Russ v. Life Insurance , 264 Ark. 783 ( 1978 )

James B. Sharp, Special Chief Justice.

The Jefferson County Circuit Court granted summary judgment in favor of Life Insurance Company of Georgia, the appellee. The appellant, Marianne Russ, brings this appeal alleging that there was a material fact issue and, therefore, summary judgment should not have been granted. We agree.

Clyde Russ was the Assistant Fire Chief in Pine Bluff. On December 27, 1974, he was involved in fighting a fire in Pine Bluff; according to some evidence Russ was overcome by smoke and heat and was seen leaving the scene coughing and vomiting.

Russ periodically returned to work thereafter but he died eighteen days after the fire. The death certificate listed the immediate cause of death as cardiopulmonary arrest due to acute myocardial infarction. Also, the death certificate mentioned that he had coronary artery disease and suffered from chronic bronchitis.

Marianne Russ, Chief Russ’ widow, filed suit against the appellee insurance company alleging that Chief Russ died from accidental causes which entitled her as beneficiary to the proceeds of a policy issued by the appellee on Chief Russ' life. The appellee filed a motion for summary judgment alleging there were no material facts in dispute and as a matter of law the death was not accidental as defined by the policy.

Relevant portions of the policy in question read:

The company will pay an additional amount upon receipt at its home office of due proof, (1) that the death of the insured . . . resulted directly from bodily injuries caused solely by external, violent and accidental means and independently of all other causes and which injuries are 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; (2) that the cause of such death was not one mentioned in the next paragraph; ....

Under this benefit provision, the company does not assume the risk of death caused or contributed to, directly or indirectly, by disease, by bodily or mental infirmity, ....

Several affidavits were filed in connection with the motion for summary judgment. One affiant stated that he observed Chief Russ at the scene of the fire, saw him leaving coughing, gagging and expressing that he had pain in the chest. Several affidavits indicated that prior to the fire Chief Russ was in good health. The physician who signed the death certificate filed an affidavit concluding:

... it is my opinion that the physical effort, and subsequent smoke, temperature exposure were sufficient to cause acute tracheo-bronchitis and comprise (compromise) cardiac functions sufficiently to predispose the patient to an acute myocardial infarction.

The trial court, finding no material fact issue, granted summary judgment for appellee citing the case of Jackson v. Southland Life Ins. Co., 239 Ark. 576, 393 S.W. 2d 233 (1965), as authority for its decision.

We disagree with the decision of the trial court and find that there was a material fact issue as to whether Russ’ death was accidental as defined by the policy. In other words, we cannot say as a matter of law, on the record before us, what was the sole and direct cause of Russ’ death. Since the appellant, by affidavits, has raised a material fact question which may have to be decided by a jury, or a judge sitting as a jury, summary judgment is precluded. The Travelers Ins. Co. v. Johnston, 204 Ark. 307, 162 S.W. 2d 480 (1942); Life and Casualty Ins. Co. of Tennessee v. Jones, 230 Ark. 979, 328 S.W. 2d 118 (1959); and, Jackson v. Southland Life Ins. Co., supra. The Arkansas statute on summary judgments is found in Ark. Stat. Ann. § 29-212 (Supp. 1977) and a part of subparagraph (c) is as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled tojudgment as a matter of law.

In the case of Russell v. City of Rogers, 236 Ark. 713, (page 714), 368 S.W. 2d 89 (1963), we stated:

It has been pointed out, under the Federal Rule, that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. . . . Hence any testimony that is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.

This view has been followed in Arkansas by a long line of cases which we have chosen here to follow.

We cannot say, as a matter of law, that the evidence presented requires us to hold that the insured’s death was not covered by the policy.

Reversed and remanded.

Fogleman, J., concurs. Byrd, J., dissents. Harris, C.J., not participating.