Keating v. J.C. Penney Life Insurance

660 N.W.2d 887, 11 Neb. Ct. App. 757, 2003 Neb. App. LEXIS 110
CourtNebraska Court of Appeals
DecidedApril 29, 2003
DocketNo. A-01-1045
StatusPublished

This text of 660 N.W.2d 887 (Keating v. J.C. Penney Life Insurance) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keating v. J.C. Penney Life Insurance, 660 N.W.2d 887, 11 Neb. Ct. App. 757, 2003 Neb. App. LEXIS 110 (Neb. Ct. App. 2003).

Opinion

Carlson, Judge.

INTRODUCTION

Allen H. Keating and Janice Miller, children of Charlotte Keating (Keating) and the beneficiaries of Keating’s life insurance policy with J.C. Penney Life Insurance Company (J.C. Penney), appeal from an order of the district court for Douglas County dismissing the beneficiaries’ petition for $50,000 of life insurance proceeds. The trial court held that Keating’s death was not a direct result of a collision or crash of her automobile, but resulted directly and independently from her disorientation. For the reasons set forth below, we affirm.

BACKGROUND

On April 7, 1999, Keating entered into an insurance contract with J.C. Penney in which J.C. Penney agreed to insure Keating’s life against death by accidental means in exchange for her payment of monthly premiums.

Part II of Keating’s policy with J.C. Penney, entitled “Benefit for Travel by Private Passenger Automobile and Land Motor Vehicle,” states:

If a Covered Person is injured:
1. by being struck by a Private Passenger Automobile; or
2. as a direct result of a collision or crash of a Private Passenger Automobile', or
3. by being struck by a Land Motor Vehicle; or
4. while driving for hire a Land Motor Vehicle;
we will pay the applicable benefit specified in Part II of the Schedule of Insurance for the appropriate Loss as shown in the Schedule of Losses and Benefits below.

(Emphasis supplied.)

The schedule of losses and benefits states that if an insured is involved in an automobile accident, the insured or his or her beneficiary would be entitled to $100,000 unless the insured person was age 70 or older. In that case, the benefits would be reduced by 50 percent, or $50,000. The schedule also states that for “[a]ll [759]*759other covered accidents at home, at work, at any public or private place, anywhere,” an insured would receive $25,000, with benefits reduced by half when the insured reaches age 70.

The record shows that Keating died on April 8,1999, and that subsequently, J.C. Penney paid the beneficiaries $12,500.

On October 26, 1999, the beneficiaries filed a petition alleging that on April 8, Keating sustained bodily injuries by accidental means, which independently and exclusively of disease and all other causes, resulted in Keating’s death on the same date. Specifically, the beneficiaries alleged that Keating’s injuries were a direct and proximate result of a collision or crash of a private passenger automobile. Furthermore, the beneficiaries alleged that although J.C. Penney had paid them $12,500, it had neglected to pay them the remaining sum of $37,500. The beneficiaries requested that J.C. Penney pay them the additional sum of $37,500, together with interest from April 8.

In an answer filed December 1,1999, J.C. Penney stated that the insurance policy J.C. Penney issued to Keating was based upon Keating’s representation that her date of birth was May 8, 1931. J.C. Penney stated that if it had known Keating’s true birth date was May 7, 1912, it would not have issued coverage to Keating. J.C. Penney stated that the beneficiaries were not entitled to the benefits that they had already received or any future benefits.

In a reply filed December 3, 1999, the beneficiaries stated that J.C. Penney could not allege Keating’s mistaken age as an affirmative defense because J.C. Penney had failed to attach a copy of Keating’s application for insurance as required under Nebraska law.

Subsequently, both parties moved for summary judgment, and the trial court denied both motions. The parties then submitted their case to the court for a decision on the merits through a stipulation and agreed statement of facts, together with the exhibits offered by the parties at the summary judgment hearing.

The agreed statement of facts reads as follows:

On Thursday, April 8, 1999 . . . Keating, who was 87 years of age, resided at 4404 Marcy Street, in Omaha, Nebraska.... Keating was the owner of a 1995 Oldsmobile Ciera automobile which on said date had an odometer [760]*760reading of approximately 5,000 miles. During the afternoon of April 8,1999[,] Keating left her home to pick up her dog at a veterinarian’s office in [w]est Omaha, driving her Oldsmobile automobile. . . . Keating did not arrive at the veterinarian’s office and was reported as a missing person. On April 9, 1999[,] at about 7:30 o’clock A.M. her body was found in a farm pasture located 7 miles east and 2.5 miles north of Milligan, which is in Saline County, Nebraska. Two farmers reported the discovery of the body to the Saline County Sheriff’s office. Deputy Sheriff Michael J. Kovark proceeded to the scene and upon examining the body determined that. . . Keating was deceased. Photographs in evidence show that the body was lying face down in the farm pasture and that.. . Keating was wearing no coat or shoes. A copy of the incident report completed by Deputy Kovark is in evidence. This report recites that at said time the temperature was cool and a coat was needed. Sheriff Byron Buzek[,] in his deposition, testified with respect to the weather conditions at the time as being cool and sufficiently low to result in exposure. He estimated the time of death to be about midnight.
When Sheriff Buzek arrived at the scene he instructed Deputy Kovark to search for a vehicle. . .. Keating’s vehicle was located on a dirt road approximately one-half mile to the southeast. The vehicle was stuck in the mud in the county road ditch on the east side of the road. It was facing north. Deputy Kovark, in his report, states that he noticed that the vehicle had struck some types of objects and upon a closer look he could tell that the vehicle had several scratches in the paint as if it had hit trees along the edge of the roadway. The driver’s side mirror was completely damaged and hanging from the door and the driver’s side windshield wiper was lying on the ground. The driver’s side rear quarter panel had a dent in it along with several scratches. The photographs taken at the scene show this damage to the car and also show that tracks behind and leading to the vehicle indicate that the road was muddy and the vehicle had been driven from one side of the road to the other. There was a branch from a pine tree in the road behind the [761]*761vehicle and some wood was stuck in the left rear quarter panel. A branch was hung up under the frame of the car. Deputy Kovark was unable to determine the area of contact with the tree where the accident occurred.
Deputy Kovark’s report states that he determined that the vehicle was registered to . .. Keating or Allen Keating of Omaha, Nebraska. He looked inside the vehicle and observed a pair of shoes on the front floorboard and a brown purse and a coat on the front seat. Photographs were taken of the inside of the vehicle.
The Deputy’s report further states that he observed a set of footprints walking north on County Road 700 along the edge of the roadway. He followed the footprints north until they reached the pasture area where the body was found. The report states that [an] Investigator Mulbery pointed out that one of the footprints showed an imprint of a big toe.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

NEFF TOWING SERVICE v. US Fire Ins. Co.
652 N.W.2d 604 (Nebraska Supreme Court, 2002)
Krzycki v. Genoa National Bank
496 N.W.2d 916 (Nebraska Supreme Court, 1993)
In Re Estate of Krumwiede
647 N.W.2d 625 (Nebraska Supreme Court, 2002)
Finch v. Farmers Insurance Exchange
656 N.W.2d 262 (Nebraska Supreme Court, 2003)
Rapp v. Metropolitan Accident & Health Insurance
8 N.W.2d 692 (Nebraska Supreme Court, 1943)

Cite This Page — Counsel Stack

Bluebook (online)
660 N.W.2d 887, 11 Neb. Ct. App. 757, 2003 Neb. App. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keating-v-jc-penney-life-insurance-nebctapp-2003.