IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

FOR PUBLICA TION Filed: September 3, 1996
DANNY RAY HARR ELL, ) ) KNOX CHANCERY Plaintiff-Appellant, ) ) ) HON. H. DAVID CATE, Vs. ) CHANCELLOR ) THE MINNESOTA MUTUAL LIFE ) INSURANCE COMPANY, ) ) NO. 03-S-01-9508-CH-0 0098 Defendant-Appellee. )

For Appellant: For Appellee: Rufus W. Beamer, Jr. Arthur G. Seymour, Jr. Knoxville, Tennessee Robert L. Kahn FRANTZ, McCONNELL & SEYMOUR Knoxville, Tennessee



## O P I N I O N

COURT OF APPEALS REVERSED; REMANDED TO TRIAL COUR T. ANDERSON, J1 Mutua l Life Ins. Co . of New York v. D istretti , 159 Tenn. 138, 17 S.W .2d 11 (1929). -2- We granted this appeal to determine whether we should retain "the Distretti Rule 1 " adopted by this Court si xty-seven yea rs ago. The rule prov ides that before a death will be considered accidental under the te rms of an insurance contract, the means, as wel l as the result, must be inv oluntary, unexpected, and unusual.
In this case, the Chancellor held that the plaintiff's de ath in an automobile collision was caused by her driving under the influence of an intoxicant, and it therefore was not "death by a n accidental injury w hich was unintended, unexpected, and unforeseen" and, as a r esult, benefits were not pay able on the insurance contract. The Cour t of Appeals, while noting that the rule had been criticized and rej ected by a number of jurisdic tions, nevertheless affirmed.

After careful consideration, w e have determined that we s hould join the growing number of jur

isdictions which hav

e abandoned the distinction betw een "accidental means" and "accidental results." W e do so because the distinction is contrary to the un derstanding an d reasonable e xpectations of the average insurance policyholder

and contrary to the plai n meaning of the terms of the insurance contract. We also think there is a fundamental flaw in analy zing insurance contract terms und er tort principles, s uch as foreseeability. We, therefore, overrule Distretti and its progeny, rev

erse the Court of Appeals, and remand t his case to the t rial co urt for e ntry of a judgm ent in fav

or of the plainti ff.2 That levelis more than twi ce the .08 per cent requir

ed to “creat

e a presumption” t hat Harrell was “under the i nfluence” of an intoxi cant and her dri ving abi lit

y was impaired.Tenn. Code Ann. § 55-10-408(b)(1995 Supp.). -3- BACKGROUND On December 18, 1990, at approximately 9:30 p.m., Robin Denise Harrell died as a result of injuries she sustained in an automobile c ollision on Maynardville Hi ghway, a four-lane r oad divided by a gr

ass median in Knox County, Tennessee. The car Robin Harrell was driving crossed the grass median and struck two southbound cars. Tests performe d on a blood sample taken after Harrell’s death revealed a blood-alcohol level of .20 percent. 2

At the time of her death, Robin Har rell and her husband, Danny Ray Harrell, the plaintiff in th is appeal, were insur ed under a credit life polic y issued by the defendant, The Minnesota Mutual Life Insurance Company (herea fter “Minnesota Life”). This pol icy provides for pay ment of the balance of the mortgage on the home owned by Robin and Danny Ray H arrell in the event either suffered death by “acci dental injury.” At the time of Robin Harrell’s death, the mortgage balance was approximately $48,000. With regar d to coverage for accidental death, the policy provided as follows:

What does death by accidental injury mean? Death by accidental inj ury as used in this cer tificate means that your death results , directly and independently of all other caus es, from an accidental drowning or from an acci dental injury whi ch was unintended, unexpected and unforeseen. .

. .
Danny Ray Harrel l filed a claim with M innesota Life for payment under the policy, but Minnesota Life denied the claim. Harrell, thereafter, brou ght this action seeking to recov er under the policy. F

or answer, Minnesota Li fe denied that Robin Harrell died from “an accidental injury which was unintended,-4- unexpected, and unforeseen.” Inst ead, Minnesota Life argued that he r death was the foreseeable consequence of driving an automobile und er the influence of alcohol.
Following a bench tr

ial, the Chancellor, rel

ying upon a prior deci sion of this Court, Mutual Life Insurance Co. of New York v. Distre

tti , 159 Tenn. 138, 17 S.W.2d 11 (1929), and a long line of authority applying “the Distretti rule,” dismissed the case, finding specifically that Robin Harrell’s death did not result “directly and independently of all other causes . . . from an accidental injury which was unintended, unexpected, and unforeseen.” Danny Harrell appealed, arguing that the Distretti rule should be modified or ov erturned. While noting that the rule has been criticized and rejected by a number of jurisdictions, the Court of Appeals affirmed the Chancellor, st ating that “Tennessee remains committed to the rule that before a death will be considered accidental the means as well as the result

must be involuntary, unexpected, and unusual.” (Emphasis added.)
Thereafter, we granted the plaintiff permission to appeal to consider this important question of insuranc e law -- whether recovery under an acc idental death insurance policy r equires that the means causi ng death, as well as the resulting death, be inv

oluntary, unexpected, and unusual.

ACCIDENTAL DEA

TH In this appeal, Danny Har rell urges this cour

t to abandon the Distretti rule which differentiates between "accidental means" and "accidental results." Harrell argues that this Court should adopt a rule that would allow recovery if death is accidental in the common meaning of the word, regardless of the nature of the means which precipitated the accidental death, and asserts such a rule is-5- consistent with the plai n understanding and objectiv ely reasonable expectations of the average insured.
Minnesota Life responds that the longstanding rule establishe d by this Court in Distretti , that death is n ot “accidental ” if it i s a foreseeable r esult of a voluntary act, should be reaffirmed, and that Robin Harrell’s death was a foreseeable result of her driv ing an automobile under the influe nce of an intoxicant.
We begin our analysis of this issue with a review of the case law in this jurisdiction. The decisions of the lower courts in this case were based upon this Court’s decision in Distretti interpreting accidental death. There, Distretti w as robbed at gunpoint by bandit s. As the bandits were fleeing, Distretti armed himself, ran outside the store, and opened f ire on them. The bandits shot back, and Distretti was killed. His wife brought suit to recover under a life insurance policy which paid “upon receipt of due proof that such death resulted from bodily injury effected solely through external vi olent and accidental means ." (Emphasis added.) The Distretti court denied recovery, concluding that Distretti’s death w

as a foreseeable result of his v oluntary act of chasing the bandits and shooting at them, and therefore, his death was not pr oduced by “accidental means,” for purpos es of the insurance policy.
The distinction adopted by the Distretti court between death by “ accidental means” and “accidental death” was explained succi nctly by Professor C ouch as follows:
[A]ccidental death is an unint ended and undesigned result ar ising from acts voluntarily done, whereas death by accidental means is a result arising from acts unintentionally done or events undesignedly-6- occurring. The term ‘acc idental means’ refers to the occurrence or happening which produces the result, rather than the result; it is concerned with the cause of the harm rather than the character of the harm.
10 Couch, Insurance 2d (Rev. ed.) § 41:29, pp. 44-45 (1982 & S upp. 1995) (footnotes omitted). Therefore, under the Distretti rule, a death that is caused b y an insured’s intentional act, or is a foreseeable consequence o f an insured’s voluntary act, is not considered “accidental. ” Though the distinction ar ose in the Distretti case and other cases wher e the specific term “accident al means” was used in insurance contracts , the distinction has been appl ied in cases, such as this one, where the term i s not a part of the insurance cont ract. See , e.g. , Spears v. Commercial Ins. Co. of Newark, N.J. , 866 S.W.2d 544 (Tenn. App. 1993). The Distretti rule has never been ov erruled and has been approved and applied in various cont

exts in later Tennessee cas es. See , e.g. , Seeley v. Pilot Fire & Cas. Co. , 432 S.W.2d 58 (Tenn. 1968); Baker v. National Life & Acc. Ins. Co. , 201 Tenn. 247, 298 S.W.2d 715 (1956); Jones v. Fireman’s Fund American Life Ins. Co. , 731 S.W.2d 532 (Tenn. App. 1986); Nicholas v. Prov ident Life and Acc. Ins. Co. , 61 Tenn. App. 633, 457 S.W.2d 536 (1970). Indeed, the distinction between “ac cidental means” and “accident al results” has been appli ed in Tennessee in a case similar to the Harrell case to de ny recovery under an accidental death policy for an insured party w ho had been killed in a one car accident while intox

icated. Hobbs v. Provident Li fe & Acc. Ins. Co. , 535 S.W.2d 864 (Tenn. App. 1975). The Hobbs court concluded that “the danger of injury or death as result of operating a motor vehicle while intoxicated is a foreseeable one and the appellate courts of this State have repeatedly hel d that death is not caused by accidental means, within the meaning of an insurance po licy if it is a foreseeable result of a voluntar y and unnecessary act o r course of conduct of the insured.” Id ., 535 S.W.2d at 866.-7- While Tennessee has remained committed to the distinc tion between “accidental means” and “accidental death,” commentators and many other courts have criticized the distinction as illus ory and contrary to the normal expectations of the average policy holder.
The rejection of the distinction between "accidental means" and "accidental results" was first articulated by Justice Cardozo more than sixty years ago in dissent in Landress v. Phoenix M ut. Life Ins. Co. , 291 U.S. 491, 54 S. Ct. 461, 463, 78 L. Ed. 934 (1934). There,the insured died after suffering sunstroke. The majority said that since the insured voluntarily exposed himself to the sun and there were no u nforeseen intervening caus es, the death was not caused by accidental means. Id ., 291 U.S. at 496, 54 S. Ct. at 462. Justice Cardozo strongly

disagreed:
The attempted distinction betwee n accidental results and accidental means will plunge this branch of the law into a Serbonian Bog. Probably it is true to say that in the strictest sense and dealing with the r

egion of physical nature there is no such thing as an accident. . . . On the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of accident insur ance. It is his reading

of the policy that is to be accepted as our guide, w ith the help of the established r ule that ambiguities and uncertainti es are to be resolved against the company. . . . When a man has died in such a w ay that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means. . . . If there was no accident in the means, there was none in the result, for the two are inseparable. . . . There w as an accident throughout, or there was no accident at all.
Id ., 291 U.S. at 499, 54 S. Ct at 463 (Cardozo, J., dissenting). Justice Cardozo’s views in dissent have now gained the supp ort of the great majority of jurisdictions.3 See , e.g. , W eil v. Federa l Kem per Life A ssur. C o. , 866 P.2d 774 (Cal. 1994)(In Bank ); Smith v. Conti nental Cas. Co. , 203 A.2d 168 (D .C. App . 1964); Evans v. Metropol itan Li fe Ins. Co. , 174 P.2d 961 (W ash. 1946).

4 INA Life In s. Co . v. Bru ndin , 533 P.2d 236 (Ala ska 19 75); Knight v. Metropoli tan Life Ins. Co. , 437 P.2d 416, 420 (Ariz. 1986 ); Carroll v. CUNA Mut. Ins. Soc. , 894 P.2d 746 (Colo. 1995); Gulf Life I ns. Co. v. Nash , 97 So. 2d 4, 10 (Fla. 1 957); Dawson v. Bankers’ Life Co. , 247 N.W

. 279, 282 (Iowa 19 33); Fryman for Fryman v. Pi lot Li fe Ins. Co. , 704 S.W .2d 205, 206 (Ky. 1986); Schonberg v. New York Life Ins. Co. , 104 So . 2d 171 (L a. 1958) ; Collin s v. Nati onwide Life Ins. Co. , 294 N.W .2d 194, 1 96 (Mic h. 1980) ; Taylor v. New York Life I ns. Co. 222 N.W. 912 (Minn. 1929); Murphy v. Travel ers Ins. Co. , 2 N.W .2d 576, 5 80 (Ne b. 1942) ; Catania v. State Farm Life Ins. Co. , 598 P.2d 631, 633 (Nev. 19 79); Scott v. New Empire Ins. Co. , 40 0 P. 2d 9 53, 955 (N. M. 1965); Burr v. Co mm ercia l Tra veler s Mu t. Acc . Ass ’n , 67 N.E.2 d 248, 25 2 (N.Y. 19 46); Cooper v. New York Life Ins.Co. , 180 P.2d 654 (O kla. 194 7); Botts v. Hartford Acc. & Indem. Co. , 585 P.2d 657, 660 (Or. 197 8); Beckham v. Travelers Ins.Co. , 225 A.2d 532, 534 (Pa. 196 7); W est v. Comm ercial Ins. Co. of Newark, N.J. , 528 A.2d 339 (R .I. 1987); Republic Nat. Life Ins. Co. v. Heyward , 536 S.W .2d 549, 5 57 (Te x. 1976 ); Cart er v. Stan dard Acc. I ns. Co ., 238 P. 2 59, 275 (Utah 1 925); W iger v. Mut. Life Ins. Co. of New York , 236 N.W . 534, 538 (W is. 1931); W ickman v. Northwestern Nat . Ins. Co. , 908 F.2 d 1077 (1st Cir. 19 90); W hitaker v. State Farm Mu t. Auto Ins. Co , 768 P.2d 320 (Ka n. App. 19 89); Cons ume rs Life Ins . Co. v. Sm ith , 587 A.2d 1119, 1124-25 (Md. Ap p. 1991) ; see also John D . Ingram and Lynn e R. Os tfeld, The Distinct ion Between AccidentalMeans and AccidentalResults i n AccidentalDeath Insurance , 12 Fla. St. U. L. Rev. 1, 9 (1984 ); 1A App lema n, Insurance Law and Pract ice , § 360, pp. 475-76. -8- Professor Appleman also illus trates the fallacy of the distinction as follows:
Almost e very action we take has some ele ment of design; if we drive an automobile upon the hi ghway, where an other collided with us, could this not have been foreseeable, or at least wi thin the realm of potential so far as the “means” were concerned? Every instance where a person w alks, or jumps, and slips or falls, comes within a like category. To permit a rigid construction of such expressions is to per

mit a deception to be practiced upon the public. . . . 1A Appleman, Insurance Law & Practice , § 363 at p. 492 (1981 & Supp. 1995).
Although a few courts in other jurisdictions still cling to the dis tinction, 3 most courts have either abo lished the distinction or refused to recognize it in the first place when considering whether a particular death or injury is accidental. 4 Under the more recent cases, the unexpected consequences of an individual’s voluntary behavior provide the accidental element for purposes of an insuran ce policy. Carroll v. CUNA Mut. Ins. Soc. , 894 P.2d at 751.-9- A good example of the persuasive analysis used in such cases is provided by the Texas Supreme Court, which abandoned the distinction between "accidental means" and "accidental results," rea soning as follows:

Texas courts have w

aded through Justice Cardo zo’s Serbonian bog, and we are now c onvinced that the terms ‘ac cidental death’ and ‘death by accidental means’ as those terms are used in insurance policies, must be regarded as legally synonymous unless there is a definition in the insurance contract itself which requires a different construction. These terms in an insu rance contract should be given their ordin ary and popular meaning ac cording to the understanding of the averag e man; the court’s guide shoul d not be the technical meaning of the w ords used, but rather the int ention of the parties as inferred from the c ontract as a whole. A fine distinction between means and results would never occur to an average policyholder, and the insurer should not be able to escape liability by resort to such a technical definition. If the insurer wishes to distinguish between accidental res ults and injuries caused by

accidental means, he shou ld do so expressly, so as to give the policyholder clear notice of any limitations of liability which the insurer wishes to impose by use of the latter ter

m.
Republic Nat. Life Ins. Co. v. Heyward , 536 S.W.2d at 557 (emphasis added). Like the Texas Supreme Court,almost every court rejecting or abandoning the distinction has found the disti nction contrary to both the plain meaning of the terms and the u nderstanding a nd reasonable expectations of the average policyholder. See , e.g. , Carroll v. CUNA Mut. Ins. Soc. , 894 P.2d at 753; Buck v. Gulf Life Ins. Co. , 548 So. 2d at 718. In addition, many courts have concluded that the distinction itself arises from an inappropriate importation of the tort concept of foreseeability into private insurance contracts.
For example, the Michi gan Supreme Court, in Collin s v. Na tionwi de Life Ins. , explained that “neither the level of foreseeability requisite for tort li ability nor for criminal recklessnes s is sufficient to render a mis hap a 'nonaccident' when conduct is measured against the terms of an accidenta l death insurance policy.”-10- Id ., 294 N.W.2d at 196. In a similar f ashion, the Kentucky Supreme Court observed that the “fundamental flaw ” with the distincti on between accidental means and accidental results i s “that it subjects contr act terms to analysis un der tort principles, such as fault and foreseeability.” Fryman v. Pilot Life Ins. Co. , 704 S.W.2d at 206. In rejecting the distinction, the Kentucky Court said “we are reluctant to analyze contract terms under principles which have tec hnical meaning in other areas of the law.” Id

.

After careful consideration and a thorough review of the cases on the subject, we are persuaded that the better reasoned, more log ical approach is to abandon the distinction betw een "accidental means" and "accidental results." Tennes see, the refore, joins the growing num ber of ju risdictio ns which ha ve emerged from the “Serbonian bog.”
The analysis used in construing insurance contracts is well settled. Like other contracts, insuranc e contracts should be constr ued so as to give effect to the intention and express l anguage of the parties. Tata v. Nichols , 848 S.W.2d 649, 650 (Tenn. 1993). Words in an insurance pol icy are given their common and ordinary meaning, w ith ambiguous language c onstrued against the insurance company and in fav or of the insured. Id . The distinction we had adopted in Distretti is contrary to those now familiar rules of const ruction. In our view, an insured sh ould not have to consult a l ong line of case law or law review articles and treatises t

o determine the coverage he or she is purchasing under an insurance policy. Policy language should be given its plain meaning, unless a technical meaning is cl early provided in the insurance policy. Elsner v. Walker , 879 S.W.2d 852 (Te nn. App. 1994). As the Texas Supreme Court recognized, it is inconceivable that the average insured w ould understand the fine distinction between "accidental means" and "ac cidental results."-11- In addition, we agree that the importation of the tort pri nciple of foreseeability into the interpretation of a private insurance contract is inappropriate. As Justic e Mosk observed in dis sent in Weil v. Federal Kemper Life Assur. Co. , “[t]he insurance company does not represent the public safety concerns of society but the c ommercial interest of its ow ners. Nor was the company forced to issue the poli cy; it voluntaril y did so for the purpose of profiting from the transaction.” Id ., 866 P. 2d at 806 . Insur ance com panies d raft the policies they sell

and are, therefore, free to excl ude injury or death that results from reckless and fool hardy acts. With simplicity and clarity of express ion they may remove all doubt. Knight v. Metropolitan Life Ins. Co. , 437 P.2d at 420.

Accordingly, Distretti , its progenitors and pr ogeny are overrul ed. From this day forward, in Tennessee law there is no di stinction between "accide ntal death" and death by "accidental means " in determining cover age under an insurance policy. Ins

tead, if death is the unanticipated and unexpected result of an intentional, voluntary act, it is accidental i n the ordinary and plain s ense of the word and recovery

is available under an ac cidental death insurance poli cy. Accidental deaths or injuries which are included within this definition, but which the insurance company does not intend be covered, can be spec ifically excluded in the ins urance p olicy.

Where, as here, the insured die d as the result of an intentional act, such as voluntary intox

ication, but did not intend or expect death to result, s uch death is accide ntal for the purpo ses of an accident al death policy. Acc ordingly, we conclude that Robin Harrel l’s death resulted from an “ac cidental injury w

hich was unintended, unexpected and unforeseen.”-12- CONCLUSION Because we conclude that the distinction between “ac cidental means” and “accidental results” is illusory, for the reasons previously articulated, we abandon the distinction. Accordi ngly, the Court of Appeals’ judgment is rever sed, and the cause is remanded to the t rial co urt for e ntry of judgment in fav

or of the plainti ff, Danny Ray Harrel l. Costs of this appeal are taxed to the defendant, The Minnesot a Life In surance C ompany, for which e xecution may issue i f necess ary.

________________________________ RILEY ANDERSON, JUSTICE
CONCUR: Birch, C.J. Drowota, Reid, and White, JJ.