d 151]; Gibson v. Gibson (1971) 3 Cal.3d 914, 916-923 [92 Cal.Rptr. 288, 479 P.2d 648]; People v. Daniels (1969) 71 Cal.2d 1119, 1129-1139 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]; People v. Hutchinson (1969) 71 Cal.2d 342, 346-351 [78 Cal.Rptr. 196, 455 P.2d 132]; Smith v. Workmen‘s Comp. App. Bd. (1968) 69 Cal.2d 814, 819-825 [73 Cal.Rptr. 253, 447 P.2d 365]; Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 658-660 [320 P.2d 500, 65 A.L.R.2d 1].) We should not hesitate to do so now.
III
If, as I urge above, the beneficiaries need prove only that the insured died an accidental death, the next question is: what is an accidental death? The answer is not obvious. The policy does not define the words; again, there- fore, they “are to be understood in their ordinary and popular sense” (
As suggested above, a layperson who is asked to define accidental death might well begin by distinguishing it from what it is not: it is not a suicide, nor a death from disease, nor a death from the natural causes of old age. If pressed to say what it is, the layperson might reply that an accidental death is generally a death caused by injury, giving as examples deaths from automobile collisions, airplane crashes, fires, drownings, falls, poisonings, firearm mishaps, criminal assaults, and the like. But if asked to specify what exactly these accidental deaths have in common, the layperson might have more difficulty, and would probably be reduced to describing the deaths in such broad and general terms as happening by chance, unusual, unforeseen, unanticipated, unexpected, and unintended.
Courts have used all these terms, and more, in seeking to define “acci- dent” and “accidental.” (E.g., 3 Harnett & Lesnick, supra, § 7.06[3], pp. 7-129 to 7-132, 7-140 to 7-144, and cases cited.) This court joined the fray in 1891, asserting that the popular meaning of “accident” was “a casualty— something out of the usual course of events, and which happens suddenly and unexpectedly, and without any design on the part of the person injured.” (Richards v. Travelers Ins. Co., supra, 89 Cal. 170, 175.) We have since repeated this definition several times, most recently in Zuckerman v. Under- writers at Lloyd‘s, supra, 42 Cal.2d 460, 473, but it remains unsatisfactory on various grounds. To define an “accident” as a “casualty” is circular reasoning. Other key terms of the definition—unusual, sudden, unexpected, and undesigned—are inherently imprecise, their content largely in the eye of
It will be more fruitful, I submit, to return once again to first principles. A number of basic points can surely be agreed upon.
First, “When determining whether an event is an accident, the determina- tion is made from the point of view of the insured, and not from the point of view of some other person who was involved in the event.” (Fn. omitted.) (3 Harnett & Lesnick, supra, § 7.06[3], p. 7-129, and cases cited.)
Second, “Generally, accident policies should be so interpreted that provi- sions of the policies effectuate the reasonable expectations of the purchaser.” (1A Appleman, supra (1981) § 360, p. 447, fn. omitted; accord, e.g., AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d 807, 822, and cases cited.)
Third, the purchaser of accident insurance reasonably expects to be cov- ered, at the very least, for injury or death suffered through no fault of his own. These are instances in which laypersons would agree that the insured did nothing to contribute to the injury. (E.g., Reid v. Aetna Life Ins. Co. (S.D.Ill. 1977) 440 F.Supp. 1182, 1183, affd. without pub. opn. (7th Cir. 1978) 588 F.2d 835 [insured died after surgery when nurse put wrong drug in his intravenous solution]; Schonberg v. New York Life Insurance Company, supra, 104 So.2d 171, 172 [insured died in surgery from shock caused by “a very rare blood transfusion reaction“].) Because coverage is clear, such cases are rarely litigated.
Fourth, and at the other extreme, the insured cannot reasonably expect to be covered for deliberately self-inflicted injury (e.g.,
The difficulty occurs when the facts fall between these two extremes, i.e., when some act of the insured has contributed in some way to the injury. There are numerous cases, lying along a broad spectrum. At one end are cases in which the insured‘s act is innocent and trivial, and the injury is grossly disproportionate to the act. (E.g., Lewis v. Ocean Accident & Guarantee Corp. (1918) 224 N.Y. 18 [120 N.E. 56, 57, 7 A.L.R. 1129] [insured pricked pimple on his lip; pimple became infected, resulting in paralysis, blindness and death] (per Cardozo, J.); Griswold v. Metropolitan Life Ins. Co. (1935) 107 Vt. 367 [180 A. 649] [insured chopped kindling, stick flew up and cut him above the lip; cut became infected, resulting in paralysis and death]; Western Commercial Travelers’ Ass‘n v. Smith (8th Cir. 1898) 85 Fed. 401 [insured wore new shoes; friction of shoe caused skin abrasion on one toe and abrasion became infected, resulting in death].) The insured reasonably expects to be covered for such disproportionate injuries, and the courts uniformly hold them to be accidental.
Farther along the spectrum lies a larger group of cases in which the insured‘s act is not innocent but negligent, and contributes somewhat more to the outcome. Nevertheless, the courts uniformly hold that the ensuing injury is still accidental. “‘A very large proportion of those events which are universally called accidents happen through some carelessness of the party injured which contributes to produce them. . . . Yet such injuries, having been unexpected, and not caused intentionally or by design, are always called accidents, and properly so.‘” (Vennen v. New Dells Lumber (1915) 161 Wis. 370 [154 N.W. 640, 642].)
Again the courts make clear that they so hold because of the reasonable expectations of the insured. “Generally, insureds purchase accident insur- ance for the very purpose of obtaining protection from their own miscalcu- lations and misjudgments.” (Wickman v. Northwestern Nat. Ins. Co. (1st Cir. 1990) 908 F.2d 1077, 1088.) “Thoughtlessness, inattention, forgetfulness, miscalculation often are causes of accidents. People, in fact, often take out accident policies, not only to protect themselves from the fault of others, but from their own foibles and imperfections.” (Brenneman v. St. Paul Fire and Marine Insurance Co. (1963) 441 Pa. 409 [192 A.2d 745, 748]; accord, Gulf Life Insurance Company v. Nash, supra, 97 So.2d 4, 9-10 [to deny coverage for accidental death because the insured was negligent “would not only do violence to the reason for buying accident insurance[,] but if it did not preclude recovery in a great majority of deaths arising from accidents, it would place an almost insurmountable burden on the insured to enforce liability“]; Wiger v. Mutual Life Ins. Co. of New York, supra, 236 N.W. at pp. 538-539 [to deny coverage for death by accidental means whenever the injury was a foreseeable result of an act of the insured “is contrary to the common understanding of the term and tends unfairly to limit such policies to cases where the insured is guilty of no negligence“].)22
Still farther along the spectrum we reach, so to speak, the gray area, where the insured‘s act is more than negligence but less than a deliberate self- injury or suicide, and it contributes significantly to the outcome. Here the act leading to the injury is usually described in such terms as foolhardy or dangerous, grossly negligent or reckless. Unfortunately these are “loaded”
Yet the words—grossly negligent, reckless—are the same in both con- texts, and the semantic confusion has often misled courts into deciding insurance cases on moral or visceral grounds rather than by the application of legal principles. As the New Jersey Supreme Court candidly observed, the many conflicting decisions in this area do not “fall into a consistent and uniform pattern of analysis determined by the application of all-inclusive black and white rules. Very much seems to depend upon a court‘s unex- pressed feeling of the fair and reasonable result in the particular factual setting, with made-to-order criteria and language then being used to bring about legal conformance to the conclusion previously reached.” (Linden Motor Freight Co., Inc. v. Travelers Ins. Co., supra, 193 A.2d 217, 223.) Nevertheless, I believe it is possible to develop at least a principled frame- work for deciding these cases, and we should make the effort to do so.
When the issue is dispassionately considered, it appears that the goal of the courts should be to distinguish between cases in which the insured‘s act would be commonly viewed as tantamount to suicide and those in which it would not. We have all seen or heard of acts so reckless—or so brave—that we exclaim, “it would be suicide to do that,” even though we know the actor does not actually intend self-destruction. Those are the acts, I submit, that an insured cannot reasonably expect will trigger coverage for accident insur- ance: to do so would, as in the case of actual suicide, defeat the purpose of such insurance and amount to a fraud on its premium structure. (See fn. 21, ante.) Those are the cases, therefore, that the courts need to identify.
Conversely, in all cases in which the insured‘s act was more than negli- gent but not tantamount to suicide, the insured can reasonably expect to be covered. There is simply no principled way to deny ordinary accident insurance coverage for losses resulting from acts of this type. However understandable it may be for a court to disapprove of such acts, the disap- proval is misplaced here. Here we deal with the law of contracts, not the law of torts or crimes. The insurance company does not represent the public safety concerns of society but the commercial interests of its owners. Nor was the company forced to issue the policy; it voluntarily did so for the
First, an accident insurance policy may contain a clause generally exclud- ing coverage for injury or death resulting from “voluntary exposure to unnecessary danger.” (See, e.g., Wilson v. Travelers’ Insurance Co. (1920) 183 Cal. 65, 67 [190 P. 366]; Davilla v. Liberty Life Ins. Co. (1931) 114 Cal.App. 308, 312-313 [299 P. 831].) The exclusion is appropriate in the present context: it does not operate unless the insured‘s conduct was “more than negligence” (114 Cal.App. at p. 318), and the better rule is that “the insured must be guilty of gross or wanton conduct before a recovery will be denied.” (1B Appleman, supra (1981) § 531, p. 431, fn. omitted.) In the absence of such a clause, however, “the voluntary exposure of the insured to danger or his failure to exercise diligence in avoiding perils does not affect the right to recover under a policy.” (Id. at p. 428, fn. omitted.)
Accordingly, in cases in which the policy contains no exclusion for “voluntary exposure to unnecessary danger,” courts have held that “Unless the [insured] intended to produce the very result which occurred, the element of danger is both unimportant and immaterial, because . . . ‘Persons pro- tected by accident insurance may incur consciously hazards which may result in their injury or death without forfeiting the insurance, unless the policy expressly excepts the hazards.” (Richards v. Standard Acc. Ins. Co. (1921) 58 Utah 622 [200 P. 1017, 1025, 17 A.L.R. 118].)
Relating the matter to the reasonable expectations of the insured, the Arizona Supreme Court declared in the plainest terms that “When he pays that premium month after month he does not intend that any act committed by him, no matter how daring, reckless or foolhardy, be adjudged by a court under ‘reasonable man tests’ or ‘natural or probable consequence’ standards to deprive his beneficiary of contractual rights arising out of his unintended and unexpected and, therefore, accidental death. . . . [¶] Insurance compa- nies are the drafters of the policies they sell and if they want to exclude against reckless and foolhardy acts [citing examples] . . . they have it in their power to make such exclusions. With simplicity and clarity of expres- sion they may remove all doubt [citation].” (Knight v. Metropolitan Life Insurance Company, supra, 437 P.2d 416, 420.) In the case at bar the
Second, an insurance company may instead exclude particular risks against which it does not wish to insure. For example, the company may specifically exclude any death resulting from an act of the insured that is “in violation of law,” i.e., whether felony or misdemeanor. (1B Appleman, supra (1981) § 511, pp. 394-395 and cases cited.) Here the company excluded only death resulting from the commission of “an assault or felony,” a designation insufficient to govern this case.24 Or, still more specifically, the company may exclude any death resulting from the use or while under the influence of any narcotic or other controlled substance. (See 10 Couch, supra, § 41:456, p. 510, and cases cited.) Here the company excluded only death resulting from the “taking of poison or asphyxiation from inhaling of gas . . . .” Again the designation was insufficient to exclude the present loss.25
The lack of such specific exclusion clauses was held dispositive in a case decided on facts similar to our own, O‘Toole v. New York Life Ins. Co. (5th Cir. 1982) 671 F.2d 913. Finding accidental death coverage after an insured died from self-administration of cocaine, both the federal trial and appellate courts stressed the absence of appropriate exclusion clauses. The circuit court observed, “The district court opined that had [the insurer] ‘wished to exclude such a death, it should have expressly said so in its policy.’ We agree.” (Id. at p. 915.) And the circuit court emphasized that “In the instant case, the policy excluded death by suicide, but an exclusion for death resulting from the self-administration of drugs was not stated. In addition, the insurance contract did not deny benefits if the insured died during the commission of an unlawful act.” (Ibid.) The court therefore found it unclear whether the policy was intended to cover this type of loss, and held “it is ‘hornbook law that . . . such ambiguity will be resolved in favor of the
The commentators are in accord: “Presumably, the genre of accidental deaths or injuries not intended to be covered, such as intentionally injecting oneself with heroin . . . or any other manner of injury or death that the insurer does not wish to cover, can be specifically excluded in the insurance policy.” (3 Harnett & Lesnick, supra, § 7.06[3], p. 7-145.) Especially in cases of illegal conduct, “The trend is to permit recovery since the insurance company has the power to preclude recovery by inserting a specific exclu- sionary clause in the policy.” (Rothman, The Meaning of the “Accidental Means” Clause in Accident Insurance Policies (1981) 48 Ins. Couns. J. 231, 239.)26
The next question is how to distinguish between these two groups of cases, i.e., the cases in which the insured‘s act would be commonly viewed as tantamount to suicide and those in which it would not. This is the point on the spectrum at which uniformity of decision breaks down and courts reach different results on often similar facts. They do so largely because they take two different approaches to the question. As will appear, each of the approaches has its weaknesses, and a new analysis adopted by the federal courts seems more promising.
Courts are divided on whether the test of what is an accident should be objective or subjective. As noted above, the question whether an event is an accident is to be answered from the insured‘s point of view. (3 Harnett & Lesnick, supra, § 7.06[3], p. 7-129.) “If that view is an objective one, the determination would be made purely from the point of view of a hypothet- ical reasonable person in the place of the insured. If the view is a subjective
Courts using the objective test ask whether a hypothetical reasonable person in the place of the insured would have expected the injury or death resulting from the insured‘s conduct: “if the result is one which in the ordinary course of affairs would not be anticipated by a reasonable person to flow from his own acts, it is accidental. The test is, what effect should the insured, as a reasonable man, expect from his own actions under the circumstances.” (California State Life Ins. Co. v. Fuqua (1932) 40 Ariz. 148 [10 P.2d 958, 960].) It is important to understand the state of mind connoted by the word “expect.” As the Court of Appeal recently explained in the related context of a claim under a commercial general liability policy, because the word “expect” has no special or technical meaning in insurance law it is to be understood in its ordinary and popular sense (
The common meaning of “expect” is consistent with the purpose of accident insurance. As we have seen, insureds purchase accident coverage in significant part to safeguard themselves or their beneficiaries against the consequences of their own thoughtless, negligent, or even foolhardy acts. Because of that expectation, the better reasoned decisions of courts using the objective test hold that an unintended consequence of an insured‘s act should be deemed an accident unless a reasonable person would have believed it was “highly probable” or would have expected it to occur “in all probabili- ty.” (E.g., 3 Harnett & Lesnick, supra, § 7.06[3], p. 7-138, and cases cited.)
Thus in Freeman v. Crown Life Ins. Co. (Tex.Civ.App. 1979) 580 S.W.2d 897, the insured drove his pickup truck with a blood-alcohol content of between .188 percent and .207 percent, and died when he crashed into a parked tractor-trailer. The defendant insurer denied coverage under the insured‘s double indemnity clause on the ground that in the circumstances his death was “reasonably foreseeable” and therefore not accidental. The court rejected this reasoning and ordered judgment for the beneficiary, explaining that “The mere fact that a person‘s death may have occurred because of his negligence, even gross negligence, does not prevent that death from being an accident within the meaning of an accident insurance policy. It is only when the consequences of the act are so natural and probable as to be expected by any reasonable person that it can be said that the victim, in effect, intended the result and it was therefore not accidental. We think that
Thus far the objective test is helpful. The weaknesses of the test, however, lie in its violation of the axiom that an accident is to be viewed from the insured‘s perspective, and in its resulting failure to protect the reasonable expectations of the actual man or woman who takes out the policy. Purchas- ers of insurance are not fungible. Because they have widely different life experiences and skills, what is unreasonable for one to expect may be reasonable for another. The latter is entitled to the coverage that he or she has paid for. This distinction easily gets lost in applying the objective test: as inquiry focuses on the hypothetical reasonable insured, the real insured drifts out of the picture and soon disappears. Lacking a factual basis for their decision, courts then tend to fall back on the moral or visceral grounds discussed above.
Contributing to this phenomenon is the fact that courts generally apply the objective test by asking whether the accident was “reasonably foreseeable.” That standard, however, misleads courts into judging accident insurance cases by tort or criminal law standards, thereby again impairing the reason- able expectations of insureds.
The latter point is forcefully made by courts using the subjective test. Thus in Collins v. Nationwide Life Ins. Co., supra, 294 N.W.2d 194, the insured died from a large overdose of alcohol: the autopsy disclosed a blood-alcohol content of .37 percent. The defendant insurer denied coverage under the insured‘s double indemnity clause, and the Michigan Court of Appeals held that death caused by such a high level of voluntary intoxication was not accidental because it was “reasonably foreseeable.” The Michigan Supreme Court reversed, reasoning that “The Court of Appeals requirement that the consequences of decedent‘s act must not be reasonably foreseeable
The subjective test, nevertheless, has its own weaknesses, and they make the test inappropriate at least in certain cases. The first weakness is that the actual, subjective expectation of the insured may be difficult or impossible to learn when the insured dies as a result of the conduct. In that case, inferences about the insured‘s subjective expectation will often be speculative. And even when the insured does not die, a post-event claim about a pre-event state of mind may be self-serving or otherwise unreliable.
Secondly, even if the expectation in question can be determined, it may be so patently unreasonable that the insured‘s conduct would be commonly viewed as tantamount to suicide. As explained above, to treat a death resulting from such conduct as “accidental” would defeat the purpose of accident insurance and amount to a fraud on its premium structure.
In summary, when each of these tests—the objective and the subjec- tive—is the sole test applied, each has significant drawbacks. Yet as the cases show, a workable test is needed at this juncture. The dilemma may be resolved, I believe, by using neither test alone but rather an analysis de- signed to combine the best of both and avoid the pitfalls of each. This analysis was devised and first applied in 1990 by the First Circuit Court of Appeals in Wickman v. Northwestern Nat. Ins. Co., supra, 908 F.2d 1077 (hereafter Wickman). Because it is intended to be used in the first instance at the trial level, it is phrased in terms of the duties of the factfinder.
In the first step the factfinder must attempt to determine the subjective expectation of the insured, i.e., whether the insured actually expected that his conduct would be highly likely to result in his injury or death. This step is designed to fulfill insofar as possible the intent of the individual who purchases the policy and pays the premium. Although, as noted above, it may be difficult or impossible to determine that expectation in many cases,
For example, in Brown v. American Intern. Life Assur. Co. (S.D.Miss. 1991) 778 F.Supp. 912, one of the first cases to follow Wickman, supra, 908 F.2d 1077, firefighters called to the scene of a residence fire found the insured trapped in a bathroom, beating on the wall; gasoline had been poured throughout the house and had ignited; the insured‘s car was standing in the garage with the key in the ignition switch and the motor running; the car had been filled with many of the insured‘s personal belongings; among these was a bogus 35-page inventory purporting to list the contents of each room of the house, together with the insured‘s purse, mail, medication, clothes, and money. Prior to the fire the insured had stored additional personal property in rented storage space and had bought additional fire insurance on the house.
The insured died of her burns a few hours after the fire. She was insured under a policy providing a $100,000 benefit in case of her death from injury caused by an “accident.” The insurance company denied coverage on the ground that the insured had intentionally set fire to her own house and hence her death was not caused by an “accident.” In an action under the Employee Retirement Income Security Act, the federal district court awarded the accidental death benefit to the insured‘s beneficiary. The court explained that “the analysis begins with a determination of the insured‘s subjective expectation,” i.e., whether she expected to be harmed in the fire that she was apparently preparing to set herself. (778 F.Supp at p. 918.) Reviewing the circumstantial evidence of the insured‘s escape plans, the court concluded that she “did not intend to be injured; she fully expected to survive the fire and to cash in on fraudulent insurance claims. The facts clearly paint this picture.” (Ibid.)
The second step of the analysis is designed to preserve the purpose of accident insurance: “If the fact-finder determines that the insured did not expect an injury similar in type or kind to that suffered, the fact-finder must then examine whether the suppositions which underlay that expectation were reasonable. [Citation.] This analysis will prevent unrealistic expectations from undermining the purpose of accident insurance. If the fact-finder determines that the suppositions were unreasonable, then the injuries shall be deemed not accidental.” (Wickman, supra, 908 F.2d at p. 1088.)
The federal district court took that step in the just-discussed case of the insured who died in the fire she was preparing to set. (Brown v. American Intern. Life Assur. Co., supra, 778 F.Supp. 912.) The court reasoned (id. at p. 918), “The next question is whether Mrs. Brown was realistic in her expec- tation of escaping harm. As recognized in the Wickman case, supra, an insured‘s expectation, although genuinely felt, may be unreasonable. So, the next inquiry is whether Mrs. Brown realistically should have expected to escape injury during her attempt to enflame her home. The court finds in this circumstance that her expectation was reasonable, in spite of the ultimate outcome. Dave Berry, an investigator in the Arson Division of the Jackson Fire Department, testified that few arsonists perish in their own manufac- tured flames.”28
In other circumstances an insured‘s expectation of avoiding injury or death may be patently unreasonable. Perhaps the classic example of such an unreasonable expectation arises when the insured loses at Russian roulette. Thus in Thompson v. Prudential Ins. Co. of America, supra, 66 S.E.2d 119, the insured fatally shot himself in the head while playing Russian roulette with a friend. The defendant insurance company denied double indemnity benefits on the ground that the death was not caused by “accidental means.” The court affirmed a directed verdict for the insurance company on the following reasoning: when an insured kills himself playing Russian roulette, “his death or injury is no less intentional than had the gun been fully loaded and his death or injury cannot be said to have been the result of accident or effected by accidental means. In such a case, it will be presumed that the participant intended that he should be killed or injured should fate stop the cartridge in the spinning cylinder in firing position. One engaging in such a bizarre pass-time with a lethal weapon, if he be compos mentis, knows that he is courting death or severe injury, and will be held to have intended such obvious, and well known results, if he is killed or injured.” (Id. at p. 123; accord, Nicholas v. Provident Life & Accident Insurance Co. (1970) 61 Tenn.App. 633 [457 S.W.2d 536]; Koger v. Mutual of Omaha Ins. Co. (1968) 152 W.Va. 274 [163 S.E.2d 672].)
This reasoning has correctly been applied in a few other cases in which the insured‘s act was evidently very dangerous. Thus in Allred v. Prudential Insurance Company of America (1957) 247 N.C. 105 [100 S.E.2d 226], the insured, a 15-year-old boy intending to impress his friends, lay down lengthwise on the center white line of a two-lane rural road late at night and was killed when a car drove over that line as it passed by. In Kinavey v. Prudential Ins. Co. of America (1942) 149 Pa.Super. 568 [27 A.2d 286], the
Nevertheless, the factfinder must always keep in mind that what is pa- tently unreasonable for some insureds to expect may be just as patently reasonable for others, in light of their life experiences and skills. Accord- ingly, “The determination of what suppositions are unreasonable should be made from the perspective of the insured, allowing the insured a great deal of latitude and taking into account the insured‘s personal characteristics and experiences.” (Wickman, supra, 908 F.2d at p. 1088.)
For example, the cases illustrate that an act which for most people would be tantamount to suicide may be almost routine for a person experienced in doing it. Thus in Knight v. Metropolitan Life Insurance Company, supra, 437 P.2d 416, the insured, Jackie E. Knight, died after attempting a swan dive from the top of Coolidge Dam—about the height of the Golden Gate Bridge. His beneficiary sued for double indemnity under an “accidental means” policy. In denying recovery, the trial court concluded that as a reasonable person the insured should have anticipated that death or serious bodily injury would be the natural and probable consequence of his act of diving off the dam.
The Arizona Supreme Court unanimously reversed and directed entry of judgment for the beneficiary. The court carefully observed that “It is con- ceded in the evidence and the trial court made an express finding of fact that
From these facts the Arizona Supreme Court concluded (437 P.2d at p. 421): “Jackie E. Knight attempted a very daring dive. That a reasonable man might consider his voluntary stunt foolhardy does not of itself make the result any less accidental. He thought he could successfully perform the feat; and if he had not suffered the mishap of rolling over on his back just before he hit the water who is there to say that he would not be attempting dives from even greater heights today? ‘When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means.‘”30
Similarly, in Ward v. Penn Mutual Life Insurance Company (Mo.Ct.App. 1961) 352 S.W.2d 413, the insured climbed on top of his friend‘s station wagon, lay face down on the roof with arms outstretched, grasped the tops of the two front doors, and insisted on riding in that position while his friend drove the car through city streets at night. Eventually he fell off and was killed. His beneficiary successfully sued for double indemnity under an “accidental means” policy. On appeal, the defendant insurer contended it was entitled to a directed verdict because the insured‘s death was the natural and probable result of his voluntary self-exposure to great danger.
Notes
Ingold-Weil, Inc., was dissolved in August 1977.
The following statement of those rules tracks a recent unanimous opinion authored by the Chief Justice. (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-822 [274 Cal.Rptr. 820, 799 P.2d 1253].)
“Technical words are to be interpreted as usually understood by persons in the profession or the business to which they relate” (
The full sentence reads in full: “BENEFITS—The Company agrees, subject to the provisions of this Policy, to immediately pay to the Beneficiary or Beneficiaries, in addition to the other benefits provided by this Policy, the amount of additional accidental death benefit specified in the Policy Specifications, if due proof is furnished to the Company at its Home Office that the Insured, while this Policy is in full force and effect, has suffered the loss of life as the direct result of bodily injury, independent of all other causes, effected solely through external, violent and accidental means, as evidenced by a visible contusion or wound on the exterior of
the body (except in the case of drowning or internal injuries revealed by an autopsy), and that the date of death occurred within ninety days after such injury.”
A photocopy of the entire rider is attached hereto as an appendix.
“Surely, the insurance agents do not inform prospective accident insurance policy holders that, if they are injured or killed in an accident, the company may plead successfully that the accidental injury or death was not an injury or a death by accidental means. If the insurance agents should make it a practice to so inform their ‘prospects,’ the accident insurance companies would go out of business . . . .” (Parker v. Provident Life & Accident Ins. Co. (1934) 178 La. 977 [152 So. 583, 589] (dis. opn. of O‘Niell, C. J.).)
In another context Appleman makes the point more colorfully: “It almost resembles Amos and Andy‘s definition of an insurance policy as a paper where ‘the big print gives it to you, and the little print takes it away.‘” (8C Appleman, supra (1981) § 5080.35, p. 242.)
A logomachy is “a dispute over or about words . . . [a] contention in words . . . that have little or no actual relation to reality: [a] contention made up wholly or almost wholly of pure verbiage.” (Webster‘s New Internat. Dict. (3d ed. 1961) p. 1331.)
We observe that, even in those jurisdictions that have abolished (or never recognized) the distinction between “accidental means” and “accidental results,” several fairly recent decisions have concluded that coverage is not provided under accidental death policies for death resulting from voluntary and intentional use of controlled substances.
For example, in Patch v. Metropolitan Life Ins. Co. (4th Cir. 1984) 733 F.2d 302, the evidence established that the decedent, although not an addict, had used heroin previously, knew one person who had died and another who almost had died from using heroin, and had recognized it to be a dangerous drug, although he believed he “could handle it.” (Ibid.) Comparing such conduct to that of an insured who provokes a fight and reasonably may anticipate death or great bodily harm as a natural or probable consequence (id. at p. 303), the court concluded that if an insured voluntarily exposes himself to a well-known dangerous substance while fully aware of the risks, death is a natural, probable consequence and cannot be said to be accidental. (Id. at p. 304.)
One court has rejected the assertion that the voluntary administration of an illegal substance may constitute accidental death even though the insured‘s prior experience with the substance had not been or could not be established. In Republic National Life Insurance Co. v. Hamilton (Tex.Civ.App. 1963) 373 S.W.2d 275, the court concluded that the insured‘s death by an overdose of heroin was not accidental. The insured, whose body contained needle marks, was discovered inside an automobile with the windows rolled up and later was determined to have injected approximately one grain of heroin. After noting that heroin is a dangerous drug that is not prescribed and for which a lethal dose has not been established (id. at p. 278), the court concluded that, because it could not be determined whether the decedent, a young nonaddict, knew that a combination of heroin and a lack of oxygen could be lethal, the plaintiff had not met the burden of demonstrating that the decedent did not realize the danger to which he was subjecting himself. (Id. at pp. 279-280; but see, e.g., O‘Toole v. New York Life Ins. Co. (5th Cir. 1982) 671 F.2d 913, 914-915 [death by intentional injection of cocaine held accidental because the insured did not intend or expect death]; Marsh v. Metropolitan Life Insurance Co. (1979) 70 Ill.App.3d 790 [27 Ill.Dec. 158, 388 N.E.2d 1121, 1124-1125] [death by self-administered overdose of heroin held accidental because there was no undue exposure to death and overdose was unexpected, undesigned, and unintentional]; Beckham v. Travelers Insurance Company (1967) 424 Pa. 107 [225 A.2d 532, 536-537].)
“It is the layman, not the insurance attorney, who is insured; the latter would probably refuse many a policy with the wordings now standard in them [i.e., “death by accidental means“], knowing the effect which many courts have given thereto.” (1A Appleman, supra (1981) § 360, p. 454.)
We observe that the coroner‘s report, the prostitute‘s statements to the coroner‘s investigators, and Mr. Weil‘s statements to the prostitute all constitute hearsay. (
The record before us does not reflect any objection by plaintiffs to the evidence presented in the coroner‘s investigative report and, in fact, they have relied upon some of that evidence in their argument on appeal.
Bartlett agrees that the couplet is by John Byrom (1692-1763), but quotes it slightly differently:
“Strange! that such high dispute should be ‘Twixt Tweedledum and Tweedledee.” (Bartlett, Familiar Quotations (15th ed. 1980) p. 341.)
The contention is plausible: many courts follow Justice Cardozo in invoking both rules of interpretation in this context, i.e., “It is [the layperson‘s] reading of the policy that is to be accepted as our guide, with the help of the established rule that ambiguities and uncertainties are to be resolved against the company.” (Landress v. Phoenix Ins. Co., supra, 291 U.S. 491, 499 (dis. opn. of Cardozo, J.); see, e.g., Catania v. State Farm Life Ins. Co., supra, 598 P.2d 631, 633; Schonberg v. New York Life Insurance Company, supra, 104 So.2d 171, 176; Equitable Life Assur. Soc. v. Hemenover, supra, 67 P.2d 80, 82.) Some courts
specifically find ambiguous the phrase “accidental means.” (E.g., Knight v. Metropolitan Life Insurance Company, supra, 437 P.2d 416, 420.) Others find ambiguous in this context the words “accident” and “accidental.” (E.g., Freeman v. Commonwealth Life Ins. Co. of Louisville (1971) 149 Ind.App. 211 [271 N.E.2d 177, 181].)
It is true that 40 years ago this court remarked that the distinction should be drawn in “a proper case.” (Zuckerman v. Underwriters at Lloyd‘s (1954) 42 Cal.2d 460, 476 [267 P.2d 777].) But the court immediately pointed out that the appeal before it was not such a case,
The leading cases are Schonberg v. New York Life Insurance Company, supra, 104 So.2d 171; Mansbacher v. Prudential Ins. Co. of America, supra, 7 N.E.2d 18; Botts v. Hartford Acc. & Indem. Co., supra, 585 P.2d 657; Beckham v. Travelers Insurance Company (1967) 424 Pa. 107 [225 A.2d 532]; and Republic Nat. Life Ins. Co. v. Heyward, supra, 536 S.W.2d 549.
The leading cases are INA Life Insurance Company v. Brundin, supra, 533 P.2d 236; Knight v. Metropolitan Life Insurance Company, supra, 437 P.2d 416; Gulf Life Insurance Company v. Nash, supra, 97 So.2d 4; Murphy v. Travelers Ins. Co., supra, 2 N.W.2d 576; Catania v. State Farm Life Ins. Co., supra, 598 P.2d 631; and Scott v. New Empire Insurance Company, supra, 400 P.2d 953.