### No. 81-257 INTHE SUPREME COURT OF THE STATEOF MONTANA 1981

LIFE INSURAXCECOMPANY OF NORTH AMERICA, Petitioner and Appellant,

JUDITH ANN EVANS, individuallyand as Personal Representativeof the Estate of LORENZO LLOYD EVANS,Deceased., Respondentand Respondent.

ORIGINAL PROCEEDING:

Counselof Record: ForAppellant: Anderson, Brown,Gerbase, Cebull & 

### Jones,Billings, Montana For Respondent: Douglas & 

### Bostock, Libby,Montana

Submitted on Briefs: July 2, 1981 Decided: November 6,

### 1981

Filed: 

# h'O\'6

# -1%?Mr. JusticeGene B. Daly delivered theOpinion of theCourt. Honorable Russell E. Smith 

## , a senior United States DistrictJudge for theDistrictof Montana, has certifiedto

us a question of law inwhich it appears there are substantialgrounds for difference of opinion, the adjudication of which by this Court would materially advance a decision in federal litigation. The followingquestionswere certified: Are the decisions of law set down in Kingsland v. Metropolitan Life Insurance Co. (1934), 97 Mont. 558, 37 P.2d 335, and Sullivan v. Metropolitan Life Insurance Co. (1934),96 Mont. 254, 29 P.2d 1046, stilllaw inMontana? If the Kingsland and Sullivan cases still state the law inMontana, are the differences in the language of the "exclusions" clauses sufficient to distinguish the policy involved here from those considered in Kinqsland and Sullivan? Lorenzo Lloyd Evans lived at an isolated location, known as "Copper Creek," fiftymiles from Libby, Montana, and twelve miles from Noxon, Montana. He was a lawyer, admitted to practice in Montana, with offices in Libby. Evans kept various wild animals and birds athis place on Copper Creek, including an eleven-year-old wolf which he had raised from a pup. On the morning of June 27, 1979, Lloyd Evans was feeding his wolf when the wolf attacked and bit him on his right hand and wrist. Evans went back to the house, wrapped hishand with a towel, and satdown. Within a period of approximately eight to fifteen minutes after the wolf attack, Evans indicated tohis wife that the bite had precipitated a heart attack and that he should be driven toa hospital right away. Evans walked tohis car and laid down inthe backseat. Hiswife had called

an ambulance, and when they had traveled a littleover half of the distance to Libby, they met the ambulance on the highway. Evans was transferred to the ambulance where oxygenwas administered tohim, and hispulsewas monitored. While in the ambulance, and after a lapse of approximately forty-five to sixty minutes following the wolf attack, Evans' pulse stopped, and he went into cardiac arrest. Oxygen and C.P.R. were administered, and Evans showed some signs of life when the ambulance arrived at the hospital emergency room in Libby. Approximately fifteen minutes after arrival atthe hospital, Lloyd Evans died. Lloyd Evans had previously suffereda heart attackon April 4, 1979. He was hospitalized at the Veteran's Administration hospital in Spokane, Washington, for about three weeks. On April 25, 1979, he was given a regular discharge and returned to the care of his physician, with the recommendation that he be in house rest for another 

### six weeks and graduallyresume hisprehospital activities. Medical evidence indicates that the immediate cause of Lloyd Evans' death was heart attack, but that the heart attack was "triggered" by the wolf bite. The wolf bitewas not severe enough, by itself, to have caused the death of Evans. Lloyd Evans had applied for, and Life Insurance Company of North America had issued, a certain group voluntary accidental death and dismemberment insurance policy, No. OK-2598, in the principal sum of $50,000, effective November 1, 1972. The policy was in full force and effect, according to 

### its terms, on the date of LloydEvans' death. The policycontained thislanguage: "[The insured] 

### is insured

# . . . asainst loss resultingdirectlyand independently of all other causes from bodily injuries caused by accident occurring while the policy is in force as to the Insured, herein called such injuries.

"EXCLUSIONS "The policy does not cover loss causedby or resulting fromany one or more of thefollowing:

"(D)Illness, disease 

# .

# . . bodily infirmity or any bacterial infection other than bacterial infection occurring in consequence of an accidental cutor wound." (Emphasis supplied.) The issue here 

### is whether Kingsland v. Metropolitan Life Insurance Co. (1934), 97 Mont. 558, 37 P.2d 335, and Sullivanv. MetropolitanLifeInsurance Co. (1934), 96 Mont. 254, 29 P.2d 1046, are still law in the State of Montana. After a review of the rules in these cases, we agree with respondent Judith Evans that the reasoning and rules set down inSullivanand Kinqsland are strictand harsh. In Sullivan, the insured tripped over a piece of sheetmetal and fell, hitting hishead. Fivedays later he died of a cerebral hemorrhage. Evidence was submitted at the trial that the insured was suffering from high blood pressure and arteriosclerosis at the time of the fall. Evidence also indicated that had a man not suffering from high blood pressure and arteriosclerosis tripped over the sheet metal, in all probability, no hemorrhage would have resulted. The insurancepolicy inSullivanprovided coverage if the insured sustained "bodily injuries, solely throughexternal violent and accidental means, resulting directly and independently of all other causes." The Court in Sullivan admitted that a reasonable scope of insurance was contemplated by the policy. Nevertheless, because of the clear and unequivocal nature of thislanguage inthepolicy, theCourt held thattherewould be no recovery if

# ".



# .. the insuredmight suffer an accident resulting indeath towhich disease or bodily infirmity contributed indirectly or partially

# . . ." Sullivan, 29 P.2d at 1052. Because the insured was suffering from arteriosclerosis, which contributed toand actively cooperated with the accident to cause the insured's death, therewas no recovery. In Kingsland, the insured had stepped onto a chair sittingon an uneven cement surface; he losthisbalance and fell head first on the rough cement. The insured died shortly after the fall. The cause of the insured's death

was described asa ruptured aneurysm of the aorta, precipitated by the fall and by striking his head on the cement floor. The Court in Kingsland first looked to the language of the insurance policy which contained the condition that death must be shown to result "solely through external, violent and accidental means." Kingsland, 37 P.2d at337. The Court then reasoned that the term "proximate cause" 

### is inapt in this class of cases because "recovery can be had only if death resulted 'solely' (not proximately) from injuries received through accidental means 

# . I1 Kingsland, 37 P.2d at 337. According to the Court in Kinqsland, there could be no recovery if the insured's condition was a contributing cause of death. If a pre-existinginfirmitywere shown, recovery couldonlybe had if the accidental injury was sufficient in itself to cause the death of ahealthyman. The Kinqsland Court reasoned further thatinSullivan the fall alone was not sufficient to cause the insured's death, and hisconditionwas therefore a contributingcause. In contrast, because evidence showed that the fall of the insured in Kingsland was sufficient to cause the death of the insured, recovery was granted. The issue here is whether this Court should still followtherulesetdown inKingsland and Sullivanthat if a preexisting condition contributes to an insured's death, there can be no recovery. Given the extreme harshness of this rule and the liberal interpretation placed on such insurance policies in many jurisdictions today, we must overrule theKingsland and Sullivancases totheextentthat they hold that there can be no recovery if a preexisting disease either directly or indirectly contributes to an insured's death. We arepersuaded that the better rule for the interpretation of such insurance policies 

### is the following: Where an accidental injury aggravates or triggers a preexistingdormantdiseaseor physical infirmity, the accident may be said tohave been theproximate cause of the resulting disability within the terms and meaning of an ordinary accident insurance policy. See, Boring v. Haynes (1972), 209 Kan. 413, 496 P.2d 1385; Carlson v. New York Life Insurance (1966), 76 Ill.App.2d 187, 222 N.E.2d 363; McMackin v. Great American Reserve Ins. Co. (1971), 22 Cal.App.3d 428, 99 Cal.Rptr. 227; Nash v. Prudential Ins.Co. of America (1974), 39 Cal.App.3d 594, 114 Cal.Rptr. 299; Brown v. State Mutual Life Insurance Company of America (La.App. 1979), 377 So.2d 355; Zurich Ins. Co. v. Ruscoe (Miss. 1967), 203 So.2d 305; Couey v. National Benefit Life Insurance Company (1967), 77 N.M. 512, 424 P.2d 793. For a discussion of caseson thismatter, see 84 A.L.R.2d 176. The mere presence of a preexisting disease or infirmity will no longer relieve the insurer from liability in this state. Recovery may be had even though the disease appears to have actually contributed to the cause of death

as long as the accident sets inmotion the chain of events leading to death, or if it is the prime or moving cause. See, Brooks v. Metropolitan Life Ins. Co. (1945), 27 Cal.2d 305, 163 P.2d 689; Kater v. United Insurance Company of America (1960),22 Ill.App.2d 22, 165N.E.2d 74. A mere frail condition should not relieve an insurer from liability. As Chief Justice Cardozo noted in Silversteinv. Metropolitan LifeCo. (1930), 254 N.Y. 81, 171N.E. 914, an insurance policy 

### is not accepted with the thought that its coverage 

### is to be restricted to an Appollo or a Hercules. We agree with the following language from Couey v. National Benefit Life Insurance Company, supra, 424 P.2d at 795: "In our view of the case, every injury or disease suffered by a person from his birth to the date of a particular injury contributes to some degree to the condition then present. Necessarily, by the words used in the policy it could not have been intended that payment would be due only when the accident was literally the sole cause of hospitalization. If a person had suffered a broken leg which had healed perfectly five years before, and a second accident wherein the leg had broken at the same place, could

### itbe said that the condition resulting from the firstbreak did not in anyway contribute to the second break? We think the answer is obvious and,under defendants' theory,plaintiff would notbe entitled to recover. Inour view, this application of the language of the policy isentirely toorestrictive andwould be unreasonable. Other courts have agreed 

# . . Likewise, the rulings of Sullivanand Kingsland were too restrictive,and any rules in these casesmust be overruled to the extent they are inconsistent with thisopinion. Sincewe have held thatKingsland and Sullivanno longer state the law inMontana,we need notdiscuss the second

4 l' 

### question certified to us.

Justice 

### V

We concur: 

### ?A4$ j

# wdw

Chief Justice