McKinnon v. Republic National Life Insurance

Reed, C.J.

(concurring) — I concur in the result reached by the majority. However, I believe Mrs. McKinnon's case highlights the pressing, if not urgent, need for a reexamination of the rule to which the courts of this state now pay allegiance and appear to be committed.

First, the cases in which our Supreme Court has invoked the Zinn-Euans2 rule and not found accident are distinguishable on their facts from the case at bar; these cases involved an intentional act which resulted in death because some internal condition made the decedent predisposed to *861the injury, which occurred in the performance of an ordinary activity.3 Zinn v. Equitable Life Ins. Co., 6 Wn.2d 379, 107 P.2d 921 (1940); Evans v. Metropolitan Life Ins. Co., Wn.2d 594, 174 P.2d 961 (1946). Whatever prompted Mr. McKinnon's leap into Portage Bay, such an action was not, on this record, among his ordinary and usual activities; nor is there evidence of any preexisting condition which made his leap unusually dangerous to him.

Second, the policy here covers "accidental bodily injury," rather than "bodily injuries sustained through external, violent and accidental means," as did the policies involved in Evans v. Metropolitan Life Ins. Co., supra at 597. Historically, many other state courts have distinguished between "accidental" and "accidental means" when applying a specific insurance policy provision to a variety of fact situations.4 The rule as stated in Evans has generally been applied where the policy at issue contains "accidental means" language. In Evans, our Supreme Court noted its discussion would be

an extensive examination of the authorities and a complete analysis of the subject relating to contracts such as were made by appellants and Mr. Evans.

(Italics ours.) Evans v. Metropolitan Life Ins. Co., supra at 604. The Evans formulation thus may not be applicable to the policies in this case.

*862In cases where the insurance policy at issue did not contain this "simple, yet tricky little term,"5 courts have generally not required. both accidental means and accidental results. Instead, they have looked to an accident definition more in accord with the ordinary and popular meaning of the word:

"happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected";

Martin v. Insurance Co. of North America, 1 Wn. App. 218, 220, 460 P.2d 682 (1969).

Third, the broad deference our court has granted fact finders, as pointed out by Judge Petrie, may indicate that Washington has, in effect, abandoned the technical "accidental means — accidental result" distinction which formed the basis of the Evans rule. In 1946, Evans noted that the majority of courts have adopted the distinction. Evans v. Metropolitan Life Ins. Co., supra at 613. Since that time, however, so many courts have rejected the distinction and held the two terms legally synonymous that it appears the Evans approach would now be followed only by a minority of state courts which have considered the question.6

Almost 50 years ago, in a dissent which has since become the majority rule, Justice Cardozo predicted

*863[t]he attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog.[7]

Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 499, 78 L. Ed. 934, 54 S. Ct. 461, 90 A.L.R. 1382 (1933) (Cardozo, J., dissenting). Such a bog as this artificial distinction might easily "swallow up" the average purchaser of accident insurance. Washington courts have long insisted, however, that the language of insurance policies should be interpreted in accordance with the way it would be understood by the average man purchasing insurance, rather than in a technical sense. Ames v. Baker, 68 Wn.2d 713, 415 P.2d 74 (1966); Zinn v. Equitable Life Ins. Co., supra; Starr v. Aetna Life Ins. Co., 41 Wash. 199, 83 P. 113 (1905). In Zinn our court quoted with approval then Chief Judge Cardozo's support for the average man's viewpoint in Lewis v. Ocean Accident & Guar. Corp., 224 N.Y. 18, 120 N.E. 56, 7 A.L.R. 1129 (1918):

'Probably it is true to say that in the strictest sense and dealing with the region of physical nature, there is no such thing as an accident.' But our point of view in fixing the meaning of this contract, must not be that of the scientist. It must be that of the average man . . .

(Citation omitted.) Zinn v. Equitable Life Ins. Co., supra at 386.

Finally, as one treatise writer has pointed out, many state courts which do make the distinction also hold that where, from the standpoint of the insured, death or injury is the unusual, unexpected or unforeseen (as opposed to unforeseeable) result of a voluntary act, the requirement of *864accidental means is satisfied.8 Thus, even if these policies contained accidental means language, these courts would hold that, absent a showing of suicide or intended injury, the question of accident should be for the jury. Although clearly Mr. McKinnon intended to enter the water, on this evidence a trier of fact could find he did not expect to be injured, much less to drown.

Reconsideration denied May 13,1980.

See the positive and negative formulations of this rule in Judge Petrie's opinion at page 857.

Hodges v. Mutual Benefit Health & Accident Ass'n, 15 Wn.2d 699, 131 P.2d 937 (1942) (heart attack while dancing); Bennett v. Mutual Trust Life Ins. Co., 21 Wn.2d 698, 152 P.2d 713 (1944) (cerebral hemorrhage immediately after routine and otherwise ordinary operation); Evans v. Metropolitan Life Ins. Co., 26 Wn.2d 594, 174 P.2d 961 (1946) (heart attack after pushing car); McMahan v. Mutual Benefit Health & Accident Ass'n, 28 Wn.2d 202, 182 P.2d 4 (1947) (pulmonary thrombosis when preexisting but unknown embolism dislodged during otherwise routine surgery); Bennett v. Metropolitan Life Ins. Co., 35 Wn.2d 284, 212 P.2d 790 (1949) (routine immobilization for broken hip for deceased already hospitalized for obesity, epilepsy and tuberculosis; preexisting conditions made the fatal pulmonary edema almost inevitable).

For a thorough discussion of the various distinctions involved, see Annot., Insurance: "accidental means’ as distinguishable from "accident," "accidental result," "accidental death," "accidental injury," etc., 166 A.L.R. 469 (1947).

1A J. Appleman, Insurance Law and Practice 23 (1965).

In addition to the 13 states listed in Annot., 166 A.L.R. 469, 473 n.20 (Arkansas, Colorado, Idaho, Iowa, Kansas, Nebraska, New York, Oklahoma, South Carolina, Utah, Vermont, Virginia and Wisconsin), the following cases effectively reject the distinction: INA Life Ins. Co. v. Brundin, 533 P.2d 236 (Alaska 1975); Knight v. Metropolitan Life Ins. Co., 103 Ariz. 100, 437 P.2d 416 (1968); Gulf Life Ins. Co. v. Nash, 97 So. 2d 4 (Fla. 1957); Taylor v. John Hancock Mut. Life Ins. Co., 11 Ill. 2d 227, 142 N.E.2d 5, rehearing denied (1957); Freeman v. Commonwealth Life Ins. Co., 149 Ind. App. 211, 271 N.E.2d 177 (1971); Schonberg v. New York Life Ins. Co., 235 La. 461, 104 So. 2d 171 (1958); Scott v. New Empire Ins. Co., 75 N.M. 81, 400 P.2d 953 (1965); Botts v. Hartford Accident & Indem. Co., 284 Ore. 95, 585 P.2d 657 (1978); Beckham v. Travelers Ins. Co., 424 Pa. 107, 225 A.2d 532 (1967); and Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549 (Tex. 1976).

The Serbonian Bog, formed around Lake Serbonis, was "a treacherous mixture of sand and water on the coast of Lower Egypt described by Diodorus Siculus, who said, 'Many unacquainted with the nature of the place, by missing their way, have been swallowed up, together with whole armies."' J. Milton, Paradise Lost, Samson Agonistes, and Lycidas, footnote to Book II, line 592 (E. LeCompte ed. 1961).

1A J. Appleman, Insurance Law and Practice 28 n.25 (1965). See, e.g., Cox v. Prudential Ins. Co., 172 Cal. App. 2d 629, 343 P.2d 99 (1959); Hammer v. Mutual Benefit Health & Accident Ass'n, 158 Ohio St. 394, 109 N.E.2d 649 (1952).