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July 8, 1980

Agnes OLDRING, Plaintiff,
METROPOLITAN LIFE INSURANCE COMPANY, a corporation of the State of New York, Defendant.

The opinion of the court was delivered by: COHEN

In this contract action, plaintiff seeks recovery of accidental death benefits under an insurance policy issued by the defendant upon the life of her son, Rube Oldring, III. The defendant has refused to pay the benefits on the ground that the insured's death was not an accidental death within the terms and provisions of the policy.

Trial was held without a jury and the Court, having considered the testimony of all witnesses, the exhibits in evidence and the arguments of counsel, finds that coverage under the double indemnity provision of the insured's policy does extend to the circumstances of the insured's death. This opinion is filed in lieu of findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a).

 The facts, essentially undisputed, are as follows: The insured died at the age of twenty-two on August 10, 1978 as a result of a self-inflicted gunshot wound to the head. He had no history of physical or mental illness and, in fact, was consistently described by witnesses as a stable, "happy-go-lucky" young man. He had been married just five and one-half months at the time of his death and there was no evidence suggesting that the couple had any marital or financial difficulties. On the contrary, all evidence indicated that the decedent and his wife were looking forward to a very bright future together. The decedent had obtained a two-year degree in law enforcement and had been notified, just prior to his death, that he had passed the State Police examination. According to his father's testimony, the decedent was "thrilled" at the results of the examination since his life-long career goal had been to be a police officer. It is readily apparent that he had everything to live for and was standing on the threshold of life's grand adventures.

 With respect to the insured's experience with guns, evidence established that he was both knowledgeable about their use and accustomed to handling them. He had worked part-time for one and one-half years as a special policeman on the Upper Deerfield Township Police Department, and normally carried a weapon with him both on and off duty. Moreover, the decedent had qualified as a sharpshooter during the summer of 1978. And, most relevant to the case at bar, the decedent had a history of playing or teasing with weapons, including pointing pistols believed to be unloaded at his head and pulling the trigger in an effort to frighten other persons.

 On August 10, 1978, the day of his death, the decedent and his wife were preparing to leave for a vacation. After having his car checked, he and his wife had lunch and then proceeded to perform some miscellaneous errands. They were preparing to go to the home of the decedent's mother-in-law to borrow luggage for the trip, when the decedent came out of a room off the kitchen with a gun, pointed to his head. The decedent's wife told him to stop playing with the gun, that they had to get going. He then pulled the trigger and the gun clicked. Quickly following that, while his wife's head was turned away, the decedent pulled the trigger again, this time setting the gun off. Upon seeing blood on the floor, the decedent's wife fled to her parents' home and the police were called.

 The decedent was taken to the hospital where he died the same day of a head wound. An investigation revealed that the decedent had shot himself with a .38 snub nose revolver. The weapon was found next to his body with one empty shell in the chamber. Four other full shells were found on the decedent's dresser. Expert testimony disclosed that the shell casing found in the gun had been used before, causing it to stick inside the chamber.

 The defendant insurance company conceded at trial that the insured's death was not the result of a suicide attempt. We agree and conclude that at the time of the gun's firing, the deceased had no intention of taking his own life and, instead fired the weapon with the mistaken belief that it was unloaded.

 The decedent was insured under a policy issued by the defendant, Metropolitan Life Insurance Company. The single indemnity life insurance benefits under the policy have already been paid to the beneficiary, Agnes Oldring, the plaintiff in this action, and there is no dispute concerning those benefits. There is a controversy, however, concerning plaintiff's entitlement to benefits under the double indemnity provision of the policy which provides for an accidental death benefit on proof that "the death of the insured occurred, . . . as the result, directly and independently of all other causes, of bodily injury caused solely by external, violent, and accidental means." (emphasis added.)

 The main thrust of defendant's argument, here, is that a death, even if unintentional, which results from the voluntary act of placing a gun to one's head and pulling the trigger, is not a death caused "solely by accidental means." Instead, the defendant contends such a death is a "natural and probable consequence" of the actor's conduct; further, that recovery is barred by the insured's assumption of risk and by a specific policy exclusion for death which results from "committing an assault."

 A number of New Jersey cases have dealt with the interpretation of insurance policies containing "accidental means" provisions. And though our research, and that of counsel, does not disclose any New Jersey case which resembles the factual situation here, certain rules of general applicability have emerged from the courts' opinions.

  At the outset, we should note that New Jersey makes a distinction between insurance policies which insure against accidental death, and a death caused by accidental means. See Perrine v. Prudential Insurance Company of America, 56 N.J. 120, 124, 265 A.2d 521 (1970) (refusing to follow the approach of the Cardozo dissent in Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 498, 54 S. Ct. 461, 463, 78 L. Ed. 934 (1934) that "an accidental result almost automatically imports that the means were accidental"). Specifically, the courts hold that coverage in policies which insure against death from accidental means is intended only where the injury is the result of some unforeseen or unexpected event:

"(I)f a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but . . . if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means."

 Linden Motor Freight Co., Inc. v. Travelers Insurance Co., 40 N.J. 511, 515, 193 A.2d 217, 219 (1963) (quoting United States Mutual Accident Ass'n v. Barry, 131 U.S. 100, 9 S. Ct. 755, 33 L. Ed. 60 (1889)).

 In addition to the element of unforeseeability, this Court must also consider "the reasonable expectations of the average policy holder." Perrine, 56 N.J. at 125, 265 A.2d at 524; Harris v. John Hancock Mutual Life Insurance Co., 41 N.J. 565, 568, 197 A.2d 863 (1964); Linden, 40 N.J. at 511, 193 A.2d 217; Schwartz v. John Hancock Mutual Life Insurance Co., 96 N.J.Super. 520, 525, 233 A.2d 416 (Law Div.1967), aff'd, 99 N.J.Super. 223, 239 A.2d 248 (App.Div.), cert. denied, 51 N.J. 393, 241 A.2d 11 (1968). In Linden, the insured suffered a fatal heart attack after lifting cartons in the performance of his regular duties. The beneficiary sought to recover double indemnity benefits under a provision of the policy conditioning payment upon the ...

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