Butcher v. Nationwide Life Insurance , 56 N.C. App. 776 ( 1982 )

MARTIN (Robert M.), Judge.

The Accidental Death Benefit Rider issued on the life of Donald Butcher provided $10,000 insurance against “the death of the Insured . . . [resulting] directly and independently of all other causes from bodily injury caused solely by external, violent and accidental means.” In applying the law to the uncontroverted facts of this case, we conclude that the death of the insured was not caused by accidental means and that it was not, therefore, covered by the Accidental Death Benefit Rider. Defendant’s motion for a directed verdict should have been allowed.

The term “accidental means” refers to the occurrence or event which produces death and not to the death itself. Chesson v. Insurance Co., 268 N.C. 98, 150 S.E. 2d 40 (1966). The word “accidental” describes the means of death. Id. “The motivating, operative and causal factor must be accidental in the sense that it is unusual, unforeseen and unexpected . . .. [T]he emphasis is upon the accidental character of the causation — not upon the accidental nature of the ultimate sequence of the chain of causation.” Fletcher v. Trust Co., 220 N.C. 148, 150, 16 S.E. 2d 687, 688 (1941).

In Scarborough v. Insurance Co., 244 N.C. 502, 94 S.E. 2d 558 (1956), the insured (Midgette) was killed as the result of an altercation with another man (Baldwin). The uncontradicted facts were that, while in Norfolk, Virginia, Midgette argued with a stranger, Baldwin, who was sitting on the porch of his home. Midgette, after cursing Baldwin and while in a state of anger, rushed up the steps toward Baldwin; Baldwin jumped to his feet and shoved Midgette back onto a dirt sidewalk. Midgette’s head, however, struck the metal water meter which caused injuries resulting in Midgette’s death ten days later. There was no question but that the insured was the aggressor. The Court stated with approval the following principle from 45 C.J.S., Insurance, § 753, p. 779:

Where the policy insures against loss of life through accidental means, the principle seems generally upheld that if the death of the insured, although in a sense unforeseen and unexpected, results directly from the insured’s voluntary act and aggressive misconduct, or where the insured culpably provokes the act which causes the injury and death, it is not death by accidental means, even though the result may be such as to constitute an accidental injury.

Id. at 505, 94 S.E. 2d at 561. The court concluded that “the character and the extent of the insured’s aggression under the circumstances . . . are such as to exclude the concept of death by accidental means within the meaning of the policy.” Id. at 506, 94 S.E. 2d at 561.

Likewise, in another case involving the insured’s aggressive conduct, Clay v. Insurance Co., 174 N.C. 642, 94 S.E. 289 (1917), the Supreme Court interpreted a similar “accidental means” clause in a life insurance policy to invoke the test of “whether the insured, being in the wrong, was the aggressor, under circumstances that would render homicide likely as the result of his own misconduct.” Id. at 693, 94 S.E. at 290. The court adopted the proposition that where a person voluntarily invites another to a “ ‘deadly encounter . . ., his death, if he sustains a mortal wound, cannot be regarded as accidental by any definition of that term which has been heretofore adopted.’ ” Id. at 693, 94 S.E. at 290, quoting from Taliaferro v. Travelers’ Protective Ass’n., 80 Fed. 368, 370 (1897). In Clay, it appeared that the insured, after announcing that he would kill his adversary, first wrongfully assaulted him with a pea pole, three or four feet long, “a deadly weapon,” and then pursued the fight with a pistol. The insured was shot and killed by his adversary. The Supreme Court concluded that “[s]uch a homicide could in no sense be called accidental; but on the facts as they are now presented the death of one or both of the parties was not unlikely, and that of the insured was fully justified under the law.” 174 N.C. at 694, 94 S.E. at 290. While the Court ordered a new trial, it also directed that, if the facts in evidence were as presented by the appeal, the trial court should instruct the jury to return a verdict for the defendant.

In the present case, the insured died as a result of injuries sustained during an altercation with the plaintiff. The evidence showed that the insured instigated the fight and that, in the course of the fight, he obtained a kitchen knife with which he attacked the plaintiff. His death resulted from a wound caused by the knife. Under North Carolina law, this was not a death by accidental means, and the beneficiary of the accidental means insurance rider was not entitled to recover thereunder.

In attempting to prevent this result, the plaintiff has argued the case of Logan v. Insurance Co., 46 N.C. App. 629, 265 S.E. 2d 447, disc. review denied, 301 N.C. 93, — S.E. 2d — (1980). That case involved a life insurance policy with language different from the language we find in the policy in this case, and it is not, therefore, controlling.

The defendant’s motion for a directed verdict should have been allowed. The case is reversed.

Reversed.

Judges MARTIN (Harry C.) and WHICHARD concur.