Valley National Bank v. J. C. Penney Insurance

628 P.2d 991, 129 Ariz. 108, 1981 Ariz. App. LEXIS 410
CourtCourt of Appeals of Arizona
DecidedMay 14, 1981
DocketNo. 1 CA-CIV 4713
StatusPublished
Cited by1 cases

This text of 628 P.2d 991 (Valley National Bank v. J. C. Penney Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Valley National Bank v. J. C. Penney Insurance, 628 P.2d 991, 129 Ariz. 108, 1981 Ariz. App. LEXIS 410 (Ark. Ct. App. 1981).

Opinion

OPINION

WREN, Chief Judge.

At issue on this appeal from a suit brought to recover “double indemnity” insurance benefits is the propriety of a grant of summary judgment in favor of J. C. Penney Insurance Company, Guardsman Life Insurance Company and Old Republic Life Insurance Company (appellees) against the Valley National Bank of Arizona, as personal representative of the estate of Sharon G. Seay (appellant).

On June 14, 1975, Frank 0. Seay, Jr., his wife Sharon G. Seay, and step-daughter, Sheri Lynn Seay, departed Phoenix, Arizona, in their travel camper for what was scheduled to be a two-week camping trip in Baja California, Mexico. When the Seays failed to return to Phoenix within that time, a search effort was conducted. The search failed to turn up any trace of the missing trio. In December of 1975, however, two persons hiking in Baja happened upon a campsite which included a makeshift shelter made from a sleeping bag, a camera with film, several fired bullet casings, and parts of a human skeleton. The skeletal remains were brought into this country and taken to the San Diego County Coroner, where they were determined to be those of Frank Seay, Jr. The coroner’s report indicated that the cause of death was “undeterminable”. This discovery prompted another search which again failed to reveal any sign of the travel camper or of Sharon or Sheri Seay. Their whereabouts remain unknown and they have since been declared legally dead.

At the time of his death, Frank Seay, Jr. had life insurance policies in force with appellees J. C. Penney, Guardsman and Old Republic,1 which provided death benefits of $5,000 each for the Guardsman and Old Republic policies and $10,000 for the J. C. Penney policy. In addition, each of the policies provided for double indemnity in the event of accidental death. Appellees tendered payment of the death benefits but refused payment under the double indemnity provisions, contending that appellant had failed to provide any evidence of “accidental” death.

Appellant filed suit on November 22,1977 to compel payment of the additional benefits, along with attorney’s fees and costs. Appellees filed a motion for summary judgment, which the trial court granted on July 5, 1978. Appellant’s new trial motion was denied, and appellees’ motion for an award of attorney’s fees pursuant to A.R.S. § 12-341.01 was granted in the amount of $5,639.60. Appellant appeals the summary judgment and award of attorney’s fees. We reverse.

The double indemnity provisions of the insurance policies are activated only if the insured’s death was accidental.2 Under the terms of the J.C. Penney and Old Republic policies the insured must suffer an injury which directly results in death. Injury is defined as “bodily injury caused by an accident.” In both of these policies, the insurer is accorded the right to perform an autopsy to verify that an accidental injury did in fact cause the insured’s death. Seay’s [110]*110Guardsman policy is similar in its requirement that accidental death benefits will be paid if the insured’s death is the result of accidental bodily injury independent of other causes. Under two of the policies, Guardsman and Old Republic, “due proof” is required. Further, under the Guardsman policy, the injury must be evidenced by visible damage to the exterior of the body except in the instance of drowning or internal injuries and these must be verified by an autopsy.3

Under the summary judgment disposition then, our seminal inquiry is: Taking the evidence and inferences presented in a light most favorable to appellant, does a genuine issue of material fact exist as to whether Seay’s death was accidental? We think it is beyond question that it does.

The rather bizarre circumstances of Seay’s death have already been set forth. It is uncontroverted that no one, not even the coroner’s office in San Diego was able to resolve the fact question as to the cause of death. Both sides agree, and the law is well established, that appellant has the burden of proving that death resulted from accidental rather than natural causes, within the coverage of and as defined by the clauses of the insurance policies. As was stated in New York Life Insurance Co. v. Greber, 55 Ariz. 261, 100 P.2d 987 (1940):

When double indemnity is claimed for an accidental death under a policy like that involved herein, it is incumbent upon the beneficiary to establish affirmatively and by a reasonable preponderance of the evidence that the death of the insured resulted from the specific cause of death set forth in the double indemnity clause. (Emphasis added). Id. at 262, 100 P.2d at 987.

Watkins v. Underwriters at Lloyds, London, 107 Ariz. 56, 481 P.2d 849 (1971); New York Life Insurance Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948 (1938); Young v. Pacific Mutual Life Insurance Company of California, 40 Ariz. 10, 9 P.2d 191 (1932); 21 J. Appleman, Insurance Law and Practice § 12142. At the summary judgment state of the proceedings, however, this burden is simply to raise a genuine issue of material fact, not to test the sufficiency of the evidence. Mitchell v. Mitchell, 12 N.C.App. 54, 182 S.E.2d 627 (1971). Moreover, as was noted in Northern Contracting Company v. Allis-Chalmers Corporation, 117 Ariz. 374, 573 P.2d 65 (1977): “Even if there is no factual dispute, where possible inferences to be drawn from the circumstances are conflicting, a summary disposition is unwarranted.” Id. at 376, 573 P.2d at 67. Executive Towers v. Leonard, 7 Ariz.App. 331, 439 P.2d 303 (1968).

[111]*111Appellees do not dispute the authorities as to multiple inferences to be drawn from undisputed evidence. Rather, they argue that the trial court correctly granted summary judgment since appellant failed to present any evidence whatsoever that Seay’s death resulted from accidental rather than natural causes. They assert that the circumstances here show equal support for opposing conclusions, since the facts are totally inconclusive as to cause of death, and therefore a court or jury could only speculate on the question. In support of this argument they point out that the only evidence brought forward by appellant was that Frank Seay was in good health when he left for Mexico. They contend, however, that this evidence was too remote in time to be of any use, since it consisted of medical reports dated approximately three years prior to his death, and further, that such evidence would be insufficient to raise an inference in any event.

Additionally, appellees cite to various cases holding that, in the absence of evidence to the contrary, death is presumed to be the result of natural causes. Continental Assurance Co. v. Rothell, 227 Ga.

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628 P.2d 991, 129 Ariz. 108, 1981 Ariz. App. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valley-national-bank-v-j-c-penney-insurance-arizctapp-1981.