On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Matthews, Kole and Milmed. Kole, J.A.D. (dissenting).
The judgment under review is affirmed substantially for the reasons expressed by Judge Gaynor in his written opinion of September 9, 1977.
Additionally, see Gilmour v. Security Mutual Casualty Company , 348 Mass. 785, 204 N.E. 2d 502 (Sup.Jud.Ct.1965); Goldstein v. Paul Revere Life Insurance Company , 164 So. 2d 576 (Fla.Dist.Ct. of App.1964), cert. den. 170 So. 2d 587 (Fla.1964); Smith v. Continental Casualty Company , 203 A.2d 168 (D.C.Ct. of App.1964).
KOLE, J.A.D. (dissenting).
I am constrained to dissent.
In my view the opinion of the court below, which the majority affirms, fails to take into account the distinction, which has been adopted in strong dicta by our Supreme Court, between an
"accidental means" and "accidental result" policy.*fn1 The Supreme Court has indicated that a policy allowing compensation for "accidental bodily injury" is an "accidental result" policy.
Moreover, an insured purchasing a policy with the "accidental bodily injury" language in it may be said, as a matter of law, reasonably to have expected that a 44-year-old man, in the patently healthy condition of this insured prior to the incident here involved, would be compensated under this type of policy for a totally unexpected death that resulted from his voluntary overexertion through strenuous exercise. By affirming the judgment below the majority opinion effectively has obliterated the distinction between an accidental means and an accidental result policy in this area of the law and, as I see it, has adopted the converse of Justice Cardozo's suggested rule in his dissent in the Landress case, infra , at least in heart cases. Thus, in effect, the majority holds that any accidental benefit policy, irrespective of whether the language therein is means- or result-oriented, bars recovery for this type of unexpected heart death simply because it is brought about by voluntary excessive exertion of an overtly healthy man with a latent unknown heart or vascular disease.
Obviously, there are gradations of factual patterns, and not every insured who suffered a myocardial infarction could recover under these policies. The matter would depend upon such things as the age, the apparent and known or unknown physical condition of the insured, and other factors, which will vary from case to case. Moreover, the issue of the reasonable expectation
of an insured may involve the resolution of a question of fact, rather than law. See Perrine v. Prudential Ins. Co. of America , 56 N.J. 120 (1970).
In her complaint plaintiff alleged that, as beneficiary under four life insurance policies issued by defendant Penn Mutual and one policy issued by defendant Prudential, she was entitled to accidental death benefits as the result of her husband's fatal heart attack.
Defendants denied liability, principally on the ground that no coverage was intended for death resulting from voluntary exertion as opposed to some unforeseen and unexpected "accident." The evidence was undisputed that decedent's death was caused by acute myocardial infarction following his voluntary participation in a vigorous basketball game. Plaintiff conceded below, as she does on appeal, that the death was not, therefore, caused by accident. Her position has been, however, that the policies herein insured not only against injuries from accidental causes , but also against accidental results , regardless of the cause. Since the heart attack here is an accidental result, she reasons, defendants are liable.
The facts concerning the circumstances and cause of her husband's death were essentially undisputed. At the time of his death he was a 44-year-old comptroller for the Singer Company. On Saturday morning, May 4, 1974, he went to his office to tender his resignation, apparently after having been unhappy in his job for some time. He had already located a new job in Florida.
Upon returning home that afternoon he worked in his yard for about three hours. He and his wife then attended a dinner party at a friend's house. At about 9 p.m. a "light dinner" consisting of bouillabaisse was served. After dinner, at about 11 p.m., decedent and two other men played a vigorous 30-45-minute game of basketball against three teenagers. The host had a basketball court at the base of a slight hill on the side of his house. When the game was over decedent walked up the incline
to the house. He then began to moan, his face became white and he slumped into his chair.
Plaintiff, decedent's wife, noticed that when decedent returned to the house he was sweating "profusely," had "lost his color" and was "very clammy." He was dead on arrival at the hospital at 12:03 a.m., May 5.
According to plaintiff, decedent enjoyed generally good health and had never experienced heart problems before. Nor had she observed anything unusual on the day in question. Decedent was very active athletically throughout his life, and at the time of his death he was active in golf, tennis, volleyball and swimming.
The death certificate indicated the cause of death as "acute myocardial infarction." The only other medical evidence was the testimony of Dr. Goodman, a specialist in internal medicine and a subspecialist in heart and lung disease, who testified on behalf of plaintiff. Dr. Goodman had never examined decedent. On the basis of the death certificate and a hypothetical question incorporating the circumstances of the death, the doctor stated that the cause of death was acute myocardial infarction. He described the mechanics of decedent's death as follows: All males have a "condition" known as coronary arteriosclerosis, which develops at about the age of 20 and progresses with age. This "condition" does not become a "disease" until certain symptoms develop. In the case of decedent the combination of the dinner, the basketball game and the walk up the incline caused the "condition" to become a "disease" resulting in the myocardial infarction. Decedent's sweating and paleness just before his death were the symptoms of this process. The doctor further stated that death would not have occurred when it did but for decedent's strenuous activity after dinner.
The testimony for the defense was limited to that of decedent's secretary and supervisor, both of whom stated that on the day before and the morning of his death, decedent's lips were blue. While the ...