(dissenting in part). We are concerned in this action solely with accidental death benefits from insurance policies issued by the defendant insurers to plaintiff’s husband, Gabriel A. Caporino. The defendants have already made basic life payments on each policy where applicable.
Special Term in its decision of August 2, 1982, denying the motions of Aetna Life Insurance Company, Insurance Company of North America and the Prudential Insurance Company of America for summary judgment, asserted that the language in their policies and that contained in the policy issued by defendant Travelers Insurance Company was “relatively similar”. The provisions are similar but they are not identical in language.
The Travelers policy states that the additional indemnity shall be paid “immediately upon receipt of due proof that the death of the said Insured has resulted from bodily injuries effected directly and independently of all other causes through external, violent and accidental means within ninety days from the date of the accident which shall have caused such injuries and of which * * * there is a visible contusion or wound on the exterior of the body”.
*166The policy of the Prudential Insurance Company similarly has a clause under the heading “Accidental Means Death Benefit as Limited and Defined Herein” which reads, in pertinent part, “[T]he Company will pay the amount of the Accidental Means Death Benefit * * * upon receipt at the Home Office of due proof that the death of the Insured occurred as a result, directly and independently of all other causes, of bodily injuries effected solely through external, violent and accidental means. The aforesaid injuries must be evidenced by a visible contusion or wound on the exterior of the body except in the case of drowning or of internal injuries revealed by an autopsy. The Company shall have the right and opportunity to examine the body and, unless prohibited by law, to make an autopsy”.
Both defendants Travelers and Prudential are entitled to have their contracts of insurance enforced without a construction contrary to their express terms (Well v Globe Ind. Co., 179 App Div 166). Courts cannot change terms by judicial construction, even in cases involving exemptions from liability, where the terms are free from ambiguity and uncertainty as to meaning (see 29 NY Jur, Insurance, § 606, p 594). Both of these policies require “a visible contusion or wound” on the exterior of the body. Thus, it has been held where an insured died from sunburn that the effects of sunstroke did not constitute proof of a “visible contusion or wound on the exterior of the body”. The court there recounted that medical testimony in the trial would lead to the conclusion that sunburn was a “wound” but that the language in insurance policies is not to be construed like words of art but given such meaning as the average policyholder, as well as the insurer, would attach to it (Dupee v Travelers Ins. Co. of Hartford, Conn., 253 App Div 278, 279; see, also, Johnson v Travelers Ins. Co., 269 NY 401, 407-408; Breslow v Manhattan Life Ins. Co., 36 AD2d 676).
A fortiori, in the instant action, where there is no body, the terms of the contracts of insurance of Prudential and Travelers have not been met, since these terms are to be taken and understood in their plain, ordinary and popular sense (Mansbacher v Prudential Ins. Co. of Amer., 273 NY 140; Johnson v Travelers Ins. Co., supra).
*167The two remaining policies, however, do not contain the above express, limiting language. Accordingly, in these policies issued by Aetna and the Insurance Company of North America, proof that the insured’s death was caused solely through “external, violent or accidental means” need not be by direct evidence, as asserted by defendant insurers, but may be by indirect or circumstantial evidence. The applicable rule of law in the absence of any policy provisions to the contrary is that the time of death and the fact that the death of the insured resulted from accidental means may be proven by circumstantial evidence, and it is sufficient if there is a preponderance of the evidence whether direct or circumstantial on such an issue (see Ursaner v Metropolitan Life Ins. Co., 274 App Div 77, affd 299 NY 730; Melbourne Airways & Air Coll. v Thompson, 190 So2d 305 [Supreme Ct, Fla]; Firemen’s Fund Amer. Life Ins. Co. v Wohl, 334 So2d 261 [Dist Ct of App, Fla]).
Thus, an issue of fact was raised below as to whether Aetna and INA would be liable for accidental death pursuant to their policies of insurance.
Parenthetically, I note that the policy of INA insured, inter alia, against hazards to which the insured may be exposed, during travel on the business of the policyholder (decedent’s employer). Under the heading “Exposure and Disappearance”, the policy reads, in pertinent part, “If the body of the Insured has not been found within one year of the disappearance, stranding, sinking or wrecking of any vehicle in which the Insured was an occupant, then it shall be presumed * * * that the Insured has suffered loss of life covered under this policy.” This appears to raise a further issue as to whether the insured’s disappearance from the rental automobile would fit these terms and thus impart liability to this insurer on an additional basis.
Accordingly, the order of Special Term (Andrew R Tyler, J.), entered on January 8, 1982, which granted defendant’s the Travelers Insurance Company’s motion for summary judgment, should be affirmed. The order of Special Term (Jerome Marks, J.), entered on August 5, 1982, which denied the motion of the defendant Prudential Insurance Company of America for summary judgment, *168should be reversed on the law, and the motion granted. The orders of Special Term (Jerome Marks, J.), both entered on August 5, 1982, which denied the motions of defendants Aetna Life Insurance Company and the Insurance Company of North America for summary judgment, should be affirmed.
Kupferman, J. P., and Ross, J., concur with Bloom, J.; Sandler and Asch, JJ., dissent in part in an opinion by Asch, J.
Order, Supreme Court, New York County, entered on January 8, 1982, reversed, on the law, and the motion denied. Plaintiff-appellant-respondent shall recover of defendant-respondent $75 costs and disbursements of this appeal. Three orders of said court, all entered on August 5, 1982, affirmed. Plaintiff-appellant-respondent shall recover of defendants-appellants one bill of $75 costs and disbursements of these appeals.