dissenting:
I respectfully dissent. This case should have gone to the jury.
I agree with my colleagues and the trial court that under a disability income policy insuring against “loss resulting from . accidental bodily injury,” the following general rule applies:
*810[T]he mere fact that a person insured against accidental injury, or death, voluntarily and wrongfully assaulted another will not be sufficient to characterize as nonaccidental all possible injuries which he received in the course of, or as a consequence of his attack, but such injuries may be regarded as accidental unless they were a natural or a probable result of the insured’s actions reasonably foreseeable by him, or by a reasonably prudent man in his position. \Ante at 809 (quoting supp. record at 21-22 with emphasis added).]
By affirming a directed verdict here, however, my colleagues, in effect, are holding as a matter of law that whenever someone embarks on a criminal enterprise carrying a gun, he or she necessarily foresees using it, getting shot, and being disabled. Under these circumstances, a jury question will never be presented under the general rule set forth above; recovery under a disability policy covering “accidental bodily injury” will automatically be precluded. Although one can sympathize with the result achieved by the majority, I disagree with a directed verdict here, for two reasons.
First, D.C. Code 1973, § 35-712(3)b)(10) provides, with an immaterial exception, that unless different wording is approved by the Superintendent of Insurance, no policy shall contain an “exclusion” for disability arising in connection with commission of a felony unless the following language is used:
“Illegal Occupation: The insurer shall not be liable for any loss to which a contributing cause was the insured’s commission of or attempt to commit a felony or to which a contributing cause was the insured’s being engaged in an illegal occupation.”
Such an exclusion has been authorized by the D.C. Code since 1934. No such provision appears in the Nationwide policy at issue here.
The significance of the omission is this: Because the policy itself is the insured’s only guide to coverage and has a prominently-featured “exclusions” section an insured typically would expect coverage for disability attributable to injuries unintentionally received unless the policy specifically excludes it. Traditionally, therefore, the insurer protects itself against liability for disability incurred during the commission of a felony by inserting an exclusion of the sort prescribed in § 35-712(3)(b)(10). Because insurance is a highly competitive business, however, a company often will risk marketing a disability policy without this or other traditional exclusions, in the hope that its agents and independent brokers will be able to convince consumers that its policy is preferable to others because of more complete coverage. Nationwide has taken that risk here and, given my colleagues’ ruling, has benefited from judicial creation of a virtually absolute exclusion that Nationwide itself elected to omit.
I do not quarrel with the general rule allowing a factfinder to conclude that, despite the absence of a specific exclusion, the insured is barred from recovery because the injury causing disability was not “accidental;” i.e., it was, rather, “a natural or a probable result of the insured’s actions reasonably foreseeable by him.” In other words, I agree that, in fairness to the insurance company, the absence of a felony exclusion should not be determinative; the law should recognize that disability can arise in a context that reasonable persons would not call “accidental.” But whether particular conduct is accidental is a classic jury question. Given that insurance contracts should be construed, “if reasonably possible,” in favor of coverage, 13 J. Apple-man, Insurance Law and Practice § 7386 (1976),1 and that it is not against public policy to permit insurance recovery for injuries leading even to death attributable to *811the insured’s criminal activity,2 I see no basis for withholding this case from the jury.
There is a second reason for reversal. I suspect that the trial court would have sent the case to the jury were it not for the court’s erroneous application of our case law on collateral estoppel. Appellant attempted to introduce evidence concerning his altercation with the police, in order to demonstrate that, under the circumstances, his injury from a police bullet was not reasonably foreseeable. Accordingly, appellant’s counsel made a proffer:
Specifically, we would want to include the fact that he at a time when he was unarmed had no intent to cause harm to anyone and was thereafter shot. [Emphasis added.]
Appellant’s counsel proffered, in other words, that there was a hiatus between the time appellant initiated the gunfire and the time the police shot him. He allegedly had withdrawn from the conflict, and thus the police gunfire, and his consequent injury, were not reasonably foreseeable.3
The trial court, nonetheless, excluded evidence of the alleged hiatus, citing Ross v. Lawson, D.C.App., 395 A.2d 54 (1978), for the proposition that the doctrine of collateral estoppel barred such evidence, since appellant’s criminal convictions for attempted murder and possession of a sawed-off shotgun — in the words of Nationwide’s counsel arguing to the trial court — were conclusive on the fact that appellant “had the intent to kill an officer . . . [and] had the intent to use a sawed-off shotgun in an offensive and aggressive manner.” Thereafter, the trial court made the following finding, which appellant’s proffered but excluded evidence was intended to refute:
The record discloses that Mr. Byrd initiated the event by firing the weapon at a police officer, obviously an armed individual, and that the return fire by the officer and officers was, indeed, a natural and probable consequence of that action.
It is true, apropos of Ross, supra, that the issue of appellant’s criminal intent could not be relitigated, and that a police officer in the line of appellant’s gunfire presumably could prevail in a civil assault suit against appellant. But the issue of criminal intent is different from the question whether a reasonable person who initiates a criminal altercation must be said, as a matter of law, to foresee being injured in that situation. Moreover, if the jury had been allowed to consider whether appellant’s aggression had abated by the time the police shot him, it presumably would have had room to find that his injury from police gunfire was not reasonably foreseeable, irrespective of his original criminal intent.
In summary, the injection of collateral estoppel into this case via Ross, supra, was an erroneous shortcut to the trial court’s finding that the “return fire by the officer and other officers was, indeed, a natural and probable consequence of that action.”
I would reverse and remand for trial.
. More specifically, according to Appleman:
[I]t must not be forgotten that the primary object of all insurance is to insure. A construction should be taken which will render the contract operative rather than inoperative, and which will sustain the claim for indemnity, if reasonably possible, rather than exclude it. [Id. at 148-49 (footnotes omitted).]
. We stated in Dent v. Va. Mut. Benefit Life Ins. Co., D.C.App., 226 A.2d 166, 168 (1967):
Appellee contends, however, that to permit recovery by even an innocent beneficiary when death is the result of the insured’s criminal conduct is contrary to public policy. We disagree. If insurance companies desire to avoid liability on such ground, they are free to insert a clause in their policies to that effect. Such a clause would be valid and binding. [Citation omitted.]
. I therefore do not agree with my colleagues’ assertion that “[t]he record does not reflect that appellant ever made a proffer at trial to support his assertion that he ceased his attack and withdrew from his criminal venture and thereafter was shot and wounded by the police.” Ante at 809. Counsel’s complete argument on the cross-motions for directed verdict makes clear that there was only one reason why appellant had not sought — beyond the proffer quoted in the text above — to establish “[w]hether those police officers’ shots were responsive and required, or whether they were otherwise,” (quoting supp.rec. at 12): id. the trial court’s prior collateral estoppel ruling precluded the argument.