Maddox v. Colonial Life & Accident Insurance , 49 N.C. App. 251 ( 1980 )

MARTIN (Harry C.), Judge.

This appeal requires us to construe the insurance contract in question. In so doing, any ambiguity arising from the policy must be resolved in favor of the insured and against the company that drafted the instrument. Trust Co. v. Insurance Co., 276 N.C. 348, 172 S.E. 2d 518 (1970). An ambiguity arises in a policy when “in the opinion of the court, the language of the policy is fairly and reasonably susceptible to either of the constructions for which the parties contend.” Id. at 354, 172 S.E. 2d at 522. The meaning of language used in an insurance policy is a question of law. Trust Co., supra. The policy must be construed in its entirety and resort may be had to other portions of the policy in order to determine the meaning of a specific phrase or section. The policy should be so construed as to harmonize it as a whole, where possible. Id. An insurance contract is to be interpreted in the same manner as contracts generally, and unambiguous terms are to be given their usual, ordinary and commonly accepted meanings. Motor Co. v. Insurance Co., 233 N.C. 251, 63 S.E. 2d 538 (1951); Brown v. Insurance Co., 35 N.C. App. 256, 241 S.E. 2d 87 (1978). See generally 43 Am. Jur. 2d Insurance § 263 (1969).

The portions of the policy requiring resolution are:

EXCEPTIONS AND REDUCTIONS

The insurance under this policy shall not cover: (a) suicide while sane or insane; ...

For death covered by the provisions of this policy, where it results from ... shooting self-inflicted, . .. the amount payable shall be one-fifth the amount otherwise payable for accidental death ....

We do not find any ambiguity in the provisions of the policy that are in dispute. Nor are they irreconcilable. To the contrary, we find the two provisions to be in harmony. Bear in mind that this is a selected risk policy. Deaths resulting from suicide create a higher risk to the insurer and therefore are excluded from coverage. Additionally, certain other risks that are covered, such as gunshot wounds, are deemed by the company to be greater than others; the amount payable for death from these causes is one-fifth of the amount otherwise payable for accidental death.

Clearly, there are only two ways that one can shoot oneself with a pistol, causing death: (1) intentionally, that is, suicide, and (2) accidentally. Under the provisions set out above, where the shooting is intentional the policy does not afford any coverage. Where the shooting is accidental, the award is reduced to one-fifth of the amount otherwise payable.

Counsel for plaintiff would have us adopt the view that the phrase “shooting self-inflicted,” in the above reduction provision, applies only to intentional shootings by the insured. To do so would negate the suicide clause and create an ambiguity between the two provisions. We refuse to adopt this reasoning.

Plaintiff relies upon Lynch v. Mutual Life Ins. Co. of New York, 159 Pa. Super. Ct. 488, 48 A. 2d 877 (1946), and National Security Insurance Co. v. Ingalls, 56 Ala. App. 498, 323 So. 2d 384 (1975). In Ingalls the Alabama court in interpreting the phrase “shooting accidentally self-inflicted” held it meant “accidentally shooting oneself.” If the injury was caused in that manner, plaintiff could only recover twenty-five percent of the amount otherwise payable. The court held that the injury to plaintiff was caused by a cotton bar falling on a shotgun in his automobile, causing it to discharge, and that this was not “accidentally shooting oneself’ and therefore plaintiffs claim was not subject to the reduction clause. The Alabama court further stated that to “shoot oneself” connoted that the “injury results from direct, immediate, and conscious employment of a firearm by the victim,” thus distinguishing Ingalls’s injury in which he did not have the shotgun in his hand. 323 So. 2d at 386. Although Ingalls was not concerned with the reconciliation of a suicide provision with a reduction provision, our result is consistent with the Alabama court’s finding that a “shooting accidentally self-inflicted” means “accidentally shooting oneself.” We do not find Ingalls helpful to plaintiff’s position.

In Lynch the court was concerned with an exclusion for “self-inflicted injury” and held it meant one that the insured willed or intended. The court was applying the exclusion to the question whether chronic alcoholism was a self-inflicted injury. In affirming the judgment for the defendant insurance company, the court held if the result (alcoholism) was intended, it was a self-inflicted injury, whereas in our case we are concerned with whether the event that caused the result was intentional or accidental. The exclusion in Lynch is more similar to the suicide exclusion in our case than the reduction provision. Again, Lynch was not concerned with the relation of a suicide provision and a reduction clause and we do not find it persuasive or helpful. Nor do we find Parker v. Ins. Co., 188 N.C. 403, 125 S.E. 6, 39 A.L.R. 1085 (1924), analogous. There the Court was concerned with construing a suicide provision as to whether accidental death at the hand of the insured was included in the meaning of death by self-destruction.

Although we have not found any North Carolina cases directly in point, our holding is in accord with decisions in other jurisdictions. Colonial Life & Acc. Ins. Co. v. Cook, 374 So. 2d 1288 (Miss. 1979), involved a policy with a reduction clause identical to the one sub judice and issued by the same company. Deceased was getting into his truck with a pistol tucked into his belt. The gun discharged, fatally wounding him. There was no other evidence or contention as to cause of death. While the court did not analyze the policy with respect to the suicide and reduction clauses, it held plaintiff was only entitled to one-fifth of the amount otherwise payable under the circumstances of the case and the express terms of the policy.

In Lemmon v. Massachusetts Protective Ass’n, 53 F. 2d 255 (N.D. Okla. 1931), the court was concerned with a policy containing a suicide exclusion and a reduction clause to one-fifth of the amount otherwise payable for death resulting from “shooting self-inflicted.” Deceased died as a result of an unintentional gunshot wound. The court held the term “shooting self-inflicted” included an accidental shooting of insured by himself and affirmed the award of damages of one-fifth the amount otherwise payable. The court analyzed the policy with respect to the suicide and reduction clauses, held they were plain and unambiguous, and as such, it was the duty of the court to carry out the contract as actually made by the parties.

We find both Cook and Lemmon to be indistinguishable from the case at bar and strong authority in accord with our holding. The trial court erred in denying defendant’s motion for summary judgment and in granting plaintiff’s motion. The actions of the trial court are reversed and the case is remanded to the District Court of Swain County for the entry of summary judgment in favor of defendant.

Reversed and remanded.

Judge Clark concurs. Judge Hill dissents.