Jones v. Fireman's Fund American Life Ins. Co.

731 S.W.2d 532, 1986 Tenn. App. LEXIS 3491
CourtCourt of Appeals of Tennessee
DecidedDecember 30, 1986
StatusPublished
Cited by2 cases

This text of 731 S.W.2d 532 (Jones v. Fireman's Fund American Life Ins. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Fireman's Fund American Life Ins. Co., 731 S.W.2d 532, 1986 Tenn. App. LEXIS 3491 (Tenn. Ct. App. 1986).

Opinion

FARMER, Judge.

Suits were brought to recover under the accidental death provisions of policies on the life of Henry Tanner. The cases were consolidated in the trial court where all parties filed motions for summary judgment. The Chancellor granted summary judgment in favor of the defendants Prudential Insurance Company of America and Fireman’s Fund American Life Insurance Company, from which the plaintiffs appeal.

Plaintiff Helen Tanner Jones is the former wife of Henry Tanner and was the beneficiary under two policies issued on his life by Fireman’s Fund. Plaintiff Sherry A. Tanner was the wife of Mr. Tanner at the time of his death and the beneficiary of a policy on his life issued by Prudential. At the date of Mr. Tanner’s death on November 14,1983, Sherry and Henry Tanner had been married some eight and one-half years. Although divorce proceedings were pending, Mr. Tanner had continued to reside in the family home. The divorce case was set to be heard on November 17, 1983. Mr. Tanner had signed a reconciliation agreement but Mrs. Tanner had not signed.

On the date of his death, Mr. Tanner had dinner with his wife and two small children, ages three and five. They decided to go shopping and first returned to Mr. Tanner’s office in Mrs. Tanner’s car. He drove to Loehman’s Plaza followed by Mrs. Tanner in her car. After spending some time in an ice cream parlor, the family went to a shoe store to buy the children shoes. It was raining and at his suggestion, Mrs. Tanner went to get his car and waited for Mr. Tanner and the children to come out of the store. The children got in the back seat and Mr. Tanner in the front seat on the passenger side. Mrs. Tanner testified that he was subject to sudden mood changes and at this point appeared to be upset. She drove his car to the area where her car was parked and parked beside it. Mr. Tanner then reached below the driver’s seat of the automobile with his right hand and pulled out a pistol which he pointed at Mrs. Tanner. With his left hand, he placed Mrs. Tanner’s right hand over his right hand which held the pistol. Using both hands, she pushed the pistol away from her, his finger remaining on the trigger at all times. At no time was her finger on the trigger or inside the trigger guard. No words were exchanged between the two of them during the course of the struggle. The gun discharged. Mr. Tanner got out of the passenger side, still holding the gun, walked around behind the car and collapsed. He died as a result of a gunshot wound to the chest. Frequent altercations occurred throughout the marriage. There were occasions when Mr. Tanner would strike her. Ultimately the point was reached when she would resist his attacks and fight back.

The issues presented on appeal are whether the death of Henry Tanner was accidental and whether the phrases “loss of life resulting from bodily injury caused by an accident” and “accidental bodily injury” [534]*534are ambiguous and the terms therefore strictly construed against the defendant in-surors.

The Chancellor’s order granting defendants’ motions for summary judgment and denying plaintiffs’ states in part as follows:

Specifically, the Court finds as uncon-troverted facts that, at the time of the death of the insured, Henry F. Tanner, he was engaged in an unlawful act constituting at least an assault upon the person of the Plaintiff, Sherry Tanner. The Court further finds that, by placing the Plaintiff’s, Sherry Tanner’s, hand upon the weapon which the deceased insured was using to threaten her with at the time of his assault upon her, that the deceased insured placed himself in a position of jeopardy with a substantial likelihood of harm to himself resulting therefrom. Accordingly, and by applying the applicable reasonable man test of foreseeability to this situation, this Court finds that the Plaintiff, Sherry Tanner, could reasonably be expected to take action to defend herself under these circumstances and that the deceased insured, Henry Tanner, thereby voluntarily exposed himself to a known danger which resulted in his death, said death therefore not being an accident under the life insurance policies in question and the applicable law of the State of Tennessee.

Appellants contend that the Chancellor’s decision was based on Henry Tanner voluntarily exposing himself to a known danger which resulted in his death, therefore the death was not accidental, and that he applied the principle stated in Mutual Life Ins. Co. of New York v. Distretti, 159 Tenn. 138, 17 S.W.2d 11 (1929). They further contend that Mutual Ben. Health & Accident Ass’n v. Houston, 22 Tenn.App. 570, 124 S.W.2d 722 (1938) is controlling. Mr. Distretti’s store was robbed by armed bandits. As they were fleeing by automobile, he armed himself and ran outside and opened fire on them. They returned fire and Mr. Distretti was killed. In holding that his death did not occur through accidental means within the double indemnity provision of the life insurance policy, the Court stated:

We do not see how any reasonable man could have supposed armed desperadoes of this character would submit to being shot at or detained and would refrain from using their own arms to protect themselves and to effect their escape. It seems to us that any reasonable man must have anticipated the great probability of the fatal result of Distretti’s conduct on this occasion. We cannot accordingly see, in any view of the evidence, how his death could be regarded as accidental.
The law to be applied in cases like this is very well settled. Although injury be intentionally inflicted by another, nevertheless, if the injury was not naturally to be foreseen by the insured, it is an accidental injury within the meaning of a policy such as the one before us. [citations omitted]
The foregoing rule is often stated with the further qualification that the insured has been guilty of no misconduct and has made no assault on the person from whom he receives the injury.
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It may be considered in the case under consideration that Distretti was guilty of no misconduct; that he was within his rights in undertaking to halt these bandits by whom he had been robbed. If, however, he voluntarily and intentionally did a thing from which, as a reasonable man, he foresaw or should have foreseen that death or injury might result, such death or injury was not an accident.

17 S.W.2d at 12.

Thus, the principle established in Distret-ti is that one who voluntarily and intentionally does a thing from which, as a reasonable man, he foresaw or should have foreseen that his death or injury might result, such death or injury is not an accident.

In Mutual Ben. v. Houston, supra, decedent’s daughter and husband had a fight, during the course of which husband took a gun away from her which belonged to her father. She then went to her father’s home and the two of them, with a friend, returned to her home for the purpose of [535]*535getting her personal belongings. The husband was in bed at the time. When the father inquired as to the whereabouts of his pistol, the husband replied that it was under his pillow.

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Bluebook (online)
731 S.W.2d 532, 1986 Tenn. App. LEXIS 3491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-firemans-fund-american-life-ins-co-tennctapp-1986.