USA LIFE ONE INS. CO. OF IND. v. Nuckolls

663 N.E.2d 541, 1996 Ind. App. LEXIS 413

• Court: Indiana Court of Appeals
• Decided: April 10, 1996
• Docket: 11A04-9506-CV-229
• Status: Published

Opinions

OPINION

SULLIVAN, Judge.

Upon interlocutory appeal, USA Life One Insurance Company of Indiana (USA) challenges the denial of its summary judgment motion in an action brought against USA by Marshall and Ada Nuckolls (Nuckolls) regarding a life insurance policy issued to the Nuckolls' deceased son, Robert L. Nuckolls. USA presents the following restated issues for review:

I. Did the trial court err in determining that the accidental death rider of the life insurance policy did not exclude coverage for Robert Nuckolls' death?

II. Did the trial court err in determining that punitive damages are not unavailable in the Nuckolls action against USA?

We reverse.

The undisputed facts are that in the early morning hours of January 13, 1991, Gary Miller discovered a car on fire on a rural Clay County road and summoned the fire department. After the fire was extinguished, a body was discovered inside the car and was subsequently identified as that of Robert Nuckolls. Following an autopsy, a coroner's report was filed classifying the death as accidental. With regard to the cause of death, the report stated:

"Dr. [Roland] Kohr said the man had died from Carbon Monoxide Poisoning due to breathing the fumes from the early part of a smoldering fire within the car's interior. Police and fire investigators theorized that Nuckolls, a known smoker of cigarettes, had fallen asleep while his car was parked on the road, and that the burning cigarette had started the fire. The victim's blood alcohol content tested at .294 percent, nearly 3 times the legal level for vehicle operators, which is .10 percent. Nuckoll's [sic] degree of intoxication undoubtedly contributed to his death." Record at 51.

USA had issued a life insurance policy naming Robert as the insured and Marshall and Ada Nuckolls as beneficiaries. Along with basic life insurance coverage, Robert also purchased a policy rider providing additional benefits in the amount of $10,000 in the event of accidental death. On January 29, 1991, the Nuckolls filed a beneficiaries' claim statement. USA admitted liability for the basic life insurance benefit but denied coverage on the accidental death benefit. In denying the accidental death benefit, USA noted that the insurance policy contained the following provision:

"EXCEPTIONS. The gccidental death benefit is not payable for death resulting directly or indirectly from:

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(g) taking of poison or gas, whether voluntarily or involuntarily, accidental or otherwise, except with direct relation to the Insured's occupation;"

Record at 14. Although the coroner's report stated that carbon monoxide poisoning was the cause of death, it also concluded that Robert's intoxication was a contributing factor. USA denied coverage of the accidental death benefit on the ground that Robert's death was caused by "the combined effect of two poisons, carbon monoxide and ethanol (grain alcohol)." Appellant's Brief at 8.

On January 8, 1998, Nuckolls filed a complaint for damages against USA alleging breach of contract for wrongful failure to pay the accidental death benefit, seeking compensatory damages. On December 30, 1998, Nuckolls filed an amended complaint, adding a claim for punitive damages based upon the allegation that USA failed to deal with Nuc-kolls in good faith. On April 29, 1994, USA filed a motion for summary judgment, claiming that there existed no genuine issue as to the material fact that Robert's death was caused by a poison or gas and that such cause of death was excluded by the terms of the accidental death benefit rider. On May 4, 1995, the trial court denied USA's summary judgment motion. On June 8, 1995, the trial court certified its May 4 ruling for interlocutory appeal.

USA contends that the trial court erred in denying its motion for summary judgment because there exists no genuine issue of material fact regarding the dispositive issues of the case, ie., the cause of Robert's death and the subject of the exelusion set out in subsection (g) of the "Exceptions" section of the Additional Benefit Provision for Accidental Death rider of Robert's life insurance policy.

We are called upon to determine whether the circumstances of Robert's death fit within the description contained in subsection (g) of the Exceptions provision of the Accidental Death rider. As noted, USA contends that the matter is settled by reference to the portion of the coroner's report which states carbon monoxide poisoning as the cause of death and also lists Robert's high blood-aleohol content as a contributing factor. USA argues that carbon monoxide and grain aleohol are both poisons within the meaning of subsection (g), thereby constituting exceptions to the coverage extended in the Accidental Death rider. The Nuckolls do not argue that carbon monoxide and grain alcohol are not poisons within the meaning of subsection (g), but rather that there remains a question of fact as to whether Robert died as a result of "taking" carbon monoxide and grain alcohol, as that term is used in subsection (g).¹ Therefore, the focus of our inquiry is the meaning of "taking" as contemplated in the contract for accidental benefits We have previously defined our task when confronted with questions regarding the meaning of exclusionary provisions in an insurance contract.

"The general rule in interpreting insurance contracts, and all other contracts of adhesion, is that, in the normal case, the court must simply apply the plain ordinary meaning of the contract language. In cases of ambiguity, where more than one reasonable interpretation is possible, and especially where a coverage exclusion is involved then the court must adopt the interpretation most favorable to the insured." Comprehensive Health Ins. Ass'n v. Dye (1988) Ind.App., 531 N.E.2d 505, 507.

In the instant case, the insurance policy does not define "taking". However, Nuckolls concedes that "taking" includes "to ingest". Appellee's Brief at 2. It is clear and without any suggestion of doubt that Robert "ingested", i.e., breathed, the carbon monoxide gas. The only remaining question is whether the word "ingest" necessarily means that the ingestion had to be intentional or voluntary. Although this question is not presented by Nuckolls, the intentional/voluntary premise is suggested by the dissent, albeit without citation of authority.

Our research has disclosed no case in Indiana since 1926 dealing with "poison" and with a "voluntary" vs. "involuntary" consideration. Miller v. Fort Wayne Mercantile Accident Ass'n (1926) 87 Ind.App. 561, 153 N.E. 427. In Miller, decedent died from accidentally swallowing calbolic acid, thinking it to be medicine for his cold. The policy exelud-ed coverage for "death caused ... or resulting from ... injury (fatal or otherwise) resulting from any poison ... or from anything accidentally or otherwise taken, administered, or inhaled." 87 Ind.App. at 562, 153 N.E. at 427.

The decedent's estate argued that "there must be a conscious taking of the poison ...". 87 Ind.App. at 563, 153 N.E. at 428. The court discussed authorities upon both sides of the voluntary-involuntary issue, but held that there was no coverage because death resulted from poison. The holding did not rest upon any distinction between voluntary and involuntary ingestion, and stated that although the death was accidental, it resulted from poison and was not covered.

The court made a somewhat eryptic comment, however:

"It would seem that the insurance contract in the instant case was drawn with the express purpose of excluding liability for death caused by the voluntary inhalation of gas, and to cover death when caused by involuntary inhalation." 87 Ind.App. at 570, 153 N.E. at 430.

The comment made, gratuitously and curiously, by the court is totally outside the context of the case which was before the court, and the decision does not point to any policy provision relative to inhalation of gas. The only mention of that type of coverage was in the Accident Association Constitution which, contrary to the eryptic comment, said:

"[The Association is exempt from liability for] injuries arising from voluntary or involuntary, conscious or unconscious inhalation of any gas, anesthetic, fumes or vapor; [or] from anything accidentally or otherwise taken, administered, absorbed, or inhaled." 87 Ind.App. at 563, 153 N.E. at 428 (internal quotation marks omitted).

Absent some provision in Miller's insurance contract stating that involuntary inhalation is covered, there is absolutely no basis for the latter statement. In this regard, however, with respect to the "poison" question, the court held that any arguable inconsistency between the Constitution and the insurance contract is governed by the contract.

The principles governing application of contract terms are well established. The fact that a term is not defined does not render it ambiguous. Harden v. Monroe Guaranty Ins. Co. (1993) Ind.App., 626 N.E.2d 814, trans. denied. An unambiguous policy must be enforced according to its terms, including terms limiting lability. Pennington v. American Family Ins. Group (1993) Ind.App., 626 N.E.2d 461. An insurer is free to limit coverage if that limitation is clearly expressed. Delaplane v. Francis (1994) Ind.App., 636 N.E.2d 169, trans. denied. Courts are not free to ignore the plain wording of an insurance contract. Losiniecki v. American States Ins. Co. (1993) Ind.App., 610 N.E.2d 878.

There is no ambiguity in the exclusion provision here involved. As conceded by Nuckolls, the word "take" has a synonym-"ingest". There can be no doubt that Robert "ingested" the carbon monoxide which caused his death, even if his state of intoxication was a contributing factor. There is also no doubt that the policy provision excludes such ingestion "whether voluntarily or involuntarily, accidental or otherwise". The clear language of the policy precludes any gratuitous limiting or contrary interpretation. Without the existence of an ambiguity, to write out of the contract the words "or involuntarily" is to rewrite the contract made by the parties. Firemen's Ins. Co. Of Newark N.J. v. Temple Laundry Co. (1924) 195 Ind. 194, 144 N.E. 838. The principle enun-clated in the last century remains applicable today and to this case: "This result may work a hardship to the [decedent's survivors], but courts cannot make contracts for parties." Pacific Mutual Ins. Co. of California v. Howell (1895) 13 Ind.App. 519, 521, 41 N.E. 968, 968.

The exelusion clause is clear and unambiguous. It provides that accidental benefits will not be paid if death results from the ingestion of carbon monoxide gas "whether voluntarily or involuntarily, accidental or otherwise ...". Whether Robert passed out in an intoxicated state while smoking a cigarette and could not help ingesting the carbon monoxide fumes, is not relevant. Even if he ingested the fumes involuntarily and accidentally, the policy does not cover the loss.

Because we reverse the denial of USA's motion for summary judgment it is unnecessary to decide the issue presented with respect to the availability of punitive damages against USA.

The judgment is reversed and the cause is remanded with instructions to grant USA's motion for summary judgment.

SHARPNACK, C.J., concurs. FRIEDLANDER, J., dissents with separate opinion.

1 . In their appellate brief, the Nuckolls note not only that the insurance contract fails to define "taking", but also that it does not define "poison".