Hicks v. Old Republic Life Insurance , 29 N.C. App. 561 ( 1976 )

225 S.E.2d 164 (1976) 29 N.C. App. 561

Cornelia P. HICKS
v.
OLD REPUBLIC LIFE INSURANCE COMPANY.

No. 7610SC113.

Court of Appeals of North Carolina.

June 2, 1976.

C. K. Brown, Jr., and William L. Thompson, Raleigh, for plaintiff appellant.

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

ARNOLD, Judge.

Plaintiff assigns error to the trial court's granting summary judgment for the defendant. Plaintiff argues that summary judgment should not have been granted because there is a genuine issue of fact presented as to the cause of death of Roy Hicks. We disagree.

Upon a motion for summary judgment, the burden is upon the moving party to establish that there is no genuine issue of fact remaining for determination and that the movant is entitled to judgment as a matter of law. First Federal Savings and Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972); Sanders v. Davis, 25 N.C.App. 186, 212 S.E.2d 554 (1975).

The defendant, as the moving party, supported its motion for summary judgment, as provided by Rule 56, with exhibits (the death certificate and supplemental death certificates), answers to interrogatories and a deposition. Through its evidentiary material defendant established by expert medical opinion that Roy Hicks died as a result of a myocardial infarction which was due to coronary arteriosclerosis. Death of the insured from myocardial infarction would prohibit the beneficiary from recovering under the accidental insurance policy coverage and entitle defendant to a judgment as a matter of law.

Since defendant's evidentiary matter established that cause of death was due to heart failure the plaintiff had the burden to respond by affidavit or other evidentiary matter to establish that there was a genuine issue for trial with respect to the cause of death, i.e., that the cause of death was not due to heart failure but due to accidental injury independent of all other causes.

Assuming arguendo that plaintiff's evidence in opposition to the motion for summary judgment raises an inference that the accidental fall contributed to the cause of death there is still no genuine issue for trial. Where death is caused by a pre-existing diseased condition in cooperation with an accident it is not an accidental bodily injury independent of all other causes. Horn v. Protective Life Insurance Co., 265 N.C. 157, 143 S.E.2d 70 (1965).

Defendant's evidence that cause of death was due to heart failure was not contradicted by plaintiff in response to the motion for summary judgment. The motion was properly granted.

Affirmed.

PARKER and HEDRICK, JJ., concur.