Summary
noting that whether occurrence constituted an "accident" within the meaning of an accident insurance policy is generally for the trier of fact to determine
Summary of this case from Saint Calle v. Prudential Ins. Co.Opinion
December 19, 1988
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the judgment is reversed, insofar as appealed from, on the law, with costs, the order dated September 8, 1987 is vacated and the plaintiff's motion for summary judgment as against the appellant is denied.
George Lachter, a 55-year-old attorney, employed by the defendant International Business Machines (hereinafter IBM), died as a result of a "massive pulmonary emboli" shortly after returning from a business trip to Japan. Lachter's widow, who was the named beneficiary under an accident insurance policy issued by the defendant Insurance Company of North America (hereinafter INA) through IBM, filed a claim to recover accidental death benefits. The policy provides for the payment of benefits thereunder for losses "resulting directly and independently of all other causes from accidental bodily injuries" which arise, inter alia, out of hazards to which the insured may be exposed during business sojourn or travel. INA refused to honor the claim, asserting that the insured's death was not the result of an accident, but was caused by illness or disease. The plaintiff widow commenced this action against INA for, inter alia, breach of contract. She subsequently moved for summary judgment against INA, alleging that the decedent's immobilization during the approximately 14-hour flight from Japan caused a blood clot to form in his knee, which ultimately traveled to the lung, causing death. The plaintiff further asserted that the occurrence constituted an "accident" such that she was entitled to recover under the policy. The Supreme Court granted the plaintiff's motion for summary judgment against INA. We reverse.
The beneficiary of an insurance policy bears the burden of proving that the death of the insured was covered by the terms of the policy (Plotkin v Disability Cas. Inter-Insurance Exch., 27 A.D.2d 719). To receive benefits under the policy in question, the plaintiff was required to establish that the insured's immobilization during the airplane trip was an "accident", and that it was the "independent and direct" cause of death. In order to determine whether an occurrence is an accident, one must look to the casualty from the viewpoint of the insured and determine whether it was unexpected, unusual and unforeseen (Nallan v Union Labor Life Ins. Co., 42 N.Y.2d 884). Whether an occurrence constitutes an "accident" is generally for the trier of fact to determine (Lareau v Order of United Commercial Travelers, 5 A.D.2d 734, affd 6 N.Y.2d 764). Furthermore, under the circumstances of this case the issue of whether or not the occurrence caused the insured's death is also a question of fact for the jury (see, Papa v Travelers Ins. Co., 92 A.D.2d 825; Beece v Guardian Life Ins. Co., 128 A.D.2d 493, lv denied 69 N.Y.2d 612). Since triable issues of fact exist, summary judgment should not have been awarded to the plaintiff against INA. Mangano, J.P., Thompson, Brown and Kunzeman, JJ., concur.