Linder v. Prudential Ins. Co. of America

250 S.E.2d 662 (1979)

39 N.C. App. 486

Ann A. LINDER v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA.

No. 7811SC129.

Court of Appeals of North Carolina.

January 16, 1979.

*664 Knox V. Jenkins, by James R. Laurence, Jr., Smithfield, for plaintiff appellant.

Emanuel & Thompson, by W. Hugh Thompson, Raleigh, for defendant appellee.

MORRIS, Chief Judge.

Plaintiff assigns as error the trial court's entry of a directed verdict in favor of defendant insurance company. The court concluded that the plaintiff's evidence failed to established that insured's death occurred under circumstances within the insuring provisions of the policy.

The burden is upon plaintiff, as named beneficiary in the insurance policy, to produce evidence sufficient to bring insured's death within the policy's insuring provisions. Barnes v. Insurance Co., 271 N.C. 217, 155 S.E.2d 492 (1967). Therefore, in reviewing the propriety of the directed verdict, we must determine if the evidence taken in the light most favorable to the plaintiff negates the possibility that insured died "solely through external, violent and accidental means". Id.; Slaughter v. Insurance Co., 250 N.C. 265, 108 S.E.2d 438 (1959).

Our courts continue to draw a critical distinction between the terms "accidental *665 death" and death by "external, violent and accidental means". The distinction is explained by our Supreme Court in Fletcher v. Trust Co., 220 N.C. 148, 16 S.E.2d 687 (1941). The following language from that decision has often been quoted with approval by our Courts:

"`Accidental means' refers to the occurrence or happening which produces the result and not to the result. That is, `accidental' is descriptive of the term `means.' The motivating, operative and causal factor must be accidental in the sense that it is unusual, unforeseen and unexpected. Under the majority view the emphasis is upon the accidental character of the causationnot upon the accidental nature of the ultimate sequence of the chain of causation." 220 N.C. at 150, 16 S.E.2d at 688.

In Henderson v. Indemnity Co., 268 N.C. 129, 150 S.E.2d 17 (1966), Branch, J., explained the rule as follows:

". . . although the results of an intentional act may be an accident, the act itself, that is, the cause, where intended, is not an `accidental means,' that where an unusual or unexpected result occurs by reason of the doing by the insured of an intentional act, with no mischance, slip or mishap occurring in doing the act itself, the ensuing death or injury is not caused by `accidental means.'" 268 N.C. at 132, 150 S.E.2d at 19.

In order to apply the established law to the facts of this case, it is first necessary to isolate the motivating, operative, and causal factor in the insured's death. We conclude that on the evidence in this case the causal factor is the pulling of the trigger discharging the automatic pistol held by the insured. We draw the line at this point in the causal chain of events, not because we are fully satisfied with the logic of our analysis, but to avoid infinite legal hair-splitting necessitated by the impractical and archaic state of our law. Nevertheless, we specifically reject any analysis that would establish the raising of the handgun as the causal factor, even assuming insured intentionally aimed it at his own head. Clearly, intentionally pointing a gun at one's own head, whether the gun is known to be loaded or "unloaded", is careless conduct. And because defendant did not present evidence nor did he request that the question of suicide be submitted to the jury, it is apparent that the defense is relying upon this careless conduct of insured to defeat the beneficiary's right of recovery. However, the policy language upon which defendant relies does not specifically exclude coverage because of insured's unnecessary exposure to danger as did the policy in Oakley v. Casualty Co., 217 N.C. 150, 7 S.E.2d 495 (1940). The insured's unnecessary exposure to danger does not necessarily remove him from the coverage of this "accidental means" policy. As we understand the law, even when an insured exposes himself or herself to reasonably foreseeable danger, if the ultimate causal factor is a "mischance, slip or mishap occurring in doing the act" (Henderson v. Indemnity Co., 268 N.C. at 132, 150 S.E.2d at 19), the resulting injury is caused by "accidental means" although coverage may be excluded by other policy provisions.

Plaintiff has produced evidence which tends to suggest that the gunshot may have been unintentional. Because her evidence is not wholly inconsistent with a finding that the gun may have been accidentally triggered, through a mischance, slip, or mishap, she is entitled to a presumption that the means were accidental, "`since the law will not presume that the injuries were inflicted intentionally by the deceased or by some other person'". Barnes v. Insurance Co., 271 N.C. at 219-220, 155 S.E.2d at 494. On the strength of that presumption and because varying inferences can be drawn from the evidence suggesting that insured had no reason to intend to shoot himself, the plaintiff is entitled to have her case resolved by a jury.

Because plaintiff is entitled to a new trial, we need not consider her argument that the trial court was without authority to enter the directed verdict after declaring a mistrial.

Reversed.

WEBB and HARRY C. MARTIN, JJ., concur.