# Weil v. Federal Kemper Life Assurance Co.

> California Supreme Court · January 31, 1994 · 7 Cal. 4th 125

URL: https://www.frixlaw.com/law-library/cases/2609839

## Case

- **Full name:** LOLA BROWN WEIL Et Al., Plaintiffs and Respondents, v. FEDERAL KEMPER LIFE ASSURANCE COMPANY, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** January 31, 1994
- **Citations:** 7 Cal. 4th 125; 27 Cal. Rptr. 2d 316; 94 Daily Journal DAR 1334; 866 P.2d 774; 32 A.L.R. 5th 789; 94 Cal. Daily Op. Serv. 799; 1994 Cal. LEXIS 11
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** George, Mosk
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2609839

## Opinion text

7 Cal.4th 125 (1994)
866 P.2d 774
27 Cal. Rptr.2d 316
LOLA BROWN WEIL et al., Plaintiffs and Respondents,
v.
FEDERAL KEMPER LIFE ASSURANCE COMPANY, Defendant and Appellant.
Docket No. S029652.
Supreme Court of California.
January 31, 1994.
*129 COUNSEL
Galton & Helm, Nancy A. Jerian and Daniel W. Maguire for Defendant and Appellant.
Richard E. Barnsback, Phillip E. Stano, LeBoeuf, Lamb, Leiby & MacRae, Rita M. Theisen and Jennifer Beckett as Amici Curiae on behalf of Defendant and Appellant.
Wylie A. Aitken, Richard A. Cohn and Darren O'Leary Aitken for Plaintiffs and Respondents.
OPINION
GEORGE, J.
In this case we must determine whether a life insurance policy covering loss of life occurring as the direct result of bodily injury inflicted solely by "external, violent and accidental means" provides coverage when the insured's voluntary ingestion of cocaine resulted in a lethal overdose. Plaintiffs, beneficiaries of the insured, contend that the drug overdose was accidental and therefore that the policy provides coverage. Because the insured's voluntary ingestion of an illegal and dangerous substance caused his death, defendant insurer contends death did not result from bodily injury inflicted solely by "accidental means," within the terms of the insurance policy.
We conclude, first, that the distinction in policy language between "accidental means" and "accidental results," recognized in our prior decisions, should be preserved, and second, that the voluntary ingestion of a known hazardous and illegal substance does not provide a basis for coverage within the terms of an insurance policy affording coverage for death by "accidental *130 means." Accordingly, we reverse the judgment of the Court of Appeal affirming the trial court's entry of summary judgment in favor of plaintiffs, and direct the Court of Appeal to remand this action to the trial court.
I
On April 14, 1975, defendant Federal Kemper Life Assurance Company issued a life insurance policy to the employer of Michael P. Weil, the deceased, naming Weil as the insured. The policy provided insurance on Weil's life, affording a benefit of $100,000. The policy included an "Additional Accidental Death Benefit" supplementary rider, affording an additional benefit of $100,000 in the event the insured's death occurred solely by accidental means and no other terms in the "rider" excluded coverage based upon the circumstances of the death. [1] Plaintiffs Lola and Michelle Weil (Michael Weil's mother and sister, respectively) are the beneficiaries named in the policy.
The supplementary rider to the policy provides in pertinent part as follows: "BENEFITS — The Company agrees, subject to the provisions of this Policy, to immediately pay to the Beneficiary or Beneficiaries, in addition to the other benefits provided by this Policy, the amount of additional accidental death benefit specified in the Policy Specifications, if due proof is furnished to the Company at its Home Office that the Insured, while this Policy is in full force and effect, has suffered the loss of life as the direct result of bodily injury, independent of all other causes, effected solely through external, violent and accidental means, as evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy), and that the date of death occurred within ninety days after such injury." (Italics added.) In another section, the rider also provides in relevant part: "RISKS NOT ASSUMED — The Company shall not be liable for any payment hereunder if the Insured's death: ... [¶] B. Results directly or indirectly from any of the following causes: [¶] ... [¶] (2) suicide, sane or insane, or any attempt thereat; [¶] ... [¶] (4) committing an assault or felony; [¶] ... or [¶] (6) disease or bodily or mental infirmity or medical or surgical treatment therefor...." [2]
Michael Weil died on August 17, 1985, in a hotel room in San Francisco. The cause of death was described on the death certificate as acute cocaine *131 poisoning. Defendant paid the $100,000 basic benefit provided in the policy to plaintiffs as beneficiaries, but denied plaintiffs' claim for the additional $100,000 benefit, described in the accidental death supplementary rider, on the grounds that Mr. Weil's death did not occur solely by accidental means within the meaning of the policy, and fell within the policy exclusion for a death resulting directly or indirectly from the commission of a felony.
On March 31, 1987, plaintiffs brought an action against defendant, seeking declaratory relief as well as damages for breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of Insurance Code section 790.03, subdivision (h).
On June 30, 1989, plaintiffs moved for summary judgment or summary adjudication of issues. In contending that Mr. Weil's death constituted death by accidental means as a matter of law, plaintiffs advanced alternative factual positions. They asserted that, even if the cause of death had been acute cocaine poisoning from voluntary ingestion of cocaine, as indicated by the statements in the death certificate and other reports produced by defendant, Mr. Weil's death occurred by accidental means within the meaning of the policy, because he did not intend to injure himself or cause his own death. Alternatively, they asserted, a probability existed that "unforeseen acts" intervened to cause Mr. Weil's death, in view of the following circumstances: (1) near the time of his death, Mr. Weil had been prescribed and may have been taking the drug Darvocet (to ameliorate pain caused by gum disease), (2) after death his body was identified by an individual (whom the police subsequently were unable to locate) who was unknown to Mr. Weil's family and coworkers, and (3) Mr. Weil's condominium (located in Santa Clara) had been burglarized during the weekend of his death. Plaintiffs also contended that Mr. Weil's death was caused not by possession of cocaine, a felony (Health & Saf. Code, §§ 11054, subd. (f)(1), 11350), but by ingestion or use of cocaine, a misdemeanor (Health & Saf. Code, § 11055, subd. (b)(4)).
Defendant filed an opposition and, upon obtaining leave of the court, filed its own motion for summary judgment or summary adjudication of issues, on the theories that, as a matter of law, Mr. Weil's death did not result from "accidental means," and, furthermore, that his death resulted directly or indirectly from the commission of a felony. In support of its motions, defendant presented evidence that on the afternoon of Mr. Weil's death, a female prostitute summoned to his hotel room observed that he appeared to be under the influence of drugs, inquired whether that was the case, but *132 received his assurance that he "would be all right." Approximately one hour later, she observed him ingest cocaine from a dish in the bathroom of the hotel room. He then suffered shortness of breath and collapsed, and subsequent attempts by paramedics to revive him proved to be unsuccessful. The medical examination performed on his body revealed no evidence of trauma. Chemical analyses disclosed the presence of cocaine in his system, but no Darvocet. A sample apparently taken from the dish recovered from the hotel bathroom tested positive for cocaine.
The motions were heard and taken under submission on August 25, 1989. In a minute order entered September 19, 1989, the superior court summarily adjudicated that the subject life insurance policy had been issued to the decedent, that its supplementary rider provided an additional benefit of $100,000, and that plaintiffs were entitled to that additional benefit. The court determined as a matter of law that Mr. Weil's death, from an unintentional overdose of cocaine, resulted from "accidental means" within the meaning of the policy. The court also determined that Mr. Weil's death did not result directly or indirectly from the commission of a felony, possession of cocaine, but rather from misdemeanor use of cocaine. Nonetheless, the court denied plaintiffs' motion for summary judgment on the ground that triable issues of fact remained as to whether defendant, in denying the supplemental accidental death benefit, breached the implied covenant of good faith and fair dealing. The court also denied defendant's motion for summary judgment.
Thereafter, plaintiffs dismissed with prejudice their causes of action for breach of the implied covenant of good faith and fair dealing and for violation of Insurance Code section 790.03, subdivision (h). On February 6, 1991, the parties filed a stipulation with the court, requesting that it enter judgment on the remaining cause of action for breach of the insurance agreement and on the request for declaratory relief. That stipulation includes the statement: "All motions were heard on August 25, 1989. At the hearing, all parties stipulated that the motions presented pure questions of law and that the facts were undisputed." The court on February 6, 1991, entered judgment in favor of plaintiffs, declaring their entitlement to the $100,000 additional death benefit under the supplementary rider, and further declaring that no exclusion applied, because Mr. Weil's death did not result directly or indirectly from the commission of a felony.
Defendant appealed, contending that the superior court erred in its interpretation of the coverage clause of the supplementary rider, because the death of an insured caused by his or her voluntary ingestion of an illegal and dangerous substance, such as cocaine, is not the result of an injury occurring *133 solely by "accidental means" within the meaning of such an insurance policy. Defendant also urged that plaintiffs had not established that acts other than Mr. Weil's voluntary ingestion of cocaine had intervened to cause his death, and additionally contended that the exclusion for commission of a felony applied. In a divided decision that produced three separate opinions, the Court of Appeal affirmed the judgment, and we subsequently granted defendant's petition for review.
II
Before this court, defendant renews its argument that the superior court erred in determining that the death of an insured, caused by his ingestion of an illegal and dangerous substance, may be considered the result of accidental means within the meaning of the policy, simply because the insured did not intend to kill himself. Defendant relies upon a series of decisions by this court and the Courts of Appeal, applying similar policy language, that have distinguished policies affording coverage for death resulting from bodily injury effected through "accidental means" from policies providing coverage for "accidental death." In particular, defendant relies upon Hargreaves v. Metropolitan Life Ins. Co. (1980) 104 Cal. App.3d 701 [ 163 Cal. Rptr. 857 ], in which the Court of Appeal concluded that an experienced heroin user, who injected heroin immediately prior to his death, did not die by "accidental means" as defined in the policy insuring his life. ( Id. at p. 708.) [3]
Plaintiffs have two responses. First, they contend that (assuming Mr. Weil died solely as the result of his voluntary ingestion of cocaine) the distinction between the coverage afforded by "accidental means" policies and "accidental death" policies should be abolished. Plaintiffs point out that the distinction between the two types of policies has been the subject of long-standing criticism. They urge that retention of the distinction is inconsistent with the general principle of California insurance law providing that insurance policies generally are to be interpreted in accordance with the reasonable expectations of the ordinary insured — who reasonably would anticipate that both types of policies would provide coverage when death is caused by an "accident." Second, even if the court retains the distinction between "accidental means" and "accidental death" policies, plaintiffs contend that a number of cases have interpreted "accidental means" policies to afford coverage when some unexpected event occurs that joins with the insured's *134 conduct to cause death, and (again assuming death from voluntary consumption) they contend that an unintended drug overdose constitutes such an unexpected event. [4]
Accordingly, in determining whether summary judgment in favor of plaintiffs should be upheld, we shall consider (1) whether the distinction between "accidental means" and "accidental death" policies should be retained, and (2) whether the policy properly should be interpreted to provide coverage for an unintentional death resulting from the voluntary ingestion of an illegal and dangerous substance.
III
(1a) California long has recognized the limiting effect of language in insurance policies providing coverage in the event death occurs by "accidental means." [5] For example, in Rock v. Travelers' Insurance Co. (1916) 172 Cal. 462, 463 [ 156 P. 1029 ], the policy afforded coverage if the death of the insured was the result of "`bodily injury effected directly and independently of all other causes, through external, violent, and accidental means.'" The insured collapsed and died after carrying, with another man, a funeral casket down a flight of stairs. In articulating the difference between insuring against accidental death and insuring against death by accidental means, this court stated: "The policy, it will be observed, does not insure against accidental death or injuries, but against injuries effected by accidental means. A differentiation is made, therefore, between the result to the insured and the means which is the operative cause in producing this result. It is not *135 enough that death or injury should be unexpected or unforeseen, but there must be some element of unexpectedness in the preceding act or occurrence which leads to the injury or death.... `A person may do certain acts, the result of which acts may produce unforeseen consequences and may produce what is commonly called accidental death, but the means are exactly what the man intended to use, and did use, and was prepared to use. The means were not accidental, but the result might be accidental.'" ( Id. at p. 465, italics added; see also Zuckerman v. Underwriters at Lloyd's (1954) 42 Cal.2d 460, 476 [ 267 P.2d 777 ] [noting that, in a proper case, the distinction should be made between "accidental means" and "accidental death"].)
In determining whether the means of death or injury may be said to be accidental when, immediately preceding death, the insured was engaged in a voluntary act, some of our prior decisions have focused upon the presence or absence of a slip, mishap, or mischance — that is, something accidental that happens during the voluntary act, or another accidental event that intervenes to cause death. If such a mishap occurs, then the death may be said to transpire through accidental means. (E.g., Rock v. Travelers' Insurance Co., supra, 172 Cal. 462, 464-468 [means were not accidental where no mishap occurred while the insured carried the casket downstairs, causing his collapse and death]; Ogilvie v. Aetna Life Insurance Co. (1922) 189 Cal. 406, 409-412 [ 209 P. 26 , 26 A.L.R. 116 ] [no accidental means where a plow operated by the insured made no unusual lurch, sway, or swing, and the insured's fatal heart rupture was caused by strain naturally incident to plowing]; Olinsky v. Railway Mail Assn. (1920) 182 Cal. 669, 670-673 [ 189 P. 835 , 14 A.L.R. 784 ] [means were not accidental where the insured voluntarily swam upstream, overexerting himself against a strong current, and there was no evidence of a slip].)
In making the foregoing determination, a number of California decisions have focused particularly upon whether the insured's voluntary act itself is such that its common, natural, or probable consequence would be to visit injury or death upon the insured. If not, then the death may be considered to have occurred through accidental means. (E.g., Harloe v. California State Life Ins. Co. (1928) 206 Cal. 141, 142 [ 273 P. 560 ] [no accidental means, because the effect, a fatal sunstroke, was a "natural and probable consequence" of the insured's act of repairing a waterline in 110-degree heat]; Postler v. Travelers Ins. Co. (1916) 173 Cal. 1, 3-6 [ 158 P. 1022 ] [no accidental means where the insured's death in gun duel was a natural and probable consequence of drawing a firearm and chasing an armed man while attempting to recover money lost in gambling], overruled on another ground in Zuckerman v. Underwriters at Lloyd's, supra, 42 Cal.2d 460, 474 ; Cox v. Prudential Ins. Co. (1959) 172 Cal. App.2d 629, 635-636 [ 343 P.2d 99 ] *136 [accidental means were present in death of the insured arrestee who escaped from moving police vehicle, landing between front and rear wheels of a truck travelling in the opposite direction, because the insured did not know, and could not reasonably have anticipated, that he would be struck by the wheels]; Rooney v. Mutual Benefit H. & A. Assn. (1946) 74 Cal. App.2d 885, 889-890 [ 170 P.2d 72 ] [recovery permitted where the means employed by the insured (attempting to strike another with his fist) produced effects (the insured's death by hitting his head on the ground after his opponent retaliated by striking him and knocking him down) "`which are not their usual and probable consequences'"]; Losleben v. California State L. Ins. Co. (1933) 133 Cal. App. 550, 554-557 [ 24 P.2d 825 ] [means were accidental where the insured jumped from three-foot-high bench, twisted small intestine, developed peritonitis, and died, because the effect upon the insured, which was not such as ordinarily would follow or be expected from an act of this nature, established that the means producing the injury contained something of an unexpected character]; Davilla v. Liberty Life Ins. Co. (1931) 114 Cal. App. 308, 313-316 [ 299 P. 831 ] [means were accidental where the insured motorcycle policeman swerved to avoid, but hit his head on, a stalled vehicle, because the insured "`could not reasonably have anticipated, and did not intend to produce,'" an act causing his own death]; Horton v. Travelers Ins. Co. (1920) 45 Cal. App. 462, 466-469 [ 187 P. 1070 ] [means were accidental where the insured's death was caused by a dentist's use of contaminated dental instruments; danger was unknown, and the introduction of germs causing blood poisoning is not a natural and probable consequence of the use of dental instruments by a dentist].)
Whether a court's decision has focused solely upon the absence of a slip, mishap, or mischance in the performance of, or in intervention of, the insured's voluntary act, or also upon whether the voluntary act is such that its common, natural, or probable consequence is fatality or serious injury, it is clear that California cases in a variety of factual settings have interpreted policies affording coverage for death effected through accidental means to preclude coverage for voluntary and intentional conduct that results in unintended death.
In several diversity jurisdiction cases, the United States Supreme Court also expressly has recognized the distinction between policies affording coverage for accidental death and coverage arising only where death is caused by accidental means. ( Landress v. Phoenix Ins. Co. (1934) 291 U.S. 491, 495-498 [ 78 L.Ed. 934, 936-938 , 54 S.Ct. 461 , 90 A.L.R. 1382 ]; Mutual Accident Association v. Barry (1889) 131 U.S. 100, 121-122 [ 33 L.Ed. 60, 66-67 , 9 S.Ct. 755 ].) In Landress v. Phoenix Ins. Co., supra, 291 U.S. 491, 495 [ 78 L.Ed. 934, 936 ], the beneficiary, whose insured had died of sunstroke suffered while playing golf, sought recovery under two such policies, *137 one of which, in language nearly identical to that set forth in the subject policy, provided indemnity in the event death should result "directly and independently of all other causes from bodily injuries effected through external, violent and accidental means...."
In response to the beneficiary's argument that death resulting from voluntary exposure to the sun's rays was accidental in the common or popular sense of the term, the majority observed: "[I]t is not enough, to establish liability under these clauses, that the death or injury was accidental in the understanding of the average man — that the result of the exposure `was something unforeseen, unsuspected, extraordinary, an unlooked for mishap, and so an accident,' [citations] — for here the carefully chosen words defining liability distinguish between the result and the external means which produces it. The insurance is not against an accidental result.... The external means is stated to be the rays of the sun, to which the insured voluntarily exposed himself." ( 291 U.S. 491, 495-496 [ 78 L.Ed. 934, 936 ].) The majority thus affirmed the decision of the lower court that the beneficiary was not entitled to recover on the policy. ( Id. at p. 498 [78 L.Ed.2d at pp. 937-938].)
Cautioning in his dissent that "[t]he attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog" ( 291 U.S. 491, 499 [ 78 L.Ed. 934, 938 ] (dis. opn. of Cardozo, J.)), [6] Justice Cardozo took the position that the insured's demise from sunstroke — the unusual effect of a known cause — was a death by accidental means. "When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means.... So the holder of this policy might reasonably assume." (291 U.S. at pp. 499-500 [ 78 L.Ed. at p. 938 ], fn. omitted.)
Nonetheless, as described above, California decisions have adhered to the distinction recognized by the majority in Landress v. Phoenix Ins. Co., supra , as have the courts in numerous other jurisdictions. (3 Harnett & Lesnick, supra, § 7.03[1], pp. 7-24 to 7-29; id., (1992 supp.) p. 5.) Although, as we have noted, these cases have employed several analytical approaches in determining whether death has resulted from injury caused by accidental means, such decisions have continued to recognize and apply the distinction between death by accidental means and accidental death.
*138 Plaintiffs have urged that we take this opportunity to join "an increasing number" of jurisdictions in rejecting the distinction between "accidental death" and "accidental means." As noted in one treatise, "Many jurisdictions followed the distinction between accidental result and accidental means set forth in Barry and in the Landress majority opinion, and for some time, the rule of distinction remained a clear-cut majority view. But the courts continued to have problems with the distinction, both in applying it and in the outcomes that were reached when it was applied. As neither Barry nor Landress involved a federal question, but were diversity cases with their reference to state law, the courts were not required to follow either case, and they began to question the advisability both of following those decisions and grappling with the distinction. Many jurisdictions found the distinction unworkable and unrealistic, and a trend began away from the distinction and toward Justice Cardozo's dissent." (3 Harnett & Lesnick, supra, § 7.02[4], pp. 7-20 to 7-21, fns. omitted; see Annot., Death or Injury From Taking Illegal Drugs or Narcotics as Accidental or Result of Accidental Means Within Insurance Coverage (1972) 41 A.L.R.3d 654 , 657; Annot., Death or Injury Resulting From Insured's Voluntary Act in Taking Overdose of Medicine, Drugs, or the Like, as Caused by Accident or Accidental Means (1957) 52 A.L.R.2d 1083 , 1086-1087; Annot., Insurance: "Accidental Means" as Distinguishable From "Accident," "Accidental Result," "Accidental Death," "Accidental Injury," etc. (1947) 166 A.L.R. 469 , 471, fn. 7, 473, fn. 20.)
It appears that, as of 1992, 22 jurisdictions, including California, expressly recognized the distinction between "accidental means" and "accidental death" (3 Harnett & Lesnick, supra, § 7.03[1], pp. 7-24 to 7-29; id., (1992 supp.) p. 5), whereas 25 jurisdictions expressly have rejected or repudiated this distinction. (3 Harnett & Lesnick, supra, § 7.06[1], pp. 7-112 to 7-116.) In addition, the United States Court of Appeals, First Circuit, in developing federal common law (for application to Employee Retirement Income Security Act (ERISA) governed insurance policies), recently indicated it will follow the line of cases that decline to draw the foregoing distinction. ( Wickman v. Northwestern Nat. Ins. Co. (1st Cir.1990) 908 F.2d 1077, 1086 .) Thus, California now appears to be in a slight minority in recognizing a distinction between the coverage provided by "accidental means" and "accidental death" policies.
Plaintiffs emphasize the courts' obligation to interpret and apply "accidental means" coverage in a manner consistent with the reasonable expectations of insureds, urging that if this court were to repudiate the distinction between coverage for "accidental means" and "accidental death," the result would reflect more clearly the ordinary person's understanding of such policy language, as suggested by Justice Cardozo. ( AIU Ins. Co. v. Superior Court *139 (1990) 51 Cal.3d 807, 822 [ 274 Cal. Rptr. 820 , 799 P.2d 1253 ] [coverage clauses interpreted broadly to protect objectively reasonable expectations of the insured]; see also Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264-1265 [ 10 Cal. Rptr.2d 538 , 833 P.2d 545 ] [uncertainties interpreted to protect objectively reasonable expectations of the insured]; Southwestern Funding Corp. v. Motors Ins. Corp. (1963) 59 Cal.2d 91, 94 [ 28 Cal. Rptr. 161 , 378 P.2d 361 ] [any uncertainties resolved against the insurer and in favor of imposing liability].)
Nonetheless, we must bear in mind that normally the content of an insurance policy is within the control of the parties. Unless the limitation of coverage of "accidental means" policies to a narrower class of cases than is covered by "accidental death" insurance would violate a particular statute or other express public policy, it is not our proper role to mandate that the two types of policies be interpreted as coextensive. By repudiating the distinction, the court in effect would be ignoring the fact that the policy does employ the word "means." (3 Harnett & Lesnick, supra, § 7.03[2], pp. 7-30 to 7-31.)
Several cases from other jurisdictions have admonished that disregarding the "means" language by equating it with accidental results does not take account of the contract language ( Linden Motor Freight Co., Inc. v. Traveler's Ins. Co. (1963) 40 N.J. 511 [ 193 A.2d 217, 224 ] [also observing that the average policyholder would appreciate that an "accidental means" policy refers to accidental cause and not to every unforeseen, unexpected, unusual loss, especially since the premium charged is small ( id., 193 A.2d at pp. 224-225)]; McGinley v. John Hancock Mut. Life Ins. Co. (1936) 88 N.H. 108 [ 184 A. 593, 595 ]) — or requires a forced or strained construction of contract language ( John Hancock Mut. Life Ins. Co. of Boston v. Plummer (1942) 181 Md. 140 [ 28 A.2d 856, 857 ]; Gidlund v. Benefit Ass'n. of Ry. Employees (1941) 210 Minn. 176 [ 297 N.W. 710, 712 ]; see 3 Harnett & Lesnick, supra, § 7.03[2], pp. 7-31 to 7-33).
(2) Moreover, although plaintiffs contend that the phrase "accidental means" is "inherently ambiguous and creates a reasonable doubt as to the peril insured against," with regard to the use of this specific phrase in a number of insurance policies this court "`has consistently, uniformly and repeatedly interpreted insurance policies providing benefits for death or injury effected through "accidental means" without once having suggested that the insuring words were ambiguous. The Courts of Appeal similarly have failed to find any ambiguity or uncertainty in the coverage provided by such policies....' [Citation.]" ( Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal. App.3d 701, 705 .) In Rock v. Travelers' Insurance Co., supra, *140 172 Cal. 462 , we termed the language of such policies "plain." ( Id. at p. 467.)
(1b) It also is the case that in jurisdictions (such as California) that have developed the distinction between "accidental means" and "accidental results," policies requiring only that there be proof of accidental death have been construed broadly, "such that the injury or death is likely to be covered unless the insured virtually intended his injury or death," perhaps because the insurer could have limited its liability by employing the "accidental means" language. (3 Harnett & Lesnick, supra, § 7.05[3], p. 7-96; e.g., Collins v. Nationwide Life Ins. Co. (1980) 409 Mich. 271 [ 294 N.W.2d 194, 196-197 ].) In view of these considerations, we do not consider it appropriate at this late date to reinterpret such policy language in order to eradicate this distinction.
(3) The argument also has been made that we should abolish the distinction in order to resolve the apparent dichotomy that has developed in California cases in viewing the test of "accidental means" as involving either (1) a scrutiny of the circumstances surrounding the insured's voluntary act for evidence of an accidental element or an intervening accident, or (2) a scrutiny of the insured's voluntary act in terms of its consequences, in deciding the accidental nature of the act based upon the probability of those consequences.
As described above, certain of this court's early decisions adopted and employed the concept that the means are not accidental when the insured performs a voluntary act, unless something accidental (slip, mishap, or mischance) happens during the act, or another accidental event intervenes, causing death. (E.g., Ogilvie v. Aetna Life Insurance Co., supra, 189 Cal. 406, 409-412 ; Olinsky v. Railway Mail Assn., supra, 182 Cal. 669, 670-673 ; Rock v. Travelers' Insurance Co., supra, 172 Cal. 462, 465 .) A number of other decisions by this court and the Courts of Appeal focus or base their holdings upon a standard indicating that the means are not accidental when the natural, probable, or to-be-expected result of the voluntary behavior is to bring death or injury upon the insured. (E.g., Harloe v. California State Life Ins. Co., supra, 206 Cal. 141, 142 ; Cox v. Prudential Ins. Co., supra, 172 Cal. App.2d 629, 635-636 ; Rooney v. Mutual Benefit H. & A. Assn., supra, 74 Cal. App.2d 885, 889-890 ; Losleben v. California State L. Ins. Co., supra, 133 Cal. App. 550, 554-557 ; Davilla v. Liberty Life Ins. Co., supra, 114 Cal. App. 308, 313-316 .)
Essentially, the approach embodied in the latter line of cases is to consider the probability of the result in deciding whether the voluntary action of the *141 insured preceding the injury can constitute "accidental means." This consideration has been criticized, because it appears inconsistent with the cases determining that "accidental means" are present only where there occurs some slip, mishap, or mischance in the performance (or intervention) of a voluntary act (see Comment, The Judicial Approach to "Accidental Means" Policies in California, supra, 13 Hastings L.J. 255 , 260-272), and because such a consideration appears effectively to merge with the "accidental result" test employed in cases reviewing coverage under accidental death policies. ( Ibid.; 3 Harnett & Lesnick, supra, § 7.04[3], pp. 7-45 to 7-49.)
Nonetheless, we believe that in determining whether the means properly may be described as accidental, both considerations validly may be invoked in particular cases. In Landress v. Phoenix Ins. Co., supra, 291 U.S. 491, 496-497 [ 78 L.Ed. 934, 936-937 , 54 S.Ct. 461 ], the majority, although relying upon the absence of any slip, mishap, or mischance in concluding the insured's death by sunstroke did not constitute death by accidental means, expressly did not foreclose the possibility that in other circumstances an unforeseen, and hence accidental, result might give rise to the inference that the external means also were accidental. ( Id. at pp. 496-497 [78 L.Ed. at pp. 936-937].) Moreover, although it has been suggested that the standard propounded in Justice Cardozo's dissent would find an effect to be accidental as a matter of law if it is not the natural or probable consequence of the means that produced it ( Id., at pp. 500-501, fn. 2 [ 78 L.Ed. at p. 939 ] (dis. opn. of Cardozo, J.); see Linden Motor Freight Co., Inc. v. Traveler's Ins. Co., supra, 40 N.J. 511 [ 193 A.2d 217, 222 ]), under our prior decisions the improbability of the outcome or effect is simply one consideration that must be taken into account in determining whether a death or injury resulted from "accidental means." In our jurisdiction, as described more fully below, the court in Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal. App.3d 701 , without apparent inconsistency, incorporated both approaches, basing its decision that a death by heroin overdose was not covered under an "accidental means" policy upon the voluntariness of the act of injecting the heroin, the absence of any slip, mishap, or mischance, and the circumstance that the deceased knew or should have known that death was a "probable," "not unexpected" consequence of his voluntary act. ( Id. at p. 708.) Thus, even when the evidence does not disclose an intervening accident or an accidental element, it is appropriate, in determining whether death occurred by accidental means, to consider whether an effect is not the natural, probable, or expected consequence of the means that produced it. (See Losleben v. California State L. Ins. Co., supra, 133 Cal. App. 550, 554-557 ; Davilla v. Liberty Life Ins. Co., supra, 114 Cal. App. 308, 313-316 .)
IV
(4a) We now turn to the question whether a death arising from a voluntary, self-inflicted, but unintentional overdose of an illegal substance *142 may be considered "the direct result of bodily injury, independent of all other causes, effected solely through external, violent and accidental means," as described in the supplementary rider involved in the present proceedings.
In conformity with prior California decisions, the court in Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal. App.3d 701 , applied the distinction between "accidental means" and "accidental death," synthesizing the two approaches that had been developed in those cases for the purpose of ascertaining whether the means by which death had occurred were accidental. In concluding that the death of an experienced heroin user by overdose did not occur by "accidental means" within the meaning of a life insurance policy, the court based its decision upon (1) the voluntariness of the act (the heroin user "obviously intentionally injected himself with heroin, a death dealing substance"), (2) the absence of any slip, mishap, or mischance ("there is absolutely no evidence justifying an inference that in utilizing the means (hypodermic needle) there were other acts (or act) containing unforeseen or unexpected character unintentionally done by him"), and (3) the circumstance that death reasonably could be anticipated ("he knew or should have known that illicit use of heroin is injurious to the body and as a practical matter when illicitly used in whatever amount a probable result not unexpected is death"). ( Id. at p. 708.)
Assuming, for the moment, that we accept the formulation of the court in Hargreaves that the means may not be considered accidental if the insured knew or should have known that death or injury therefrom was probable and not unexpected, it is apparent under the present line of California decisions (including Hargreaves ) that recognize the distinction between coverage for death by "accidental means" and coverage for "accidental death," that the death of an insured caused by his or her voluntary consumption of an illegal and dangerous substance, without mishap, would not be considered the result solely of external, violent, and accidental means. Accordingly, defendant is correct in asserting that the superior court erred in determining that, simply because death itself was unintended, an unintentional overdose may comprise "accidental means" within the meaning of such a policy.
We are aware of the seemingly contrary decision in Pilcher v. New York Life Ins. Co. (1972) 25 Cal. App.3d 717 [ 102 Cal. Rptr. 82 ], relied upon by the superior court in the present case. Noting that, in those jurisdictions that have repudiated the distinction between "accidental means" and "accidental death," the insurer frequently has been held liable for an unintentional drug overdose, the court in Pilcher held that death by a self-administered overdose of heroin constituted "accidental death," and therefore held the insurer liable under the accidental death policy at issue in that case. ( Id. at pp. *143 725-727.) The court went on to suggest that, whether a policy covers death by "accidental means" or, instead, "accidental death," an unintentional death resulting from an overdose of drugs would be covered. The court also asserted that, even in jurisdictions still applying the means test, the decisions "have held consistently" that if the insured took (as one decision described it) a greater quantity of a substance "`than intended or realized,'" then death is by "accidental means" and the insurer is liable. ( Id. at p. 723.) The foregoing suggestions by the Court of Appeal in Pilcher with regard to the coverage of an "accidental means" policy are only dicta, however, because the court had before it a policy covering "accidental death." In any event, as we shall explain, we disagree with those suggestions.
The decisions that have interpreted policies insuring against death caused by "accidental means," in the situation in which an insured voluntarily, knowingly, and intentionally self-administers a given drug (whether prescribed or illegal), resulting in an unintentional fatal overdose, generally have applied one or the other of two distinct analyses in determining whether "accidental means" are present. The court either has inquired whether the insured intended or expected to ingest the quantity of the substance actually taken, or has inquired whether the insured was ignorant of the lethal nature of the amount taken (even if the insured intended to consume the quantity actually taken).
Occasionally, a decision has discussed both of these considerations. For example, in Metropolitan Life Ins. Co. v. Main (5th Cir.1967) 383 F.2d 952 , the insured, accustomed to taking one Medomin (a prescribed barbiturate sleeping pill) each night, celebrated a promotion by having four drinks of whiskey, and, having become confused, took four to eight Medomin, with a lethal result. Applying Connecticut law, the court held that the insured's death occurred by "accidental means," because he did not intend to take that dosage of Medomin and did not intend to ingest an amount of both substances sufficient to create the synergistic effect that brought about his death. ( Id. at p. 960.)
More typically, however, courts, in arriving at a determination whether the means were accidental, have based their decisions upon only one of the foregoing two considerations. (See Feldmann v. Connecticut Mut. Life Ins. Co. etc. (8th Cir.1944) 142 F.2d 628, 633 [applying prior New York law, the court held that death occurred by accidental means where the insured, accustomed to taking one capsule, had taken fifteen capsules of Nembutal, allegedly by mistake]; compare with Hawkins v. New York Life Ins. Co. of New York, N.Y. (1954) 176 Kan. 24 [ 269 P.2d 389, 398 ] [the insured died by accidental means where she was unaware that the quantity of barbiturates *144 taken was a lethal dose]; Hodgson v. Preferred Acc. Ins. Co. (1917) 100 Misc. 155 [ 165 N.Y.S. 293 , 297-298] [the insured was considered to have died by accidental means where he was unaware the amount of morphine taken would produce a harmful effect]; Dezell v. Fidelity & Casualty Co. (1903) 176 Mo. 253 [ 75 S.W. 1102, 1102-1104 ] [the insured was considered to have died by accidental means where he intentionally and knowingly took morphine but did not intend or expect that death would result].) [7]
Nonetheless, a number of decisions, although recognizing that the insurer would be liable if the insured by accident took a greater quantity of a particular drug than he or she intended, have absolved the insurer in the situation in which the insured knowingly and intentionally took a certain quantity but simply was ignorant of the circumstance that death probably would ensue from ingesting that amount. Thus, in Carnes v. Iowa Traveling Men's Ass'n. (1898) 106 Iowa 281 [ 76 N.W. 683 ], the court observed that the insured's death by morphine overdose could be accounted for in two ways: either he had taken more morphine than he intended, or he had intended to take the amount he did, but misjudged its effect. Because the plaintiff was unable to rule out the second possibility, she did not meet her burden of establishing coverage under the policy. ( Id., 76 N.W. at pp. 684-685; see also Murphy v. Western & Southern Life Ins. Co. (Mo. App. 1953) 262 S.W.2d 340, 342-343 [where there was no evidence that the insured took an excessive amount of paraldehyde because his foot slipped or because he was drunk and believed the liquid was whiskey, his ignorance of the effect of taking an amount in excess of that prescribed did not supply the element of unexpectedness that would render accidental the means of death]; Aubuchon v. Metropolitan Life Ins. Co. (8th Cir.1944) 142 F.2d 20, 26 [under Missouri law, if the insured intended to consume the number of Veronal (barbiturates) he ingested, death did not occur by accidental means, even though the insured did not anticipate death would result from taking that amount].)
In general, the more recent cases in those jurisdictions that continue to recognize the distinction between "accidental means" and "accidental results," have adopted the view that, where it appears an insured has consumed *145 or administered the quantity of a particular drug that he or she intended to ingest, death may not be said to have occurred by "accidental means," even if the insured was ignorant that that amount constituted a harmful overdose. This conclusion most commonly has been reached where possession of the substance in question is illegal.
In our own jurisdiction, the decision in Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal. App.3d 701 , essentially adopts this approach. The conclusion of the appellate court that the death of an experienced heroin user by heroin injection did not constitute death by "accidental means" rested in part upon the determination that the drug apparently could not have been mistaken for a harmless substance, and upon the plaintiff's not having contested the trial court's finding that the heroin injection was "`done in the usual manner without any mishap.'" ( Id. at p. 708.)
The court in Hargreaves additionally concluded, because of the high probability that serious consequences would arise from the conduct of the insured, that the means of death were not accidental. The court stated that the heroin user "knew or should have known that illicit use of heroin is injurious to the body and as a practical matter when illicitly used in whatever amount a probable result not unexpected is death...." ( Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal. App.3d 701, 708 .) We do not agree with, or adhere to, the pronouncement of the court in Hargreaves that death or serious injury is a probable result of ingestion of controlled substances, and believe it more accurate (taking into account the language employed in earlier California decisions) to describe such a result as common, natural, or substantially likely. The standard invoked — whether the insured knew or should have known that death or injury was common, natural, or substantially likely — precludes coverage even if, on the particular occasion, the insured may not have realized he or she was injecting a lethal overdose. This standard is adopted from, and is consistent with, the principles repeatedly employed by California appellate decisions in analyzing diverse factual contexts involving insurance coverage claims in nondrug cases. (See, e.g., Cox v. Prudential Ins. Co., supra, 172 Cal. App.2d 629, 635-636 ; Rooney v. Mutual Benefit H. & A. Assn., supra, 74 Cal. App.2d 885, 890 ; Davilla v. Liberty Life Ins. Co., supra, 114 Cal. App. 308, 316 ; Horton v. Travelers Ins. Co., supra, 45 Cal. App. 462, 473-474 [emphasizing the distinction between a voluntary act and a voluntary exposure to a known danger].)
In other jurisdictions, a similar analysis has developed. In Lloyd v. First Farwest Life Ins. Co. (1989) 54 Wn.App. 299 [ 773 P.2d. 426, 427 ], the court held that a policy providing coverage for bodily injury caused by accident *146 did not afford coverage for a ruptured cerebral aneurysm resulting from the insured's deliberate, nonmedical inhalation of cocaine. ( Id., 773 P.2d at p. 429 .) Without indicating whether the claimant personally had been aware of the risks, the court concluded it was not necessary that the claimant intend or expect the injurious consequences of her actions; rather, all that was required, in order for coverage to be precluded, was proof that the claimant knew or should have known "facts from which a prudent person would conclude that the injurious consequences are reasonably forseeable." ( Id., 773 P.2d at p. 428 ; see also Whiteside v. New York Life Ins. Co. (1972) 7 Wn.App. 790 [ 503 P.2d 1107, 1109-1110 ] [insured, who had a long history of drug use and died by self-injecting an overdose of methedrine and morphine, held not to have died by accidental means — which the court held are not present when a deliberate act is performed, unless an additional independent and unforeseen event intervenes].)
Similarly, in Jackson v. National Life & Accident Insurance Co. (1973) 130 Ga. App. 208 [ 202 S.E.2d 711, 712 ], the court held that the insured, who had died by means of an injection of a "massive dose" of heroin and whose body contained needlemarks indicating prior heroin use, did not die by "accidental means" within the coverage of the policy. (202 S.E.2d at pp. 712-713.) The court noted that, in view of the circumstances involved in heroin use, which include the use of unsterilized needles and utensils, often in unsanitary locales, as well as the inability of the user to determine the strength or purity of a given dosage, "death is a common experience and the user may reasonably expect it." ( 202 S.E.2d at p. 712 .) The court concluded that a lethal injection by such a user is not an unforeseen, unexpected, unusual, or unintentional act, and therefore the injury did not result from "accidental means." ( Ibid. )
In Gordon v. Metropolitan Life Insurance Company (1970) 256 Md. 320 [ 260 A.2d 338 , 41 A.L.R.3d 648 ], the court concluded the insured did not die by "accidental means," based upon the circumstances that (1) the insured had a history of narcotics addiction and died by self-administering heroin as well as an excessive dose of Doriden, a sedative, (2) there was no claim a mishap had occurred in the act of injection, and (3) evidence was presented that narcotics users are aware of the substantial risk involved in self-administering heroin. (260 A.2d at pp. 338-341.) Noting the probability that the combination of heroin and Doriden caused the fatality, the court observed that the possibility the decedent may have been unaware of the risk in taking that combination of drugs was irrelevant, because heroin by itself carried a "well known and substantial risk." ( 260 A.2d at p. 339 .) The court also observed that, although in some cases there may not be any way to distinguish "accidental means" from "accidental results," in a case where an *147 insured intentionally administers an illegal substance that possesses a "serious foreseeable risk," the distinction is clear and death cannot be said to have occurred by "accidental means." ( 260 A.2d at p. 340 ; see also Prudential Ins. Co. of America v. Gutowski (1955) 49 Del. 233 [ 113 A.2d 579, 585-586 , 52 A.L.R.2d 1073 ] [the trial court erred in submitting to the jury the issue whether death occurred by "accidental means," because the evidence indicated the insured died after ingesting voluntarily — and without mishap — a large overdose of barbiturates].) [8]
Although a number of decisions have held otherwise, there appears to be a developing tendency, which we now endorse, expressed in the Hargreaves case ( Hargreaves v. Metropolitan Life Ins. Co., supra, 104 Cal. App.3d 701 ) from our own jurisdiction and in decisions from other jurisdictions, for courts to conclude that a fatal reaction to the voluntary, deliberate, and "nonmedical" taking of an illegal substance, without mishap, should not be considered death by "accidental means," even when the insured may not have had personal knowledge that death was common, natural, or substantially likely as the result of ingesting the amount actually taken. It is readily *148 apparent that the risks attending the consumption of such substances are so great that death must be considered a common, natural or substantially likely consequence. As suggested by the dissent in the Court of Appeal in the present case, because the user may not be certain of the purity or strength of a particular dosage of an illegal substance, the possibility of overdose is a closely related consequence of ingestion, inhalation, or injection, and the circumstance of the overdose itself does not operate as an independent or intervening means of death in the sequence of causation from the initial voluntary act to the death resulting from it. Therefore, the insured is not entitled to coverage for such a death under an "accidental means" policy, because he or she should know that death is a common, natural, or substantially likely result of such activity.
V
(5a) Having concluded there was double indemnity coverage in the present case only if death was caused by an accident unrelated to the insured's voluntary ingestion of cocaine, we now consider whether plaintiffs are entitled to summary judgment based upon that theory or instead there remains a triable issue of material fact upon that issue.
(6) The burden is upon the plaintiffs to establish that the occurrence forming the basis of their claim is within the basic scope of insurance coverage. ( Royal Globe Ins. Co. v. Whittaker (1986) 181 Cal. App.3d 532, 537 [ 226 Cal. Rptr. 435 ]; see Garvey v. State Farm Fire & Casualty Co. (1989) 48 Cal.3d 395, 406 [ 257 Cal. Rptr. 292 , 770 P.2d 704 ]; Clemmer v. Hartford Ins. (1978) 22 Cal.3d 865, 880 [ 151 Cal. Rptr. 285 , 587 P.2d 1098 ].) Therefore, plaintiffs bore the burden of establishing that the death of the insured was caused by an accident unrelated to his voluntary ingestion of cocaine. ( Ells v. Order of United etc. Travelers (1942) 20 Cal.2d 290, 304 [ 125 P.2d 457 ]; Rock v. Travelers' Insurance Co., supra, 172 Cal. 462, 464 ; see Zuckerman v. Underwriters at Lloyd's, supra, 42 Cal.2d 460, 472-473 .
(5b) Plaintiffs attempted to establish that the drug Darvocet caused or contributed to Mr. Weil's death, offering evidence that, several weeks prior to his death, that particular drug had been prescribed for Mr. Weil, and the day before his death he had informed his mother he was taking the drug. This evidence is not uncontroverted, however. The chemical analysis of bodily tissues furnished by defendant demonstrates that no trace of Darvocet was detected in Mr. Weil's system, even though, as metabolized in the body, its half-life is of sufficient duration to have rendered its presence detectable at the time the analysis was performed. The only substance that appeared in his system in a lethal quantity was cocaine.
*149 Plaintiffs also attempted to demonstrate that, even if Mr. Weil's death was caused by ingestion of a lethal overdose of cocaine, that occurrence was not the result of his own voluntary act in taking the drug, but resulted from unknown external forces. In support of this claim, plaintiffs rely upon the circumstances that, at the time of Mr. Weil's death, he was in the company of a prostitute, that the person who identified Mr. Weil's body and claimed to know him was unknown to his family and business associates and subsequently could not be located by the police, and that Mr. Weil's condominium, located in another city, was burglarized sometime during the weekend Mr. Weil expired in San Francisco.
(7)(See fn. 9.), (5c) Plaintiffs' evidence is controverted by the report of the coroner's investigators' conversation with the prostitute who had been summoned to Mr. Weil's hotel room approximately two hours prior to his death. [9] She told the investigators that, upon meeting Mr. Weil at the door, she noticed he appeared intoxicated, prompting her query whether he was under the influence of drugs, to which he responded he "would be all right." She reported that some time later, Mr. Weil left the bedroom and entered the bathroom, where she observed him place a white powder in his mouth from a blue dish in the sink. She also reported that Mr. Weil soon began to experience shortness of breath, causing her to be fearful and to leave. She did not state that anyone else was in the room prior to her departure.
This evidence, considered with proof that a substantial amount of cocaine was present in Mr. Weil's system, that a sample (presumably taken from the blue dish) tested positive for cocaine, and that there was no external or internal trauma to the body (except those consistent with an overdose of cocaine), precludes any conclusive finding that Mr. Weil's death resulted solely from external means or from any agency other than his own voluntary and intentional ingestion of a substantial quantity of cocaine. Accordingly, plaintiffs are not entitled to summary judgment on the theory that death occurred by "accidental means."
*150 VI
(4b) Decisions of this court and the Courts of Appeal have not extended coverage, under policies covering death by "accidental means," to those situations in which the nature of the insured's voluntary act is such that he or she reasonably could anticipate that death or great bodily harm is a common, natural, or substantially likely consequence, and a number of decisions in various jurisdictions expressly have disallowed coverage, under policies similar to the present one, for the deliberate, intentional ingestion of illegal substances that an insured knows, or should know, involve a substantial likelihood of death. Accordingly, we conclude the superior court erred in determining that the insured's death, arising from a voluntary and intentional act that resulted in an unintentional overdose of cocaine, was caused by "accidental means" within the meaning of the insurance policy. For the foregoing reasons, we reverse the judgment of the Court of Appeal and direct that court to remand this action to the trial court.
Lucas, C.J., Panelli, J., Arabian, J., and Baxter, J., concurred.
MOSK, J.
I dissent.
In my view we should grasp this opportunity to abrogate the archaic and arcane distinction between "accidental death" and "death by accidental means," and thereby join the modern trend in the majority of our sister states which have either abolished the distinction or refused to recognize it in the first place. I further believe that we should adopt an analysis recently devised by the federal courts for determining when a death is "accidental" for insurance law purposes, and that under that test the death of the insured herein was accidental and his beneficiaries are entitled to recover under his policy's double indemnity clause.
Although there are problems with the record in this case, certain basic facts appear to be undisputed. In 1975 defendant insurance company issued a life insurance policy to Ingold-Weil, Inc., insuring the life of its employee, Michael P. Weil, then 22 years of age. The policy was a five-year term renewable to age sixty-five. Its face amount was $100,000, and for an additional premium it provided an accidental death benefit in the same amount — the traditional double indemnity clause. Ingold-Weil, Inc., was the named owner of the policy and, initially, its sole beneficiary. At some point thereafter, perhaps when the insured left the employ of Ingold-Weil, Inc., [1] the insured's mother and sister were substituted as beneficiaries.
The premiums on the policy were apparently paid without incident for 10 years. In 1985 the insured died in San Francisco at the age of 32. The death *151 certificate declared that the death was an "accident," that its cause was "acute cocaine poisoning," and that the cause resulted from an "overdose of drugs."
Upon proof of death the insurance company paid the beneficiaries the face amount of the policy, but refused to pay the accidental death benefit. The company denied this coverage on two grounds: first, that the insured's death was not an accidental death within the policy meaning of that term; and second, that the death fell within a policy exclusion for deaths resulting from the commission of a felony.
In the beneficiaries' suit for declaratory relief and other remedies the trial court found against the insurance company on both of the foregoing defenses. The court therefore granted the beneficiaries' motion for summary judgment in the amount of the accidental death benefit, and the Court of Appeal affirmed.
I
In this court the insurance company reiterates the two grounds on which it denied coverage. First, the company contends the policy should be interpreted to provide coverage for accidental death only if the death is also caused by "accidental means." To explain the latter phrase the company urges that when as here death follows from an act of the insured, the policy should be interpreted to mean the death is caused by "accidental means" only if "an unusual, unforeseen and unintended mishap occurs in the performance in the act itself"; if, instead, no such mishap occurs in the "performance" of the act and it is only the "result" of the act — i.e., the insured's death — that is "unusual, unforeseen and unintended," there may be "accidental death" but there is no "death by accidental means" and hence no coverage under the accidental death rider.
As will appear, to a layperson such a reading of the insurance policy in this case would seem fanciful, if not downright bizarre. Yet California case law is said to require it. In order to understand how we came to this clash between common sense and common law, it will be helpful to assume for the moment that this is a case of first impression, and return to first principles.
"While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply." ( Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 [ 10 Cal. Rptr.2d 538 , 833 P.2d 545 ].) Indeed, "All contracts, whether public or private, are to be interpreted by the same rules" (Civ. Code, § 1635).
*152 The Civil Code declares three basic rules for the interpretation of contracts, and hence insurance policies. [2] All three rules serve the same purpose, which is to ascertain and give effect to the mutual intention of the parties as it existed at the time of contracting. (Civ. Code, §§ 1636, 1637.)
The rules differ according to whether the wording of the contract is clear or ambiguous. The majority take the position that the policy language before us is not ambiguous but clear. Let us assume arguendo that it is. The first rule of interpretation declares that when the contractual language is "clear and explicit" and does not lead to an absurdity, "The language of [the] contract is to govern its interpretation" (Civ. Code, § 1638). In reading that language, however, it is further required that "The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning" ( id., § 1644). There are only two exceptions: words "used by the parties in a technical sense," and words with "a special meaning ... given to them by usage" ( ibid. ). These exceptions arise most often in interpreting commercial contracts. [3] And neither exception is operative unless both parties to the contract intend the words to have the same special or technical meaning: the lodestar of contractual interpretation remains "the mutual intention of the parties" ( id., § 1636, italics added).
In the insurance context only one of the parties to the contract — the insurance company or its agent — is likely to know that a policy term has a special or technical meaning in the insurance business, and to intend to so use it. The other party — the purchaser of the policy or the insured — is usually a layperson who does not share that specialized knowledge or intent. It follows that the general rule of the statute, not its exceptions, governs the interpretation of insurance policies: the words of such policies "are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning" (Civ. Code, § 1644), in short, as a layperson would understand them.
This court has repeatedly so held. In Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807 [ 180 Cal. Rptr. 628 , 640 P.2d 764 ], we said it is one of the "established principles" of insurance law that "Words used in an insurance policy are to be interpreted according to the plain meaning which a layman would ordinarily attach to them." In Crane v. State Farm Fire & Cas. Co. (1971) 5 Cal.3d 112, 115 [ 95 Cal. Rptr. 513 , 485 P.2d 1129 , 48 *153 A.L.R.3d 1089], we drew the distinction clearly: "The policy should be read as a layman would read it and not as it might be analyzed by an attorney or an insurance expert." And in AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d 807, 822 , we summed up, "Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning." (Italics added.) The rule is applicable to the case at bar.
The policy in question is in the record, an exhibit to the insurance company's answer to the complaint. The initial printed page of the policy is silent on the present matter, promising only to pay the face amount stated in the page entitled "Policy Specifications." That page, akin to a certificate of coverage, is a typed list of the particular policy benefits and their corresponding premiums. The benefits are: a basic coverage in the amount of $100,000, a waiver of premium in case of disability, and an "ADDITIONAL ACCIDENTAL DEATH" coverage in the amount of $100,000. The words of the policy specifications page are all in block-capital letters. There is no mention of "death by accidental means."
Following several pages reciting the standard provisions of such a policy (e.g., procedures for renewal, conversion and settlement options, and general administrative clauses), two printed riders are attached. The first is the waiver-of-premium benefit.
The second rider is entitled, again in block-capital letters and this time in boldface type, "ADDITIONAL ACCIDENTAL DEATH BENEFIT. It begins with a description of that benefit in the form of a single sentence that runs for 130 words, printed in standard-face, lowercase type. The sentence first reiterates the company's promise to pay the amount of the "additional accidental death benefit" stated in the policy specifications. Eighty-three words into the sentence appears the language relied on by the insurance company in the case at bar, reciting that the company will pay the accidental death benefit on proof that death was caused by injuries "effected solely through external, violent and accidental means, as evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy)." [4]
Next, the rider sets forth an exclusionary clause specifying seven grounds on which the company will not pay the accidental death benefit: i.e., if the *154 death occurs while the insured is serving in armed forces in wartime, or results from war or riot, suicide, operating an aircraft, committing an assault or felony, taking poison or being asphyxiated by gas, or suffering a nonaccidental disease or infection. There is no exclusion for accidental death "not caused by accidental means."
The rider concludes by using the phrase "accidental death benefit" twice more. In the termination-of-benefit clause it declares that "The additional accidental death benefit shall cease to be in force" upon two contingencies, and in the premiums clause it recites that "Additional accidental death benefit premiums are payable" for the life of the policy. (Italics added.)
Equally significant is what the policy does not provide: nowhere in the policy application form or in the policy itself does the insurance company give any definition or explanation of the words it now relies on, viz., "external, violent and accidental means." Accordingly, applying the first rule of interpretation of insurance policies, we must ask what is the "ordinary and popular sense" — rather than the "strict legal meaning" — of the words of the policy. (Civ. Code, § 1644.) In so doing, we must also read the words in their context, "each clause helping to interpret the other." ( Id., § 1641.) And if possible we must interpret the accidental death benefit clause of this policy to make it "operative" and "capable of being carried into effect" ( id., § 1643), i.e., to provide the coverage that the insured intended to buy.
When the policy in the case at bar is so viewed, the conclusion is inescapable: a layperson like this insured would read the policy to provide what it promises to provide — i.e., double indemnity for any "accidental death" in the ordinary and popular sense of those words, unless the death results from a cause expressly listed in the policy's exclusion clause.
The insurance company contends, however, that the insured would realize that the accidental death coverage is further, although impliedly, limited by the "accidental means" language in the policy, and would understand that language in the way the company now defines it, i.e., that the coverage does not include any accidental death that is not also caused by "accidental means." The contention fails on several grounds.
To begin with, on the facts of this case it is very possible that the insured never even saw the actual policy — and therefore never read the "accidental means" language — before he died, or at least until he left the employ of *155 Ingold-Weil, Inc. As noted above, the policy was purchased by Ingold-Weil, Inc., the insured's employer at the time; Ingold-Weil, Inc., was the owner and initially the sole beneficiary of the policy and doubtless paid the premiums. The application form discloses that the insured, Michael Weil, was executive vice-president of Ingold-Weil, Inc. Such "key employee insurance" is not uncommon in the business world. (See, e.g., 2 Appleman, Insurance Law & Practice (1966) § 872, pp. 394-397 [hereafter Appleman].) When an employer purchases a policy of this type, the employee's involvement in the process begins and ends with the application form. The employee reads, fills out, and signs the form, but has no personal interest in the contract itself ( id. at p. 400); the employee therefore has no need to read the actual policy, and typically does not do so.
In the case at bar the insured signed the application form. In that form's section on coverage the figure $100,000 is inserted in the blank space for the face amount, and boxes for "WP" (i.e., "waiver of premium") and "ADB" (i.e., "accidental death benefit") are checked. There is no mention of "death by accidental means."
Next, even if the policy was eventually delivered to the insured in this case, it is very probable that he did not see it at the time of purchase. This, too, is common in the insurance business. "Insurance policies, while in the nature of written contracts, are not prepared after negotiations between the parties, to embrace the terms at which the parties have arrived in their negotiations. They are prepared beforehand by the insurer, and the company solicitors then sell the insurance idea to the applicant. Normally, the details and provisions of the policy are not discussed, except that the particular form of policy is best suited to give the applicant the protection he seeks. If he reads the policy he is generally not in a position to understand its details, terms, and meaning except that, in the event against which he seeks insurance, the company will pay the stipulated sums. He seldom sees the policy until it has been issued and is delivered to him. He signs an application blank in which the policy sought is described either by form number or by a general designation, pays his premium, and in due course thereafter receives, either from the agent or through the mails, his policy. Many of its terms and all of its defenses and super-refinements he has never heard of and would not understand them if he read them." ( Browning v. Equitable Life Assur. Soc. (1937) 94 Utah 532 [ 72 P.2d 1060, 1073 ] (conc. & dis. opn. of Larson, J.), italics added.)
Here the application form was signed by the insured and the insurance company's agent on February 20, 1975, but the policy did not issue until April 14, 1975. As noted above, the application form is silent as to the *156 claimed limitation for "death by accidental means." And we may fairly assume that the insurance agent did not orally warn the insured, at the time he signed the form, that "the policy you will receive may look like an accidental death policy but it will actually be an `accidental means' policy, which means that even if you die accidentally your beneficiaries will not be protected unless `an unusual, unforeseen and unintended mishap occurs in the performance' of any act of yours that leads to your death." Not surprisingly, the insurance company does not claim that its agent gave the insured any such warning. [5]
Finally, even if the policy had been available for inspection by the insured at the time of purchase, it is highly improbable that, as a layperson, he would have read the "accidental means" language in the way that the insurance company now urges. There are two reasons why this is so.
First, it is unlikely the insured would have realized that the block-capital, boldface promise of an "ADDITIONAL ACCIDENTAL DEATH BENEFIT" was meant to be sharply limited by the brief reference to "accidental means" buried in the small print of a 130-word sentence in the accidental death rider. It is the insurer that chooses which words of its policy to emphasize, which to deemphasize, and which typography, sentence structure, or paragraphing to use for the purpose. The insurer should therefore be held to those choices and to the reasonable inferences that a layperson would draw from them. To hold a layperson to the insurer's contrary reading of a policy thus drafted would violate a fundamental rule of contractual interpretation: "where the policy expressly provides certain indemnities in large type and then unobtrusively, in fine print, attempts to limit the effect thereof, the court will protect the insured's rights." (1B Appleman, supra (1981) § 451, p. 250, fn. omitted.) [6]
Second, even if the insured herein noticed the "accidental means" language in the small print, he must be deemed to have read it "as a layman would read it and not as it might be analyzed by an attorney or an insurance expert." ( Crane v. State Farm Fire & Cas. Co., supra, 5 Cal.3d 112, 115 .) It is not easy for lawyers and judges to read a legal document as a layperson *157 would, but we must make the effort. Having done so, I submit that it would never occur to a layperson reading this policy to distinguish between "accidental death" and "death by accidental means." Rather, a layperson would read the words as functionally equivalent, as different ways of describing the same event — a death by accident, as distinguished from, say, a death by suicide, disease, or the natural causes of old age. If there were a distinction, to a layperson it would be a distinction without a difference.
Every court in our sister jurisdictions that has addressed the same question has answered it in the same way. Many of these courts expressly adopt the reasoning of Justice Cardozo in his seminal dissenting opinion in Landress v. Phoenix Ins. Co. (1934) 291 U.S. 491, 499, 501 [ 78 L.Ed. 934, 938-939 , 54 S.Ct. 461 , 90 A.L.R. 1382 ]: "The attempted distinction between 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 region of physical nature there is no such thing as an accident.' [Citations.] 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 insurance. It is his reading of the policy that is to be accepted as our guide, with the help of the established rule that ambiguities and uncertainties are to be resolved against the company. [Citations.] The proposed distinction will not survive the application of that test.
"When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident and hence by accidental means.... [¶] ... There was an accident throughout, or there was no accident at all."
A sampling follows of the numerous decisions holding that a layperson would not read this policy as making a distinction between "accidental death" (or death as "accidental result") and "death by accidental means":
In Mansbacher v. Prudential Ins. Co. of America (1937) 273 N.Y. 140 [ 7 N.E.2d 18, 19 , 111 A.L.R. 61 ], the policy — as in the case at bar — announced the accidental death benefit "in large letters," and in ordinary type defined such death in the same words as the policy before us, i.e., "effected solely through external, violent and accidental means." The New York high court reasoned, "Any one reading this policy would take it to mean — would understand it as meaning — that the insurance company would pay $2,000 for death caused solely by accident through external means; if death is caused by any external accident, the company pays. The only exception, pertinent here, is suicide. The insurance company now emphasizes the words `accidental means,' and would have an exception drawn between `accidental *158 death' and `death caused by accidental means' as though any ordinary person seeking a $2,000 policy would understand this logomachy.[ [7] ] The large type letters refer to accidental death, and the attention of the insured by the signs and pointings of the company is directed to accidental death. The company now says this policy does not refer to accidental death; that it has not insured against accidental death; that the accidental death must be caused by an accidental means.... We have said more than once that insurance policies upon which the public rely for security in death, sickness, or accident should be plainly written, in understandable English, free from fine distinctions which few can understand until pointed out by lawyers and judges. Accidental death means death by accident, and excludes suicide; death occurring through `accidental means' in this case and under these circumstances is the same as death occurring `by means of an accident.'" ( Id. at pp. 19-20.)
"A distinction between `accidental means' and `accidental results' is certainly not understood by the average man and he is the one for whom the policy is written." ( Burr v. Commercial Travelers Mut. Acc. Ass'n (1946) 295 N.Y. 294 [ 67 N.E.2d 248, 252 , 66 A.L.R. 462 ]; accord, Catania v. State Farm Life Ins. Co. (1979) 95 Nev. 532 [ 598 P.2d 631, 633 ]; Botts v. Hartford Acc. & Indem. Co. (1978) 284 Ore. 95 [ 585 P.2d 657, 660 ].)
"The fine distinction between `accidental death' and `death from accidental means' would certainly never occur to an ordinary policy holder." ( Equitable Life Assur. Soc. v. Hemenover (1937) 100 Colo. 231 [ 67 P.2d 80, 81 , 110 A.L.R. 1270 ].)
"There is no evidence but that the deceased was an average man, and we doubt, if he actually considered the subject at all, whether in purchasing the policy he thought that the term `accidental means' meant anything other than the ordinary meaning given thereto by any other average person. Certainly, a layman would have no comprehension that injury or death as a result of `accidental means' would be given a strict and technical interpretation." ( Scott v. New Empire Insurance Company (1965) 75 N.M. 81 [ 400 P.2d 953, 955 ].)
"The provisions of insurance policies should be considered as used in their ordinary and popular sense. If this be done, the distinction between accidental result and accidental means cannot be said to exist. It is a distinction without a difference in so far as the average lay person is concerned." ( Murphy v. Travelers Ins. Co. (1942) 141 Neb. 41 [ 2 N.W.2d 576, 580 ].)
*159 "The principle of law is firmly imbedded in the jurisprudence of this State that contracts of insurance should be construed most favorably to the insured. To draw such a fine distinction between the words `accident' and `accidental means' would do violence to this principle. It is a classic example of a distinction without a difference. As a practical matter, the average person buying accident insurance policies assumes that he is covered for any fortuitous and undesigned injury. The average man has no conception of the judicial niceties of the problem and even the most learned judge or lawyer, in attempting to understand and comprehend the niceties of the distinction, is left in a state of bewilderment and confusion." ( Gulf Life Insurance Company v. Nash (Fla. 1957) 97 So.2d 4, 10 (opn. of Drew, J., expressing majority view).)
"Texas courts have waded through Justice Cardozo's Serbonian bog, and we are now convinced that the terms `accidental 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 insurance contract should be given their ordinary and popular meaning according to the understanding of the average man; the court's guide should not be the technical meaning of the words used, but rather the intention of the parties as inferred from the contract 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." ( Republic Nat. Life Ins. Co. v. Heyward (Tex. 1976) 536 S.W.2d 549, 557 .)
"Before this court finds itself within that Serbonian Bog of semantics and polemical maze we are going to clarify our position and determine along with the growing majority rule that an accident is an accident whether it be in the `means' or the `result.' In so determining we do nothing more than follow the cardinal rule of contract construction — the intention of the parties.
"One paying the premium for a policy which insures against `death by accidental means' intends to provide benefits to his family or named beneficiary in the event he should suffer death caused by accident as opposed to death caused by other means, such as suicide, murder, disease or natural death." ( Knight v. Metropolitan Life Insurance Company (1968) 103 Ariz. 100 [ 437 P.2d 416, 420 ], fn. omitted, italics in original.)
Indeed, "If an insured, at the time he applies for accident insurance, was made to understand that his right to recover would hinge upon such fine distinctions as the difference between `an accidental death' and a death by *160 `accidental means' he would probably conclude that the purchase of such a policy would be a hazardous investment, and one which he ought not to make." ( Carter v. Standard Acc. Ins. Co. (1925) 65 Utah 465 [ 238 P. 259, 275 , 41 A.L.R. 1495 ].) [8]
Perhaps the last word should go to a predecessor of Lewis Carroll: "`There is really no justice in this supposed distinction, which the members of the Association of Life Insurance Counsel are striving to impress upon the courts, between "accidental injury" and "injury by accidental means." ... I believe that a vast majority of prospective policyholders, and of all men of ordinary or above ordinary intelligence, outside of the Association of Life Insurance Counsel, would be led to join in the wonder of John Byrom:
"`"Strange all this difference should be Twixt Tweedledum and Tweedledee."'" ( Schonberg v. New York Life Insurance Company (La. 1958) 104 So.2d 171, 176 .) [9]
In the case at bar the insurance company does not contend that all the foregoing courts are wrong, or that any court has actually held that a layperson would see and understand the claimed distinction. It follows that if, as the majority assert, the language is not ambiguous, the first rule of interpretation of insurance contracts compels the conclusion that the words "accidental death" and "death by accidental means" in this policy are to be read as functionally equivalent, and hence that the beneficiaries herein need prove only that the insured died an accidental death in order to recover under the accidental death rider.
Next, let us assume arguendo that, as the beneficiaries contend, the policy language is ambiguous. [10] In that event we reach the second and third rules for interpreting contracts, and hence insurance policies. These rules are to be applied when the wording of the contract is ambiguous or uncertain.
*161 The second rule declares that "If the terms of a promise [e.g., a promise of coverage in an insurance policy] are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor [e.g., the insurer] believed, at the time of making it, that the promisee [e.g., the insured] understood it." (Civ. Code, § 1649.) Although the rule appears to emphasize the belief of the insurer, its true focus is on the insured: "This rule, as applied to a promise of coverage in an insurance policy, protects not the subjective beliefs of the insurer but, rather, `the objectively reasonable expectations of the insured.'" ( Bank of the West v. Superior Court, supra, 2 Cal.4th 1254, 1265 .) Thus a court applying this rule must seek to determine "whether coverage is consistent with the insured's objectively reasonable expectations." ( Ibid. )
In the case at bar that inquiry leads to the same conclusion as reached above. This is so because the fundamental requirement that words in an insurance policy must be given their "ordinary and popular sense" (Civ. Code, § 1644) — and must therefore be read as a layperson would read them — applies to all rules of interpretation of such policies, including the rules governing ambiguity. Thus, an insurance policy "should be construed so as to protect the coverage which a layman would reasonably have expected, given his lay interpretation of the policy language. " ( INA Life Insurance Company v. Brundin (Alaska 1975) 533 P.2d 236, 241 [ 91 A.L.R.3d 1027 ], italics added, fn. omitted.) As explained above, in the policy before us a layperson would read the words "accidental death" and "death by accidental means" as functionally equivalent, and would therefore reasonably expect that any accidental death other than those expressly excluded would be covered by the accidental death rider.
Finally, the third of the rules of interpretation of insurance policies declares that when the previous rule does not remove the ambiguity, the ambiguous language must be "interpreted most strongly against the party who caused the uncertainty to exist" (Civ. Code, § 1654), i.e., against the drafter of the contract or policy.
This is not surprising: as we recently reiterated, "In the insurance context, we generally resolve ambiguities in favor of coverage. [Citations.] Similarly, we generally interpret the coverage clauses of insurance policies broadly, protecting the objectively reasonable expectations of the insured. [Citations.] These rules stem from the fact that the insurer typically drafts policy *162 language, leaving the insured little or no meaningful opportunity or ability to bargain for modifications. [Citations.] Because the insurer writes the policy, it is held `responsible' for ambiguous policy language, which is therefore construed in favor of coverage." ( AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d 807, 822 , fn. omitted.)
In the case at bar the insurance company's narrow reading of the accidental death rider to deny coverage when an accidental death is not also caused by "accidental means" violates the third rule of interpretation. Under this rule, any ambiguity in the disputed policy language must be resolved in favor of coverage.
In sum, whether the words here in issue are clear or whether they are ambiguous, settled rules of contractual interpretation compel the conclusion that the beneficiaries of this policy need prove only that the insured died an accidental death in order to recover under the accidental death rider. This view of the matter, as a leading scholar observes, "is clearly the preferred construction of policy language." (10 Couch on Insurance (2d ed. 1982) § 41.29, p. 45 [hereafter 10 Couch].)
II
Nevertheless, the insurance company contends we should depart in this case from the foregoing principles of contract and insurance law because stare decisis allegedly compels it. The contention is unpersuasive.
The majority phrase the question before us as whether we should "eradicate" or "abolish" the distinction between "accidental death" and "death by accidental means." (Maj. opn., ante, p. 140.) Realistically speaking, however, the question is whether we should resurrect the distinction, at least in this court. The history of the distinction in this court is brief and remote, covering only a dozen of the 144 years of our jurisprudence. The first California case to recognize the distinction was decided in 1916. ( Rock v. Travelers' Insurance Co. (1916) 172 Cal. 462 [ 156 P. 1029 ] [hereafter Rock ].) During the next 12 years this court reiterated the distinction in 5 cases, but they largely cited each other and offered only cursory and inconsistent reasoning in support of the distinction. The last of these cases was a one-page opinion issued sixty-six years ago. ( Harloe v. California State Life Ins. Co. (1928) 206 Cal. 141 [ 273 P. 560 ].) [11]
Yet while this court has not addressed the issue for six and a half decades, during the same period the courts of our sister states have been busy ruling on the same distinction. Their experience is instructive on two grounds.
*163 To begin with, the clear preponderance of our sister states now rejects the distinction. The majority herein assert that on this question California is in "a slight minority." (Maj. opn., ante, p. 138.) But this is surely an understatement: today the plurality of jurisdictions that rejects the distinction is considerably more than "slight." The majority incorporate by reference two lists of such jurisdictions compiled in a recent treatise, which identify 21 jurisdictions as recognizing the distinction and 25 as rejecting it. (Maj. opn., ante, p. 138.) But while the lists are a helpful starting point, an examination of the cases they cite reveals reasons to question their tally. First, two jurisdictions (Indiana and the District of Columbia) appear on both lists, depending on the facts of the case. Second, the lists tabulate only state courts; but as will appear, federal courts not bound by diversity rules are increasingly rejecting the distinction. Third, at least two jurisdictions on the pro-distinction list should be on the anti-distinction list. ( Fryman v. Pilot Life Ins. Co. (Ky. 1986) 704 S.W.2d 205, 206 ; Rankin v. United Commercial Travelers of America (1964) 193 Kan. 248 [ 392 P.2d 894, 900-901 ] [applying Ohio law].) Fourth, at least one jurisdiction on the pro-distinction list should be listed as undecided. ( Collins v. Nationwide Life Ins. Co. (1980) 409 Mich. 271 [ 294 N.W.2d 194, 195-196, fn. 2 ].)
Most significant, in a number of jurisdictions on the pro-distinction list the courts have preserved the distinction in name but abandoned it in fact, by the device of very narrowly defining the "means" or cause of death. These courts hold that the "means" was not the insured's voluntary course of conduct, but merely the particular event that brought the conduct to a fatal conclusion and that the insured obviously did not "intend." For example, in several cases the insured died after eating tainted food. Although in each case the event was plainly an "accidental death" the court managed to make it also a "death by accidental means," thus paying lip service to the distinction. To achieve this end the court held that the "means" or cause of death was not the insured's consumption of the food, but the fact that the food turned out to be tainted; the court then reasoned that although the insured voluntarily ate the food he did not "intend" to eat tainted food, and hence the "means" of his death — judicially defined as eating tainted food — was "accidental." ( United States Casualty Co. v. Griffis (1916) 186 Ind. 126 [114 N.E. *164 83, 84-85]; Johnson v. Fidelity & Casualty Co. (1915) 184 Mich. 406 [ 151 N.W. 593, 596 ]; Newsoms v. Commercial Casualty Ins. Co. (1927) 147 Va. 471 [ 137 S.E. 456, 457 ]; see also Christ v. Pacific Mut. Life Ins. Co. (1924) 312 Ill. 525 [ 144 N.E. 161, 164 , 35 A.L.R. 730 ] [insured drank tainted water].) Such reasoning — and it is common — obviously eviscerates the distinction.
Whatever the actual tally should be, moreover, the number of jurisdictions rejecting the "accidental death/accidental means" distinction is less important than their trend — and the trend is both clear and dramatic.
In 1916 this court was doubtless correct in saying that "the great weight of authority" supported the distinction. ( Rock, supra, 172 Cal. at p. 465 .) Although courts increasingly rejected the distinction in the 1930's, a compilation in 1947 still showed 25 jurisdictions in favor of it and 14 against. (Annot. (1947) 166 A.L.R. 469 , 471-472 & fn. 7, 473-474 & fn. 20.) But the current was flowing strongly away from the distinction, and in the ensuing years that current became a flood: many courts that had previously supported the distinction abandoned it, [12] while most of the courts addressing the question for the first time declined to adopt the distinction. [13] By 1984 it was clear that "Most of the states which have considered the matter in the last fifty years have abolished the distinction between `accidental means' and `accidental results.'" (Ingram & Ostfeld, The Distinction Between Accidental Means and Accidental Results in Accidental Death Insurance (1984) 12 Fla.St.U.L.Rev. 1, 10, fn. omitted.)
The upshot is that today it is literally black letter law that "The older judicial view tended to support a distinction between policy language purporting to cover death or injury by accidental means and language indicating coverage for an accidental result. The modern trend in the majority of jurisdictions is to find no significance in the `means' as long as the result is accidental." (3 Harnett & Lesnick, The Law of Life and Health Insurance (1993) § 7.02, p. 7-11, italics added [hereafter 3 Harnett & Lesnick].) The question is whether this court will pretend that nothing has changed in the past 66 years, or instead will take this opportunity to bring our law into harmony with the "modern trend in the majority of jurisdictions." ( Ibid. )
*165 The remarkable reversal in the weight of authority is well illustrated by considering what has become of the pro-distinction precedents that this court relied on in Rock, supra, 172 Cal. 462 . Two of those precedents ( id. at p. 466) were New York Appellate Division cases decided in 1903 and 1904. In 1946, however, New York's highest court declared, "In this State there is no longer any distinction made between accidental death and death by accidental means, nor between accidental means and accidental results." ( Burr v. Commercial Travelers Mut. Acc. Ass'n, supra, 67 N.E.2d 248, 252 , citing Mansbacher v. Prudential Ins. Co. of America, supra, 7 N.E.2d 18 ; accord, Morgan v. Indemnity Ins. Co. of North America (1951) 302 N.Y. 435 [ 99 N.E.2d 228, 229 ] ["Whether death results from accidental causes or accidental means no longer makes any distinguishing difference."].)
In Rock, supra, 172 Cal. at page 466 , this court also relied on a 1912 Texas intermediate appellate case. In 1976, however, the Texas Supreme Court declared that "a real distinction between the terms `accidental death' or `accidental injury' and `death by accidental means' is no longer recognized in Texas." ( Republic Nat. Life Ins. Co. v. Heyward, supra, 536 S.W.2d 549, 554 .)
Again in Rock, supra, 172 Cal. at pages 465-466, this court relied on three Iowa cases decided between 1899 and 1911. That state's highest court, however, subsequently abandoned the distinction: "In many jurisdictions the courts distinguish between accidental results and accidental means, and requires [ sic ] that both be proved in order to meet the provisions of such a policy. Such was the earlier rule in Iowa. In the case of Lickleider v. Iowa State Traveling Men's Ass'n [(1918)] ... 166 N.W. 363 , 367 ..., the early rule was modified, and it was there held that an accidental result and the accidental means by which it is caused are somewhat identical, and that proof of the former may be considered as proof of the latter." ( Dawson v. Bankers' Life Co. (1933) 216 Iowa 586 [ 247 N.W. 279, 282 ].)
This court also relied in Rock, supra, 172 Cal. at page 466 , on a 1908 Indiana appellate case. By 1971, however, the same court had abandoned the "accidental death/accidental means" distinction, at least in the frequent context of deaths in fights in which the insured was the aggressor. ( Freeman v. Commonwealth Life Ins. Co. of Louisville, supra, 271 N.E.2d 177, 180, 181 ["what constitutes an `accident,' or what `means' are `accidental,' is to be determined by what people usually and ordinarily consider to be `accidental.' ... [¶] ... To the non-lawyer an event is an accident no matter how *166 much the injured party's fault may have contributed to causing it, so long as he did not intend for it to happen."].) [14]
Finally, in the only jurisdiction (Georgia) cited in Rock, supra, 172 Cal. at page 466 , that still purports to observe the "accidental death/accidental means" distinction, courts have long expressed doubts about its workability: "A consideration of the literally hundreds of cases where the courts have sought to construe such provisions in policies of insurance and interpret `accidental means' brings one to the sharp realization of the great truth in Justice Cardozo's warning, `The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog.' The cases are in irreconcilable conflict." ( Thompson v. Prudential Ins. Co. of America (1951) 84 Ga. App. 214 [ 66 S.E.2d 119, 121 ].)
The remaining cases cited in Rock, supra, 172 Cal. at pages 465-466, are even less persuasive: two are early Scottish and English cases, and the remaining four are federal district and circuit court diversity cases declaring a "federal common law" that has not been binding on any court since Erie R. Co. v. Tompkins (1938) 304 U.S. 64, 78 [ 82 L.Ed. 1188, 1194 , 58 S.Ct. 817 , 114 A.L.R. 1487 ]. [15]
*167 In seeking to distinguish contrary decisions, the court in Rock, supra, 172 Cal. at page 467 , offered its sole argument in support of the distinction: "To our minds it fails to give effect to the plain language of the policy in that it does not distinguish between the result to the insured and the means by which that result was brought about. As we have already pointed out, the insurance is not against accidental injury or death, but is against death resulting from injuries effected by accidental means." As explained above, however, in the context of insurance law it is now settled that the "plain language of the policy" rule must be applied from the viewpoint of the layperson: "Words used in an insurance policy are to be interpreted according to the plain meaning which a layman would ordinarily attach to them. " ( Reserve Insurance Co. v. Pisciotta, supra, 30 Cal.3d 800, 807 , italics added.) And as further explained above, the courts widely agree that it would never occur to a layperson reading the language of such a policy to distinguish between "accidental death" and "death by accidental means." (See pt. I, ante. )
It follows that neither of the pillars on which Rock rested the "accidental death/accidental means" distinction will support that dilapidated structure today. When we turn to its progeny, moreover, we find them equally inadequate to the task.
Under the test adopted in Rock, supra, 172 Cal. at page 465 , the unforeseeability of the fatal result of the insured's conduct was essentially irrelevant; for the loss to be compensable as an "accidental death," Rock required that the means or cause of death be itself unforeseen. Perhaps unsatisfied with this test, however, the court adopted a wholly different test less than three months later. In Postler v. Travelers Ins. Co. (1916) 173 Cal. 1 [ 158 P. 1022 ] (hereafter Postler ), overruled on another ground in Zuckerman v. Underwriters at Lloyd's, supra, 42 Cal.2d 460, 474 , the beneficiary of an insured fatally wounded in a shooting incident sued on policies providing coverage, as here, for death from injuries caused by "accidental means." The defendant insurer denied that the injuries were caused by "accidental means," and this court agreed. But the court did not inquire whether the "means" of death was unforeseen, as required by Rock . Instead, it announced a new test: "the ultimate question" was whether the insured's death "was the natural and probable consequence of his own voluntary acts." ( Postler, supra, 173 Cal. at p. 5 .) This was the equivalent, of course, of asking *168 whether the fatal result of the insured's conduct was foreseeable. [16] Thus under Rock the test was not foreseeability of result but of means, while under Postler the test was not foreseeability of means but of result. The two tests were therefore fundamentally inconsistent. (Accord, Comment, The Judicial Approach to "Accidental Means" Policies in California (1961) 13 Hastings L.J. 255 .)
Worse, the court apparently remained either unaware of or unconcerned by this inconsistency. In the third case in this series the court invoked both tests at once. ( Olinsky v. Railway Mail Assn. (1920) 182 Cal. 669, 672 [ 189 P. 835 , 14 A.L.R. 784 ].) In the fourth case the court relied exclusively on the "accidental means" test and remained silent on the "natural and probable consequence" test. ( Ogilvie v. Aetna Life Insurance Co. (1922) 189 Cal. 406, 411-412 [ 209 P. 26 , 26 A.L.R. 116 ].) In the fifth case the court reverted to invoking both tests at once. ( Moore v. Fidelity & Casualty Co. (1928) 203 Cal. 465, 471-472 [ 265 P. 207 , 56 A.L.R. 860 ].) And in the last case, conversely, the court relied exclusively on the "natural and probable consequence" test and remained silent on the "accidental means" test. ( Harloe v. California State Life Ins. Co, supra, 206 Cal. 141, 142 .) Such vacillation undermines any lingering precedential value these cases might have.
In any event, the "natural and probable consequence" test was no improvement over the "accidental means" test. The "natural and probable consequence" test was not originally part of insurance law at all; the court imported it wholesale into insurance law from its sources in the law of crimes and torts. [17] Yet as will appear (pt. III, post ), when courts undertake to judge insurance cases by the standards of criminal or tort law they run the risk of defeating the very purpose of insurance by impairing the reasonable expectations of those who purchase the policies.
*169 For all these reasons, I submit, Rock and its progeny should no longer be followed on this issue. They represent a brief and bygone moment in our court's long history. The weight of authority on which they were premised has dramatically reversed itself, and the contrary view is now the "modern trend in the majority of jurisdictions" (3 Harnett & Lesnick, supra, § 7.02, p. 7-11). Indeed, virtually all the precedents that our early cases relied on have since been overruled by their own courts. In addition, the scholars are uniformly critical of the "older judicial view" ( ibid. ) that Rock and its progeny represent. [18] And the reasoning of the early cases no longer persuades: they invoke, apparently at random, two lines of reasoning that are inconsistent with each other; more important, they ignore principles of contract and insurance law that are enshrined in our codes and uniformly applied in all our recent cases (pt. I, ante ).
In similar circumstances we have not hesitated to depart from stare decisis and overrule outdated decisions of this court. (E.g., McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 356-358 [ 261 Cal. Rptr. 318 , 777 P.2d 91 ]; Cianci v. Superior Court (1985) 40 Cal.3d 903, 921-925 [ 221 Cal. Rptr. 575 , 710 P.2d 375 ]; City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 528-533 [ 162 Cal. Rptr. 327 , 606 P.2d 362 ]; Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 389-408 [ 115 Cal. Rptr. 765 , 525 P.2d 669 ]; Vesely v. Sager (1971) 5 Cal.3d 153, 161-167 [ 95 Cal. Rptr. 623 , 486 P.2d 151 ]; Gibson v. Gibson (1971) 3 Cal.3d 914, 916-923 [ 92 Cal. Rptr. 288 , 479 P.2d 648 ]; People v. Daniels (1969) 71 Cal.2d 1119, 1129-1139 [ 80 Cal. Rptr. 897 , 459 P.2d 225 , 43 A.L.R.3d 677 ]; People v. Hutchinson (1969) 71 Cal.2d 342, 346-351 [ 78 Cal. Rptr. 196 , 455 P.2d 132 ]; Smith v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 814, 819-825 [ 73 Cal. Rptr. 253 , 447 P.2d 365 ]; Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 658-660 [ 320 P.2d 500 , 65 A.L.R.2d 1 ].) We should not hesitate to do so now.
III
If, as I urge above, the beneficiaries need prove only that the insured died an accidental death, the next question is: what is an accidental death? The answer is not obvious. The policy does not define the words; again, therefore, they "are to be understood in their ordinary and popular sense" (Civ. Code, § 1644), i.e., as a layperson would understand them. The first decision *170 of this court to address the question so stated: in interpreting a policy, the word "`accident' must be given its popular meaning" ( Richards v. Travelers Ins. Co. (1891) 89 Cal. 170, 175 [ 26 P. 762 ]). This rule is widely followed in our sister states: "Many courts say that the words `accident' and `accidental' have never acquired any technical meaning, or that they do not have a settled legal signification. Many say that, in accordance with the principles of insurance policy interpretation, the words are to be given the meaning that the ordinary, average person would give to them." (Fns. omitted.) (3 Harnett & Lesnick, supra, § 7.06[3], p. 7-127, and cases cited.) For example, the Oregon Supreme Court explained that "The insurance company may, of course, insert in its policy any definition of `accident' it chooses[ [19] ] but, in the absence of doing so, it must accept the common understanding of the term by the ordinary member of the purchasing public." ( Botts v. Hartford Acc. & Indem. Co., supra, 585 P.2d 657, 660 .)
As suggested above, a layperson who is asked to define accidental death might well begin by distinguishing it from what it is not: it is not a suicide, nor a death from disease, nor a death from the natural causes of old age. If pressed to say what it is, the layperson might reply that an accidental death is generally a death caused by injury, giving as examples deaths from automobile collisions, airplane crashes, fires, drownings, falls, poisonings, firearm mishaps, criminal assaults, and the like. But if asked to specify what exactly these accidental deaths have in common, the layperson might have more difficulty, and would probably be reduced to describing the deaths in such broad and general terms as happening by chance, unusual, unforeseen, unanticipated, unexpected, and unintended.
Courts have used all these terms, and more, in seeking to define "accident" and "accidental." (E.g., 3 Harnett & Lesnick, supra, § 7.06[3], pp. 7-129 to 7-132, 7-140 to 7-144, and cases cited.) This court joined the fray in 1891, asserting that the popular meaning of "accident" was "a casualty — something out of the usual course of events, and which happens suddenly and unexpectedly, and without any design on the part of the person injured." ( Richards v. Travelers Ins. Co., supra, 89 Cal. 170, 175 .) We have since repeated this definition several times, most recently in Zuckerman v. Underwriters at Lloyd's, supra, 42 Cal.2d 460, 473 , but it remains unsatisfactory on various grounds. To define an "accident" as a "casualty" is circular reasoning. Other key terms of the definition — unusual, sudden, unexpected, and undesigned — are inherently imprecise, their content largely in the eye of *171 the beholder. And most important, the definition is both underinclusive and overinclusive. [20]
It will be more fruitful, I submit, to return once again to first principles. A number of basic points can surely be agreed upon.
First, "When determining whether an event is an accident, the determination is made from the point of view of the insured, and not from the point of view of some other person who was involved in the event." (Fn. omitted.) (3 Harnett & Lesnick, supra, § 7.06[3], p. 7-129, and cases cited.)
Second, "Generally, accident policies should be so interpreted that provisions of the policies effectuate the reasonable expectations of the purchaser." (1A Appleman, supra (1981) § 360, p. 447, fn. omitted; accord, e.g., AIU Ins. Co. v. Superior Court, supra, 51 Cal.3d 807, 822 , and cases cited.)
Third, the purchaser of accident insurance reasonably expects to be covered, at the very least, for injury or death suffered through no fault of his own. These are instances in which laypersons would agree that the insured did nothing to contribute to the injury. (E.g., Reid v. Aetna Life Ins. Co. (S.D.Ill. 1977) 440 F. Supp. 1182, 1183 , affd. without pub. opn. (7th Cir.1978) 588 F.2d 835 [insured died after surgery when nurse put wrong drug in his intravenous solution]; Schonberg v. New York Life Insurance Company, supra, 104 So.2d 171, 172 [insured died in surgery from shock caused by "a very rare blood transfusion reaction"].) Because coverage is clear, such cases are rarely litigated.
Fourth, and at the other extreme, the insured cannot reasonably expect to be covered for deliberately self-inflicted injury (e.g., Colonial Life & Acc. *172 Ins. Co. v. Cooper (Fla. Dist. Ct. App. 1979) 378 So.2d 806 [insured, hired to repair roof of commercial building, jumped off roof with intent to injure himself for purpose of filing compensation claim or action for damages]) or, a fortiori, for suicide. To hold otherwise would defeat the purpose of accident insurance, transforming it in effect into either health or disability insurance or life insurance. This would amount to a fraud on insurance companies, in view of the modest premium usually charged for accident coverage. [21] Again there are few reported cases, because it is equally clear there is no coverage in that circumstance.
The difficulty occurs when the facts fall between these two extremes, i.e., when some act of the insured has contributed in some way to the injury. There are numerous cases, lying along a broad spectrum. At one end are cases in which the insured's act is innocent and trivial, and the injury is grossly disproportionate to the act. (E.g., Lewis v. Ocean Accident & Guarantee Corp. (1918) 224 N.Y. 18 [ 120 N.E. 56, 57 , 7 A.L.R. 1129 ] [insured pricked pimple on his lip; pimple became infected, resulting in paralysis, blindness and death] (per Cardozo, J.); Griswold v. Metropolitan Life Ins. Co. (1935) 107 Vt. 367 [ 180 A. 649 ] [insured chopped kindling, stick flew up and cut him above the lip; cut became infected, resulting in paralysis and death]; Western Commercial Travelers' Ass'n v. Smith (8th Cir.1898) 85 Fed. 401 [insured wore new shoes; friction of shoe caused skin abrasion on one toe and abrasion became infected, resulting in death].) The insured reasonably expects to be covered for such disproportionate injuries, and the courts uniformly hold them to be accidental.
Farther along the spectrum lies a larger group of cases in which the insured's act is not innocent but negligent, and contributes somewhat more to the outcome. Nevertheless, the courts uniformly hold that the ensuing injury is still accidental. "`A very large proportion of those events which are universally called accidents happen through some carelessness of the party injured which contributes to produce the.... Yet such injuries, having been unexpected, and not caused intentionally or by design, are always called accidents, and properly so.'" ( Vennen v. New Dells Lumber (1915) 161 Wis. 370 [ 154 N.W. 640, 642 ].)
*173 For example, in Farm Bur. Mut. Ins. Co. etc. v. Parrish (1979) 265 Ark. 161 [ 577 S.W.2d 397 ], the insured was asphyxiated when she and her boyfriend sat in his parked car with the motor running and a bent gravel guard underneath the car caused the exhaust to enter through the trunk. Rejecting a contention that the death was not accidental because the act of parking with the motor running was intentional, the court observed: "To give the policy the interpretation suggested by [the insurance company] would provide coverage only in those situations in which the insured was guilty of no negligence." ( Id. at p. 398; accord, e.g., Rivers v. Conger Life Insurance Company (Fla. Dist. Ct. App. 1969) 229 So.2d 625 [insured died from burns received while smoking in bed]; Clements v. Metropolitan Life Ins. Co. (1976) 266 S.C. 488 [ 224 S.E.2d 309 ] [insured died when his shotgun discharged while he was handling it].)
Again the courts make clear that they so hold because of the reasonable expectations of the insured. "Generally, insureds purchase accident insurance for the very purpose of obtaining protection from their own miscalculations and misjudgments." ( Wickman v. Northwestern Nat. Ins. Co. (1st Cir.1990) 908 F.2d 1077, 1088 .) "Thoughtlessness, inattention, forgetfulness, miscalculation often are causes of accidents. People, in fact, often take out accident policies, not only to protect themselves from the fault of others, but from their own foibles and imperfections." ( Brenneman v. St. Paul Fire and Marine Insurance Co. (1963) 441 Pa. 409 [ 192 A.2d 745, 748 ]; accord, Gulf Life Insurance Company v. Nash, supra, 97 So.2d 4, 9-10 [to deny coverage for accidental death because the insured was negligent "would not only do violence to the reason for buying accident insurance[,] but if it did not preclude recovery in a great majority of deaths arising from accidents, it would place an almost insurmountable burden on the insured to enforce liability"]; Wiger v. Mutual Life Ins. Co. of New York, supra, 236 N.W. at pp. 538-539 [to deny coverage for death by accidental means whenever the injury was a foreseeable result of an act of the insured "is contrary to the common understanding of the term and tends unfairly to limit such policies to cases where the insured is guilty of no negligence"].) [22]
Still farther along the spectrum we reach, so to speak, the gray area, where the insured's act is more than negligence but less than a deliberate self-injury or suicide, and it contributes significantly to the outcome. Here the act leading to the injury is usually described in such terms as foolhardy or dangerous, grossly negligent or reckless. Unfortunately these are "loaded" *174 words, charged with negative connotations that they acquired in the wholly different contexts in which they arose, i.e., in the fields of tort and criminal law. But in those fields they describe blameworthy acts that injure society by harming third persons, and society therefore punishes the acts by imposing punitive damages or criminal liability on the actor. The present insurance context is different in two important respects: here no one suffers physical harm but the actor, and the insurance company has promised by contract to provide certain benefits in the event of that harm.
Yet the words — grossly negligent, reckless — are the same in both contexts, and the semantic confusion has often misled courts into deciding insurance cases on moral or visceral grounds rather than by the application of legal principles. As the New Jersey Supreme Court candidly observed, the many conflicting decisions in this area do not "fall into a consistent and uniform pattern of analysis determined by the application of all-inclusive black and white rules. Very much seems to depend upon a court's unexpressed feeling of the fair and reasonable result in the particular factual setting, with made-to-order criteria and language then being used to bring about legal conformance to the conclusion previously reached." ( Linden Motor Freight Co., Inc. v. Travelers Ins. Co., supra, 193 A.2d 217, 223 .) Nevertheless, I believe it is possible to develop at least a principled framework for deciding these cases, and we should make the effort to do so.
When the issue is dispassionately considered, it appears that the goal of the courts should be to distinguish between cases in which the insured's act would be commonly viewed as tantamount to suicide and those in which it would not. We have all seen or heard of acts so reckless — or so brave — that we exclaim, "it would be suicide to do that," even though we know the actor does not actually intend self-destruction. Those are the acts, I submit, that an insured cannot reasonably expect will trigger coverage for accident insurance: to do so would, as in the case of actual suicide, defeat the purpose of such insurance and amount to a fraud on its premium structure. (See fn. 21, ante. ) Those are the cases, therefore, that the courts need to identify.
Conversely, in all cases in which the insured's act was more than negligent but not tantamount to suicide, the insured can reasonably expect to be covered. There is simply no principled way to deny ordinary accident insurance coverage for losses resulting from acts of this type. However understandable it may be for a court to disapprove of such acts, the disapproval is misplaced here. Here we deal with the law of contracts, not the law of torts or crimes. The insurance company does not represent the public safety concerns of society but the commercial interests of its owners. Nor was the company forced to issue the policy; it voluntarily did so for the *175 purpose of profiting from the transaction. Indeed, it is precisely because the company's liability is contractual that it has the power to limit its liability — and avoid this entire problem — by an appropriate exclusion clause. Such clauses can be either general or specific.
First, an accident insurance policy may contain a clause generally excluding coverage for injury or death resulting from "voluntary exposure to unnecessary danger." (See, e.g., Wilson v. Travelers' Insurance Co. (1920) 183 Cal. 65, 67 [ 190 P. 366 ]; Davilla v. Liberty Life Ins. Co. (1931) 114 Cal. App. 308, 312-313 [ 299 P. 831 ].) The exclusion is appropriate in the present context: it does not operate unless the insured's conduct was "more than negligence" ( 114 Cal. App. at p. 318 ), and the better rule is that "the insured must be guilty of gross or wanton conduct before a recovery will be denied." (1B Appleman, supra (1981) § 531, p. 431, fn. omitted.) In the absence of such a clause, however, "the voluntary exposure of the insured to danger or his failure to exercise diligence in avoiding perils does not affect the right to recover under a policy." ( Id. at p. 428, fn. omitted.)
Accordingly, in cases in which the policy contains no exclusion for "voluntary exposure to unnecessary danger," courts have held that "Unless the [insured] intended to produce the very result which occurred, the element of danger is both unimportant and immaterial, because ... `Persons protected by accident insurance may incur consciously hazards which may result in their injury or death without forfeiting the insurance, unless the policy expressly excepts the hazards." ( Richards v. Standard Acc. Ins. Co. (1921) 58 Utah 622 [ 200 P. 1017, 1025 , 17 A.L.R. 118 ].)
Relating the matter to the reasonable expectations of the insured, the Arizona Supreme Court declared in the plainest terms that "When he pays that premium month after month he does not intend that any act committed by him, no matter how daring, reckless or foolhardy, be adjudged by a court under `reasonable man tests' or `natural or probable consequence' standards to deprive his beneficiary of contractual rights arising out of his unintended and unexpected and, therefore, accidental death.... [¶] Insurance companies are the drafters of the policies they sell and if they want to exclude against reckless and foolhardy acts [citing examples] ... they have it in their power to make such exclusions. With simplicity and clarity of expression they may remove all doubt [citation]." ( Knight v. Metropolitan Life Insurance Company, supra, 437 P.2d 416, 420 .) In the case at bar the *176 insurance company did not include such a general exclusion clause in its policy. [23]
Second, an insurance company may instead exclude particular risks against which it does not wish to insure. For example, the company may specifically exclude any death resulting from an act of the insured that is "in violation of law," i.e., whether felony or misdemeanor. (1B Appleman, supra (1981) § 511, pp. 394-395 and cases cited.) Here the company excluded only death resulting from the commission of "an assault or felony," a designation insufficient to govern this case. [24] Or, still more specifically, the company may exclude any death resulting from the use or while under the influence of any narcotic or other controlled substance. (See 10 Couch, supra, § 41:456, p. 510, and cases cited.) Here the company excluded only death resulting from the "taking of poison or asphyxiation from inhaling of gas...." Again the designation was insufficient to exclude the present loss. [25]
The lack of such specific exclusion clauses was held dispositive in a case decided on facts similar to our own, O'Toole v. New York Life Ins. Co. (5th Cir.1982) 671 F.2d 913 . Finding accidental death coverage after an insured died from self-administration of cocaine, both the federal trial and appellate courts stressed the absence of appropriate exclusion clauses. The circuit court observed, "The district court opined that had [the insurer] `wished to exclude such a death, it should have expressly said so in its policy.' We agree." ( Id. at p. 915.) And the circuit court emphasized that "In the instant case, the policy excluded death by suicide, but an exclusion for death resulting from the self-administrati

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2609839. Public record. Not legal advice.