Moore v. Union Fidelity Life Insurance

MARTIN, Judge. At the outset, we recognize and adhere to the general rule that in an action to recover proceeds under a policy insuring against death by accident or accidental means, the burden is upon the plaintiff to show that the insured’s death resulted from accident or accidental means within the terms of the policy. Barnes v. Insurance Co., 271 N.C. 217, 155 S.E. 2d 492 (1967); Warren v. Insurance Co., 215 N.C. 402, 2 S.E. 2d 17 (1939). It is also well settled law in this jurisdiction that where the plaintiff beneficiary offers evidence tending to show that insured met his death by unexplained, external violence, a' presumption arises that the death resulted from accident — thus, making out a prima facie case of coverage entitling plaintiff to go to the jury. Barnes v. Insurance Co., supra; 2 Stansbury’s N.C. Evidence § 224 (Brandis Rev. 1973); cf. Slaughter v. Insurance Co., 250 N.C. 265, 108 S.E. 2d 438 (1959). However, if the plaintiff fails to show coverage, or if plaintiff’s evidence makes out a case of coverage and at the same time establishes a defense excluding the death from coverage, a directed verdict against plaintiff is proper. Slaughter v. Insurance Co., supra. The question before this Court is whether, in light of the principles stated above, the trial court’s allowance of defendant’s motion for directed verdict was proper. We are of the opinion that it was not. In support of the judgment entered in its favor, defendant relies on the Slaughter case where the driver of a taxicab was found, shot to death, 22 miles from his cab with his money and [72] pistol missing. Notwithstanding the evidence clearly established death by external and violent means, the Court affirmed a nonsuit for the defendant insurance company holding that plaintiff’s own evidence showed an intentional, not an accidental killing and thus, not only showed a lack of coverage, but also established a defense to coverage — murder. Regarding the plaintiff’s evidence in the Slaughter case, the Court said, “All the evidence points to an intentional killing with robbery as the motive. This evidence . . . leaves no basis for a finding of death as the result of accident as the term ‘accident’ is generally understood.” (Emphasis added.) Viewing plaintiff’s evidence in the instant case, we cannot say that the only reasonable inference to be drawn therefrom establishes defendant’s defense of suicide as a matter of law. Unlike the strong evidence in the Slaughter case, the evidence in the instant case neither establishes nor suggests an explanation for the insured’s death. We do not know why the gun discharged in proximity to the deceased’s head while he was in, front of his car on a dirt road — the explanation could be suicide; but certainly the fact that the gun discharged at close range does not exclude the possibility of accident. See Barnes v. Insurance Co., supra. Accordingly, plaintiff’s showing of unexplained death by violence is sufficient to take the case to the jury where the burden of the issue of death by accidental means remains upon the plaintiff. Barnes v. Insurance Co., supra; Warren v. Insurance Co., supra. The trial court also held that the insurance policy together with the application was not ambiguous, and that the amount in controversy in addition to the refund, was $5,000. From our careful examination of the policy, application and riders, we find the trial court was correct in this holding. Affirmed in part; reversed in part. Chief Judge BROCK concurs in the result. Judge CLARK dissents.