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 No. 96-2321 

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Gerald W. Jennings, *

*

 Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the Western

* District of Arkansas.

Billie J. Jennings; Whirlpool *

Corporation, *

*

 Defendants - Appellees, *

*

John Hancock Mutual Life *

Insurance Company, *

*

 Defendant, *

*

Commercial Life Insurance *

Company, *

* 

 Defendant - Appellee. *

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 No. 96-2342 

___________

Gerald W. Jennings, *

*

 Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the Western

* District of Arkansas.

Billie J. Jennings, *

*

 Defendant - Appellant, *

*

Whirlpool Corporation, *

*

 Defendant - Appellee, *
*The HONORABLE ANDREW W. BOGUE, United States District

Judge for the District of South Dakota, sitting by

designation.

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*

John Hancock Mutual Life *

Insurance Company, *

*

 Defendant, *

*

Commercial Life Insurance *

Company, *

* 

 Defendant - Appellee. *

___________

 Submitted: February 10, 1997

 Filed: March 26, 1997

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Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, District Judge. *

___________

BOGUE, Senior District Judge.

The underlying action in this appeal is one for the recovery of

accidental death benefits brought pursuant to the Employee Retirement

Security Act of 1974 (ERISA), codified at 29 U.S.C. § 1001 et seq.

Plaintiff, Gerald W. Jennings (“Mr. Jennings”), originally filed this suit

in Arkansas state court seeking life insurance benefits and accidental

death benefits pursuant to the death of his son, who was also named Gerald

Jennings and will hereafter be referred to as “decedent.”

In his complaint, Mr. Jennings named: (1) Whirlpool Corporation,

decedent’s employer and provider of the insurance policies at issue; (2)

John Hancock Mutual Life Insurance Company, which issued a life insurance

policy on decedent for $42,000 and an accidental death policy for $9,000;

(3) Commercial Life Insurance Company which issued an accidental death

policy on decedent for $100,000; and (4) Billie 
The Honorable H. Franklin Waters, United States District 1

Judge for the Western District of Arkansas, Fort Smith Division.

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J. Jennings (“Mrs. Jennings”), decedent’s ex-wife who shot decedent to

death and is the primary beneficiary on the policies at issue. Mr.

Jennings is the secondary beneficiary, and seeks to recover the benefits

primarily designated for his former daughter-in-law. 

After the case was removed from state court, Mrs. Jennings filed a

cross-complaint against her co-defendants (Whirlpool, John Hancock, and

Commercial Insurance) seeking the same benefits sought by her former

father-in-law. Defendant John Hancock was eventually dismissed with

prejudice after paying $51,000 into the Court’s registry and the case

proceeded among the remaining parties. The remaining issues were whether

decedent’s death was accidental, and if so, who was entitled to the

accidental death benefits.

After consideration of a stipulated record, the District Court1

dismissed the case in its entirety, granting judgment against Gerald

Jennings and Billie Jennings on the grounds that decedent’s death was not

accidental. Mr. Jennings and Mrs. Jennings now appeal that judgment. We

affirm.

There is little dispute as to the facts of this case. Mrs. Jennings

and the decedent were divorced on September 13, 1994. During the course

of their marriage, throughout their separation and after the divorce, Mrs.

Jennings was the recipient of a pattern of verbal and physical abuse from

the decedent. In the early morning hours of October 18, 1994, Mrs.

Jennings, her children, and her new fiancé Kurt Kasprytzky, were awakened

by the decedent knocking on the door and demanding to be let in. Mrs.

Jennings let the decedent inside the house and an argument ensued.

Throughout the course of the argument, the decedent struck his ex-wife at

least once in the head with his fist. At some point, Mrs. Jennings called

out to Kasprytzky for help. Kasprytzky entered the room with a pistol and

fired two warning shots into the floor. When the decedent retreated, 
Mrs. Jennings was charged with Second Degree Murder in 2

Arkansas state court, and was acquitted of the offense following a

jury trial.

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Mrs. Jennings retrieved the gun from Kasprytzky. She fired one more

warning shot as the decedent took a step toward her. The decedent grabbed

Mrs. Jennings’s hands yelling at her to go ahead and shoot him. The gun

accidently discharged and hit the decedent in the arm. The decedent let

go of Mrs. Jennings’s hands and retreated somewhat. He then raised his

fist and said “I will kill you” as he charged back at her. Mrs. Jennings

turned her head, fired one more shot, and killed her ex-husband. 

2

On appeal, both Mr. Jennings and Mrs. Jennings argue the Court erred

in finding the decedent’s death was non-accidental. We review of the

factual conclusion that this death was not accidental for clear error.

Cockrell v. Life Insurance Company of Georgia, 692 F.2d 1164, 1167 (8th

Cir. 1982). 

Mr. Jennings and Mrs. Jennings argue that under Arkansas law, before

his death can be ruled non-accidental, the evidence must establish that the

decedent subjectively knew, or would reasonably anticipate, that Mrs.

Jennings would shoot him with the intent to kill. They maintain that

although her relationship with the decedent was filled with abuse, Mrs.

Jennings never retaliated physically or offered any physical reprisals to

the decedent in response to such abuse. Moreover, the Jenningses’ past

history of arguments never involved the use of firearms. Given the

circumstances of this case, they argue, the evidence was insufficient to

establish the requisite subjective knowledge of the decedent at the time

of the shooting. The appellants, however, misstate the applicable law. 

Under Arkansas law, proof of death of an insured from injuries

received by him raises a presumption of accidental death which presumption

continues until overcome by affirmative proof to the contrary on the part

of the insurer. Mutual of Omaha v. George, 434 
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S.W.2d 307, 309 (Ark. 1968)(citations omitted). Death by accident or by

accidental means for insurance purposes generally does not include death

resulting from injuries received in an encounter provoked by the insured

or in which the insured was the aggressor and failed to retire in good

faith. Aetna Life Insurance Co. v. Lemay, 236 S.W.2d 85, 87 (Ark. 1951).

“However, death may be accidental, even though the insured was the

aggressor, if the insured . . . could not reasonably have anticipated that

the adversary would respond in such a manner as to seriously injure or kill

the insured.” Cockrell, 692 F.2d at 1168 (applying Arkansas law). As the

Arkansas Supreme Court has stated:

Great weight is attached to the insured’s ability to foresee

the natural and probable consequences of his action. If the

action of the insured is such that a reasonable person would

conclude that danger of serious injury might result, recovery

would be denied. If the action is such that the insured could

not reasonably foresee the fatal consequences, recovery will be

permitted.

Lincoln Income Life Insurance Co. v. Alexander, 328 S.W.2d 266, 270 (Ark.

1959). If the insured’s death was reasonably foreseeable and a natural

consequence of his wrongful assault upon another, the insurer is excused

from paying accidental death benefits under the policy. Id. See also,

General American Life Insurance Co. v. Priest, 301 F.2d 390, 394 (10 cir. th

1962)(as a general rule, insured’s death is accidental unless it was a

natural and probable result of his own actions, reasonably foreseeable by

him or by a reasonably prudent man in his position). Thus, the insurer can

overcome the presumption of accidental death by showing the decedent knew

or reasonably should have known that Mrs. Jennings would respond to his

attack with deadly force.

The Jenningses refer us to Wade v. Continental Insurance Co., 514

F.2d 304 (8 Cir. 1975) in support of their contention that the decedent’s th

death was accidental. In Wade, the evidence showed that the decedent and

his wife had a long history of domestic quarrels. Indeed, on many

occasions, after being beaten by her husband, Mrs. 
The Wade court also attached much importance to the fact that 3

Mrs. Wade was subsequently convicted of manslaughter in state

court. “The general rule is that one has no duty to foresee the

criminal conduct of another.” Wade, 514 F.2d at 307.

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Wade had been hospitalized. Yet Mrs. Wade had never offered violent

retaliation, and neither party had ever threatened the other with death or

brandished a gun. During one such quarrel, after Mr. Wade hit his wife,

she said to him “If I had a gun, I’d shoot you.” Mr. Wade promptly

retrieved a gun, loaded it, handed it to Mrs. Wade and told her to go ahead

and shoot. She did. Applying Iowa law, the Court reversed the district

court and ruled that despite the obvious taunt and defiance by Mr. Wade,

there was no evidence to show that he would reasonably foresee that his

wife would actually shoot him. Id. at 307. The Court held that “there

[was] no evidence to support a finding that the shooting was ‘according to

the usual course of things’ or ‘the natural and usual . . . result’ of

handing a previously law abiding and long-suffering wife a gun, even with

a defiant challenge to use it.” Id.(citation omitted).3

The Jenningses argue that, as in Wade, although the decedent taunted

Mrs. Jennings to shoot him, based upon her history of passivity, her lack

of physical reprisals, and the lack of the use of firearms in the past, the

evidence before the Court fails to establish that the decedent would

reasonably anticipate that Mrs. Jennings would actually shoot him with the

intent to kill. We disagree.

There are important factual differences between Wade and the case at

bar which bring this case outside the realm of accidental death. As the

District Court correctly observed, the facts of this case are far more

egregious than Wade and the other cases cited by the Jenningses. Mrs.

Jennings and the decedent were divorced and she had a new fiancé. The

decedent was under a restraining order at the time he violated the peace

and tranquillity of Mrs. Jennings’s home. Mrs. Jennings was holding the

decedent at gunpoint during a 
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particularly tense moment in the encounter. Most importantly, the decedent

received several warning shots prior to being fatally shot. Mr. Kasprytzky

fired two warning shots into the floor. Mrs. Jennings fired one warning

shot herself and a fourth bullet actually struck the decedent in the arm.

At this point, although Mrs. Jennings had never retaliated before and no

firearm had ever been used in their past quarrels, the decedent was aware

that Mrs. Jennings was pointing a gun at him during an extremely tense

moment and was capable of firing it. We cannot say the District Court

clearly erred in finding that when the decedent charged Mrs. Jennings one

last time, he should have foreseen his death.

Accordingly, the judgment of the District Court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.