Weidenburner, J.c.c. (temporarily assigned).
When Theodore Dinkowitz died on December 10, 1958, his life was insured by three policies issued by defendant, each of which provided for the payment of double benefits in the event of accidental death. Each policy provided for the payment of the increased benefits when death resulted from "bodily injuries effected solely through external, violent and accidental means." Defendant paid the face amount of each policy to the widow-beneficiary but has refused to pay the increased benefits on the ground that the cause of decedent's death was the negligence of a physician treating decedent for an illness, and that death from such cause is expressly excluded from the increased, accidental death benefit provisions of the policies by their exclusionary clauses. Plaintiff, who is the widow-beneficiary of the insured, instituted this action for the increased benefits on each of the policies, and defendant moves for summary judgment.
For the purposes of the motion only, the parties have stipulated that the insured's death resulted solely and exclusively from the negligence of the physician attending him at the time of his death; that the physician improperly and negligently diagnosed and treated the physical illness of the insured; and that had the insured's physical illness been properly diagnosed and treated, medical authorities would agree that it is probable that the insured would have survived and lived for a substantial length of time thereafter.
The stipulated facts frame an issue of law, and the case is, therefore, a proper one for disposition by a motion for summary judgment. Felbrant v. Able, 80 N.J. Super. 587 (App. Div. 1963).
Two of the three insurance policies involved contain a boldtype paragraph in the increased benefits clause entitled "Conditions and Exceptions," which reads as follows:
"No such benefit shall be payable if such death results * * * directly or indirectly from bodily or mental infirmity or disease in any form, or medical or surgical treatment therefor."
The increased benefits clause of the third policy includes a paragraph designated "Exclusions and Reductions," which reads, in pertinent part, as follows:
"The Accidental Death and Dismemberment Insurance does not cover any loss which results from or is caused, directly or indirectly, by * * * disease or bodily or mental infirmity, or medical or surgical treatment thereof, * * *."
The decisive question of whether the stated exclusionary clauses, which are common to most life and accident insurance policies containing provisions for increased benefits in the event of accidental death, exempt the insuror from the payment of the increased benefits if death results from medical malpractice, appears to be one of novel impression in New Jersey. Its resolution, therefore, must depend upon the application of the fundamental principles of construction of insuring agreements to the facts of the instant case, with the aid of such illumination as decisions in other jurisdictions may provide.
In Kievit v. Loyal Protective Life Ins. Co., 34 N.J. 475 (1961), it is said
"When members of the public purchase policies of insurance they are entitled to the broad measure of protection necessary to fullfill their reasonable expectations. They should not be subjected to technical encumbrances or to hidden pitfalls and their policies should be ...