dissenting. I dissent because I fully agree with the trial court’s decision that paragraph 27 of the exclusions section of appellee’s benefit plan excluded appellant Joe Bryan McGarrah’s medical expenses from coverage. This paragraph excluded:
27. DRUG ADDICTION OR TREATMENT THEREOF, OR SERVICES AND/OR SUPPLIES FOR INJURIES OR ILLNESS ARISING AS A RESULT OF BEING LEGALLY INTOXICATED OR UNDER THE INFLUENCE OF ANY NARCOTIC (UNLESS PRESCRIBED BY A PHYSICIAN).
The above language very clearly excludes “injuries. . .arising as a result of being. . .intoxicated. . . .’’The majority cites State Farm Mutual Automobile Ins. Co. v. LaSage, 262 Ark. 631, 559 S.W.2d 702 (1978), as holding that the words “arising out of’ encompasses a “but for” standard for determining whether a causal connection exists. With this I would agree. The majority then distinguishes the phrase “arising out of’ from the language of the exclusion in paragraph 27 where the words “arising as a result of’ appear. This is a distinction without any real difference. To occur as a result or consequence of being intoxicated is merely another form of expressing that a particular event or condition arose out of being intoxicated.
The majority holds that a “but for” test is inapplicable without articulating the test or standard which it contends should have been applied, saying only that “a more narrow causal connection need by shown.” It also holds that upon application of this undefined test, the appellant’s injuries did not arise as a result of appellant being intoxicated.
Appellant’s sixteen-year-old friend, Richard McDonner, who was driving appellant’s truck at the time of the accident had drunk “about fourteen beers” within the immediately preceeding five or six hours. I submit that one would have to be suicidal or drunk to ride as a passenger under these circumstances. There was no evidence that appellant was suicidal, but there was very clear and convincing evidence that he was drunk. This court is holding that appellant’s injuries are too far removed from appellant’s intoxication to have arisen “as a result of’ his intoxication. Certainly, a somewhat more direct connection between appellant’s intoxication and resulting injury could be imagined, e.g., impaired equilibrium which results in a fall, or diminished reaction time resulting in the loss of control of a vehicle, as apparently occurred with Mr. McDonner at the time of the accident. Virtually as closely connected, however, are injuries received by an intoxicated person with such diminished judgment that he would ride as a passenger with a driver who just earlier had consumed about fourteen beers.
The majority seems to suggest that appellant’s presence in the truck may not be attributed to his intoxication because he was not aware that he was being placed in his truck by the other boys. This rationale defies any logical analysis. The fact he was so intoxicated that he was unaware and unable to resist when his friends placed him in his truck with a drunk driver simply demonstrates the connection between his intoxication and his resulting injuries. Furthermore, the trial court had before it a statement made by appellant that McDonner had said that plaintiff “yanked” the steering wheel at the time of the accident. While appellant testified that he had no recollection of “yanking” the steering wheel, he was intoxicated to such an extent that he had no recollection of the truck ride at all. I respectfully disagree with the majority’s conclusion that “the causal connection between appellant’s intoxication, the accident, and his injuries [are] tenuous at best.” Appellant was not in bed asleep when his injuries occurred. He was drunk, riding as a passenger with a drunk driver, and may have jerked the steering wheel when the vehicle ran off the road and crashed into a tree.
The chancellor’s findings of fact were not against, but clearly consistent with, the preponderance of the evidence.
I would affirm the trial court.
Jennings, C.J., joins in this dissent.