Nash v. Prudential Insurance

Opinion

Plaintiff Ramona Nash brought this action to recover $50,000 in benefits payable by the terms of a group accident insurance policy issued by defendant The Prudential Insurance Company to the California Institute of Technology, the employer of plaintiff’s husband, Leroy W. Nash. Nash was insured under the policy and died June 23, 1968, in the ocean near Catalina Island. Plaintiff beneficiary contended at the jury trial that Nash met his death by accident. Defendant attributed the death to disease, having pleaded that it was not liable for the loss because death caused by disease was excluded by the policy’s terms. The jury returned a verdict for the defendant. Plaintiff has appealed the judgment.

Our factual recital contains, as it must, the evidence most favorable to the defendant insurer. (6 Witkin, Part I, Cal. Procedure (2d ed. 1971) Appeal, §§ 248, 249, pp. 4240-4241.)

On June 23, 1968, the insured, a tall, heavy, 45-year-old man, boarded a 79-foot chartered yacht, the Te Amo, at Long Beach Marina for a day’s excursion to Catalina Island. He was accompanied by his wife (the plaintiff), and approximately 30 other persons. The party left the mainland about 7 a.m. While at sea, about 10:30 a.m., Nash complained of feeling queasy. After lying down for a time, he had something to eat and rejoined his wife and friends, apparently feeling well. A bar had been set up on board and Nash had some drinks. At about 2:30 p.m., the yacht

An autopsy was performed. The death certificate, signed by Dr. William Arterberry, the deputy coroner who had conducted the autopsy, described the cause of death as occlusive coronary atherosclerosis with thrombosis. Dr. Arterberry testified at trial that his examination revealed that the deceased had had an unusually enlarged, diseased heart and severe coronary artery disease. The coronary artery disease was evidenced by the “patchy” narrowing (up to 80 percent) of all three major coronary vessels, a condition known as “triple vessel disease.” The pathologist was of the opinion that the “severe occlusive atheromatous changes” he observed had been developing for many years. The specific cause of death was a clot which had closed the right coronary artery of the heart.

Medical records of Nash’s personal physician, Dr. Novak, disclosed that Nash had suffered from, and had been treated for, hypertension, or high blood pressure, in 1963. Evidence was admitted, over plaintiff’s objection, that because of this, the deceased had been denied life insurance on two occasions since 1963.

The group policy at issue herein provided for the payment of benefits if the insured “sustains accidental bodily injuries and . . . suffers the loss of life ... as a direct result of such injuries and independently of all other causes.” Expressly excluded from coverage was loss “(b) directly or indirectly from bodily or mental infirmity or disease or medical or surgical treatment thereof.”

Defendant Prudential offered the testimony of an expert cardiologist, Dr. Travis Winsor, who had never personally examined the deceased. He

The opinions offered by Dr. Winsor, and presumably accepted by the jury, were in total conflict with those expressed by the plaintiff’s medical expert, an internist, Dr. Miley, who attributed Nash’s mid-morning discomfort to seasickness, and theorized that Nash, having accidentally fallen from the railing, experienced sufficient stress as the result of the fall to cause the rupture of a small blood vessel, in turn leading to the formation of the fatal clot.

Plaintiff attacks the sufficiency of the evidence supporting the judgment, while recognizing that appellate review of the judgment is limited to a determination of whether the record before us contains substantial evidence in support of the judgment. (See 6 Witkin, cited supra.) The testimony of expert witnesses, based on properly admitted evidence or properly framed hypothetical questions, constitutes evidence subject to the same standard of review. (Ideal Packing Co. v. Brice, 132 Cal.App.2d 582 [ 282 P.2d 957 ]; Huntoon v. Hurley, 137 Cal.App.2d 33 [ 290 P.2d 14 ]; Daly v. Wallace, 234 Cal.App.2d 689 [ 44 Cal.Rptr. 642 ].) Plaintiff

The trial court instructed the jury that “The existence of a pre-existing disease or infirmity will not relieve the defendant from liability in this case if you find that the accident was the proximate cause of the death of LeRoy Nash. Plaintiff may recover even if the said LeRoy Nash had a disease or infirmity which contributed as a cause of his death if you find there was an accident which set in progress a chain of events which caused death.” (Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305 [ 163 P.2d 689 ]; Slobojan v. Western Travelers Life Ins. Co., 70 Cal.2d 432

In Zuckerman v. Underwriters at Lloyd’s, 42 Cal.2d 460 , at page 466 [ 267 P.2d 777 ], the policy covered bodily injury caused by accident “solely and independently of other cause . . . .” The trial court gave a jury instruction which began as follows: “ ‘Plaintiffs have the burden of proving by a preponderance of the evidence that the death of George H. Francis was not directly or indirectly caused or contributed to by intentional self-injury, disease or natural causes. Futhermore plaintiffs may not recover if the evidence affirmatively shows that intentional self-injury, disease or natural causes caused or contributed to the death of the insured directly or indirectly.’” (Fn. p. 467). The Supreme Court said of this instruction: “The first two sentences of the instruction unduly stress the significance of any contribution to the death of Francis by preexisting disease or intentional self-injury. To that extent the instruction is inconsistent with the rule on causation as laid down in the Brooks case, and as stated to the jurors in several other instructions.”

The court decided that, since that instruction had concluded with an admonition to consider all of the instructions' as a whole, and since there had been another instruction containing the Brooks “chain of events” concept of proximate cause, the jury would be assumed to have applied the law properly.

In the case before us a review of the instructions as a whole offers no such assurance that the jury understood and applied the law correctly.

The instruction first given on burden of proof incorporated the Brooks rule on causation. The instruction given later did not, except by the general admonition to consider all instructions together. The second instruction (see fn. 2, supra), which was requested by defendant and given by the court in modified form, says the plaintiff must prove that an accidental injury was the proximate cause of death “and not bodily or mental infirmity or disease.”

This statement is literally true in the sense that where accident is “the proximate, prime or moving cause,” then disease is not “the proximate, prime or moving cause.” But a layman, not fully appreciating the legal distinction between “the proximate cause” and a contributing cause, might easily interpret the “and not” clause as indicating the plaintiff was re

The mischief is compounded by two additional, and wholly unnecessary instructions requested by defendant and given by the court with some modification. They are:

Defendant’s instruction No. 5. “The Group Accident Loss Benefits here involved contains the following provisions which are pertinent and material:

“Accident Loss Benefits

“ ‘A benefit under this Coverage is payable, subject to the provisions hereinafter stated, if a Participant, while a covered individual, sustains accidental bodily injuries and, within the Accident Loss Period . . . immediately following the date on which such injuries are incurred, suffers the loss of life, ... as a direct result of such injuries and independently of all other causes . . . .’”

* *

“Exclusions.—The insurance provided under this Coverage, as set forth in this section ‘Accident Loss Benefits,’ does not cover any loss which results . . . . (b) directly or indirectly from bodily or mental infirmity or disease or medical or surgical treatment thereof, . . .”

Defendant’s instruction No. 8. “An insurance company may limit its contractual liability by any appropriate provision not prohibited by public policy or statute. It is further entitled to select and classify its risks according to its own standards.”

The jury had the policy before it as an exhibit, and could refer to it if necessary. However, the interpretation of the policy was entirely a matter for the court, and the jury was required to follow the court’s interpretation. (See Parsons v. Bristol Development Co., 62 Cal.2d 861 , 865 [ 44 Cal.Rptr. 767 , 402 P.2d 839 ].) The portion of the policy which the court read to the jury was interpreted by the court in an instruction using other language, in accordance with the Brooks rule. The policy language, by itself, invited misinterpretation by laymen not versed in the legal distinctions between proximate and contributing causation, as

Defendant’s instruction number 8, that an insurance company may limit its contractual liability, is at best an intrusion of a false issue, and at worst, a suggestion that the decedent was unworthy of coverage. That implication was particularly unfortunate after the trial court had erroneously (as we point out below) received evidence that other companies had refused to insure Mr. Nash. The fact that the instruction happens to contain a correct statement of law in the abstract is no justification whatever. There was no issue as to the legality of the policy as written. The issue was the applicability of that policy to the death of the policyholder.

The instant matter was resolved by a nine to three jury verdict, and we cannot say that the jury may not have felt obliged, as the result of these unnecessary instructions, to find that disease was the proximate cause of Mr. Nash’s death. Thus, we must reverse.

We note plaintiff’s contention concerning an evidentiary matter for the trial court’s consideration upon retrial. Plaintiff argues, that prejudicial error was committed by the admission of evidence (elicited from her on cross-examination) that Mr. Nash had twice been denied life insurance coverage. The trial court admitted the evidence on the theory that it was relevant to a material issue, i.e., the physical condition of the insured.

The testimony was both irrelevant and incompetent. It was irrelevant because we know nothing about the standards used by the companies which had declined coverage on Mr. Nash’s life; it was incompetent because, at most, the testimony was a hearsay report of what some employee of some insurance company concluded about Mr. Nash.

On retrial such evidence should not be admitted.

Judgment is reversed.

Files, P. J., and Kingsley, J., concurred.

A petition for a rehearing was denied June 19, 1974, and the opinion was modified to read as printed above. Respondent’s petition for a hearing by the Supreme Court was denied July 25, 1974.