Maddox v. Colonial Life & Accident Insurance

Judge Hill

dissenting.

I dissent from the position taken by the majority. The trial court’s action denying defendant’s motion for summary judgment and entering summary judgment for plaintiff should be affirmed. Like the majority, I believe it is clear that “there are only two ways that one can shoot oneself with a pistol, causing death .A person can shoot himself intentionally; that is, commit suicide. A person can also self-inflict a gunshot wound so that the result — death — is an accident, although not due to accidental means. However, in a situation where no third party is involved, there is still a third way a person can die from a gunshot wound. A person can die from an accidentally inflicted gunshot wound. See Ingalls, supra, at p. 385.

Unlike the majority, I find the reasoning in Ingalls to be helpful. It does not concern me that the case only deals with a reduction clause because, given the reasoning set forth in Ing-*256alls, the clauses in the case sub judice would be consistent with each other.

The Ingalls court states at p. 386 that “[a]n injury is ‘self-inflicted’ only when the insured wills it or intends to cause it.” “[Tjhat which is unexpected and unintended, happening by chance” is “accidental.” Id. p. 386. As the majority correctly points out, recovery was not reduced in Ingalls because the injury, “while accidental, was not self-inflicted.” Injury did not result from the “direct and knowing employment of a firearm, but rather from the inadvertent application of an intervening force ....” Id. p. 386.

Like the majority, I believe the policy in the instant case makes it clear that where death results from suicide, coverage is excluded. Like the majority, I feel compelled to harmonize the exclusion and reduction clauses. Unlike the majority, I do not believe that, under the terms of the policy, “[w]here the shooting is accidental [coverage] is reduced .... ”

The policy states that it “provides indemnity for loss of life . .. caused by bodily injuries effected through accidental means” except as limited by the terms of the policy. Only when the accidental death is caused by a self-inflicted shooting would coverage in this case be reduced.

The evidence is clear. Carter Maddox died as the result of a gunshot wound. The defendant has not shown, however, that the wound was self-inflicted; and, in view of the fact that the pistol was still holstered when it discharged, I believe it is clear that the pistol discharged by accident.

I believe it is clear that Carter Maddox died accidentally and that his death did not result from a “direct and knowing employment of a firearm.” Id. p. 386. The policy must be construed in its entirety and summary judgment for plaintiff affirmed.