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Schwartz v. John Hancock Mutual Life Insurance Co.

Decided: July 31, 1967.

FRANK H. SCHWARTZ AND LOUISE SCHWARTZ, PLAINTIFFS,
v.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, DEFENDANT



Botter, J.s.c.

Botter

[96 NJSuper Page 522] Plaintiffs' 18-year-old son, Robert Schwartz, was killed when his automobile crashed at high speed while pursued by the police. Plaintiffs sue for the $10,000 accidental death benefit under an insurance policy on the life of their son. The jury before whom the case was tried was ordered to return a special verdict pursuant to R.R. 4:50-1. This opinion will determine what judgment should be entered on the special verdict. Also to be resolved are motions for judgment made by plaintiffs and defendant before the case was submitted to the jury. Decision was reserved on these motions under R.R. 4:51-2(a). The basic question is whether the death of an insured is "accidental" within the meaning of a triple indemnity life insurance policy if the insured voluntarily exposed himself to a high degree of danger by driving recklessly to escape apprehension.*fn* The insurance company also contends that recovery is barred by specific policy exclusions for death resulting from "intentionally self-inflicted injury" and "participation in an assault or a felony." In terms of the exposition of insurance law in New Jersey this case reviews old problems in a setting not previously dealt with in any reported decision.

On October 30, 1964 at about 6:30 P.M. Robert Schwartz left his home in Bogota, New Jersey. He was driving a 1959 white Mercury convertible. He was later seen with Ronald Ferretti at a candy store, and shortly after 7 P.M. they were seen driving out of a gasoline station. We know nothing further of their activities that evening until about 10:50 P.M., at which time the Schwartz car attracted the attention of Patrolman Liberati of the Orangeburg, New York Police Department. The car was going south on Route 303 at a high speed, and officer Liberati went in pursuit. Route 303 is a highway running generally in a north-south direction. It runs from Orangeburg, New York, to the New Jersey border, where it leads into Livingston Street in Northvale, New Jersey. Route 303 has two traffic lanes in each direction, separated by a double yellow center line. The speed limit is 50 miles per hour.

The chase was described in a way that suggests that Robert Schwartz took many chances, and so did his pursuer, but traffic was light and the road conditions good, and the young driver probably expected to escape without accident or injury. Patrolman Liberati testified that the pursuit covered approximately five miles. They traversed three intersections controlled by traffic lights, and the jury specifically found that the Schwartz car was driven at excessive speeds through two red lights. Patrolman Liberati testified that during the

five-mile run he did not encounter more than one other vehicle traveling south, although traffic was heavier going north. In its special verdict the jury found that the Schwartz car was driven at dangerous speeds, at times reaching 80 miles per hour. (The jury found that the car was not driven in excess of 90 miles per hour, as testified by the pursuing police and by a witness who observed the car shortly before it crashed.) The jury found that the Schwartz car was driven at times on the wrong side of the road and at times with the headlights off in an apparent effort to elude the police. Nevertheless, Patrolman Liberati testified that it was a clear night and he could see the Schwartz car even with its lights off.

Ultimately, they came upon a curve in the road which the Schwartz car failed to negotiate. Just north of the curve Route 303 has a downhill grade and it bends to the left in a wide sweep as it comes into Northvale. The Schwartz car went off the right hand side of the road, struck a pile of dirt, flipped over two times and landed upside down approximately 150 yards south of the state line.

Patrolman Vollmer of the Northvale Police Department was at the scene. He testified that although the speed limit was 50 miles per hour at that time, in his opinion a safe speed for negotiating the curve was 40 miles per hour. In summation to the jury plaintiffs' counsel urged that this downhill curve was an unexpected or unforeseen obstacle which the boy could not master. Apparently the jury agreed. The jury found that the driver of the car should have foreseen that serious injury or death was a highly probable result of the manner in which he drove his car. However, the jury also found that in the course of the drive which preceded the crash, considering all the circumstances, "something unforeseen, unusual and unexpected" occurred which caused the car to crash. The jury found that the driving was not "so obviously dangerous as would normally result in loss of life." The jury specifically found, in conclusion,

that Robert Schwartz died as the result of an "accidental" injury.

Defendant's insurance policy provides an accidental death benefit on proof that "death resulted solely from accidental bodily injury." Accidental death is defined in the policy as "death resulting directly and solely from * * * an accidental injury * * *." This ingenuous language has been troublesome in the past. Deciding what is an accident and what is an injury effected by accidental means, as distinguished from an accidental result of normal means, has caused the courts considerable difficulty. The history of the problem and most of our cases have been thoroughly explored in Linden Motor Freight Co., Inc. v. Travelers Ins. Co., 40 N.J. 511 (1963).

We start with the premise that insurance policy terms should be interpreted in their usual and popular sense to meet the reasonable expectations of policyholders, and any ambiguity should be resolved in favor of the insured. Gerhardt v. Continental Ins. Co., 48 N.J. 291, 297 (1966); Linden Motor Freight Co. Inc., supra, 40 N.J., at p. 525; Kievit v. Loyal Protective Life Ins. Co., 34 N.J. 475, 482 (1961); Korfin v. Continental Casualty Co., 5 N.J. 154, 158 (1950). It has been said that "accident" and "accidental" in their common or popular sense mean something unforeseen, unexpected, unusual -- a happening by chance, not according to the usual course of things. Linden, supra, at p. 522; Korfin, supra, at p. 158. Frequently it is said that death is not effected through accidental means if the actor should have foreseen that his conduct would probably result in death. Shields v. Prudential Ins. Co. of America, 6 N.J. 517, 523 (1951); see also Linden, supra, 40 N.J., at p. 536. Thus, if the injury which produces death is the natural and probable ...


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