Rossman v. New York Life Insurance

199 S.E.2d 681 (1973) 19 N.C. App. 651

William B. ROSSMAN and Amelia Rossman
v.
NEW YORK LIFE INSURANCE.

No. 7315SC534.

Court of Appeals of North Carolina.

October 24, 1973. Certiorari Denied January 9, 1974.

Bryant, Lipton, Bryant & Battle by Victor S. Bryant, Jr., Durham, for plaintiff appellants.

Smith, Moore, Smith, Schell & Hunter by Larry B. Sitton, Greensboro, for defendant appellee.

Certiorari Denied by Supreme Court January 9, 1974.

HEDRICK, Judge.

There being no genuine issue as to any material fact, the question to be resolved on this appeal is whether defendant is entitled to judgment as a matter of law. G.S. § 1A-1, Rule 56(c), Rules of Civil Procedure. Plaintiff first contends that the substantive law of the State of New York governs this action since both contracts of insurance were completed in the State of New York; however, N.C.G.S. § 58-28 declares that "All contracts of insurance on property, lives, or interests in this State shall be deemed to be made therein. . . ." Therefore, since at the time of his death James Rossman was a resident of North Carolina, under the provisions of G.S. § 58-28, the life insurance policies in question are deemed to have been made in North Carolina and are subject to the laws of this State.

The only question remaining is whether Rossman's death resulted from "accidental bodily injury". Both policies contain identical clauses which declare that in order to qualify for double indemnity benefits it must be proved that "insured's death resulted directly, and independently of all other causes, from accidental bodily injury". The parties are in agreement that the intraveneous injection of the methyl amphetamine was intentional; thus, our inquiry must be directed to the impact on the terms of the policy of such a voluntary, intentional act.

The key word appearing in that portion of the insurance contracts dealing with double indemnity benefits is "accidental". Justice Bobbitt (now Chief Justice) writing for the court in Mills v. Insurance Co., 261 N.C. 546, 135 S.E.2d 586 (1964) was confronted with the same phrase "accidental bodily injury" and in ascertaining the meaning of the salient word "accidental" he stated: "The word `accidental' in the absence of a policy definition, must be interpreted in its usual, ordinary, and popular sense." The Mills decision, in seeking to determine the usual, ordinary, and popular meaning of "accidental bodily injury" cited cases which afforded coverage for death or injury by "accidental means", and quoted with approval the following statement of Justice Higgins in Fallins v. Insurance Co., 247 N.C. 72, 100 S.E.2d 214:

"An injury is `effected by accidental means' if in the line of proximate causation the act, event or condition from the standpoint of the insured is unintended, unexpected, unusual, or unknown."

There being in the instant case no policy definition of "accidental" we conclude that the usual, ordinary, and popular definition of "accidental" would not include "intentional bodily injury", and that James Rossman's intentional self-injection of methyl amphetamine was not an "accidental bodily injury" but rather an "intentional bodily injury". Therefore, on this record, the plaintiff is not entitled to double indemnity benefits. See also, Whiteside v. New York Life Insurance Company, 7 Wash. App. 790, 503 P.2d 1107 (1972).

The defendant was entitled to judgment as a matter of law which is

Affirmed.

PARKER and BALEY, JJ., concur.