___________ No. 96-2321

___________ 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. *

___________ 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. 

### -2- * John Hancock Mutual Life * Insurance Company, * * Defendant, * * Commercial Life Insurance * Company, * * Defendant - Appellee. *

___________ Submitted: February 10, 1997 Filed: March 26, 1997

___________ 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 o f acciden tal death benefits brought pursuant to the Employee Retiremen t SecurityAct of 1974 (ERISA), codified at 29 U.S.C. § 1001 et seq
. Plaintiff, Gerald W. Jennings (“Mr. Jennings”), originally filed this suit in Ark ansas state court seeking life insurance benefits and accidenta l death benefits pursuant to the death of his son, who was also named Gerald Jennings and will hereafter be referred to as “decedent.” Inhis complaint, Mr. Jennings named: (1) Whirlpool Corporation , decedent’s employer and provider of the insurance policies at issue; (2) John Hancock Mutual L ife Insurance Company, which issued a life insurance policy on decedent fo r $42,000 and an accidental death policy for $9,000; (3) Co mmercial Life Insurance Company which issued an accidental deat h 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. 

### -3- J. Jen nings (“Mrs. Jennings”), decedent’s ex-wife who shot decedent t o 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 t he case was removed from state court, Mrs. Jennings filed a cross -complaint against her co-defendants (Whirlpool, John Hancock, an d Commer cial Insurance) seeking the same benefits sought by her forme r fa ther-in-law. Defendant John Hancock was eventually dismissed wit h prejudi ce after paying $51,000 into the Court’s registry and the cas e proceeded among the r emaining parties. The remaining issues were whether decedent’ s death was accidental, and if so, who was entitled to th e accidental death benefits. After consideration of a stipulated record, the District Court 1 dismis sedthe case in its entirety, granting judgment against Geral d Jennings and Billie J ennings on the grounds that decedent’s death was not accidental. Mr. Jenn ings and Mrs. Jennings now appeal that judgment. We affirm. There is little dispute as to the fa cts of this case. Mrs. Jennings andthe decedent were divorced on September 13, 1994. During the course of their marriage, throughout their separation a nd after the divorce, Mrs. Jennings was the reci pient of a pattern of verbal and physical abuse from the deced ent. In the early morning hours of October 18, 1994, Mrs
. Jennings, her childre n, and her new fiancé Kurt Kasprytzky, were awakened by t he 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 p oint, 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. 

### -4- Mrs. Jennings retrieved the gun from Kasprytzky. She fired one mor e 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 accidentlydischarged and hit the decedent in the arm. The decedent let go of Mrs . Jennings’s hands and retreated somewhat. He then raised hi s 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 th e factual conclusion that this death was not accidental for clear error
. Cockrell v. Life Insurance Company of Georgia , 692 F.2d 1164, 1167 (8 th 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 th e deceden t subjectively knew, or would reasonably anticipate, that Mrs
. Jen nings would shoot him with the intent to kill. They maintain tha t alt houghher relationship with the decedent was filled with abuse, Mrs
. Jennings never retali ated physically or offered any physical reprisals to the decedent in response to such abuse. Moreover, the Jenningses’ pas t history o f arguments never involved the use of firearms. Given th e circumstances of this case, they argue, the evidence was insufficient to establishthe 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 injurie s received by him raises a presumption of accidental death which presumptio n continues until overc ome by affirmative proof to the contrary on the part of the insurer. Mutual of Omaha v. George , 434

### -5-

S.W.2d307, 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 wh ich the insured was the aggressor and failed to retire in goo d 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 th e aggressor, if the insured . . . could not reason ably have anticipated that the adversary would respond in such a manner as to seriously injure or kil l the insured.” Cockrel l , 692 F.2d at 1168 (applying Arkansas law). As the Arkansas Supreme Court has stated: Gre at weight is attached to the insured’s ability to forese e the natural and probable consequences of his action. If th e actionof the insured is such that a reasonable person woul d 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, reco very will be permitted. Lincoln Income Life I nsurance Co. v. Alexander , 328 S.W.2d 266, 270 (Ark. 1959). If the insured’s death was reasonably foreseeable and a natura l consequence of his wrongful assault upon another, the insurer is excused frompa ying 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 ca n overcome the presumpt ion of accidental death by showing the decedent knew
or reasonably should have knownthat Mrs. Jennings would respond to hi s attack with deadly force. The J enningses refer us to Wade v. Continental Insurance Co. , 51 4 F.2d 304 (8 Cir. 1975) in support of their content ion 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 man y 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. 

### -6- Wade had been hospitalized. Yet Mrs. Wade had never offered violen t retaliation, and neither party had ever threaten ed the other with death or brandisheda gun. During one such quarrel, after Mr. Wade hit his wife, she sa id to him “If I had a gun, I’d shoot you.” Mr. Wade promptl y retrieved a gun, loaded it, handed it to Mrs. Wade and told her to go ahea d andshoot. 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 hi s wife wou ld actually shoot him. Id . at 307. The Court held that “ther e [was] no evidence to support a finding that the shooting was ‘according to the usual course of things’ or ‘the natural and usual . . . result’ o f 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 Wad e , although the decedent taunted Mrs. Jennings to shoo t him, based upon her history of passivity, her lack of physical reprisals, and the lack of the use of firearms in the past, th e evid ence before the Court fails to establish that the decedent woul d reasonably anticipate that Mrs. Jennings would a ctually shoot him with the intent to kill. We disagree. There are important factual differen ces between Wade and the case at bar which bring this case outside the realm of accidental death. As the Distr ict Court correctly observed, the facts of this case are far mor e egregious than Wade and the other cases cited by the Jenningses. Mrs
. Jennings and the decedent were divorced and she had a new fiancé. Th e decedent was under a restraining order at the time he violated the peace andtranquillity of Mrs. Jennings’s home. Mrs. Jennings was holding the decedent at gunpoint during a

### -7-

particularly tense moment in the encounter. Most importantly, the deceden t received several warning shots prior to being fatally shot. Mr. Kasprytzky firedtwo warning shots into the floor. Mrs. Jennings fired one warning shot herself and a fo urth bullet actually struck the decedent in the arm. At this point, although Mrs. Jennings had never retaliated before and no firearm had ever beenused in their past quarrels, the decedent was aware that Mrs. Jennings was pointing a gun at him during an extremely tens e moment a nd was capable of firing it. We cannot say the District Cour t clearly erred in find ing 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.