# USA LIFE ONE INS. CO. OF IND. v. Nuckolls

> Indiana Court of Appeals · April 10, 1996 · 663 N.E.2d 541

URL: https://www.frixlaw.com/law-library/cases/9529825

## Case

- **Full name:** USA LIFE ONE INSURANCE COMPANY OF INDIANA, Appellant-Defendant, v. MARSHALL L. NUCKOLLS, as Personal Representative of the Estate of Robert L. Nuckolls, Deceased; Marshall L. Nuckolls and Ada Nuckolls, Appellees-Plaintiffs
- **Court:** Indiana Court of Appeals
- **Decided:** April 10, 1996
- **Citations:** 663 N.E.2d 541; 1996 Ind. App. LEXIS 413
- **Precedential status:** Published
- **Opinion:** Dissent by Friedlander
- **Judges:** Sullivan, Sharpnack, Friedlander
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9529825

## Opinion text

FRIEDLANDER, Judge,
dissenting.
I believe that the trial court was correct in denying USA's motion for summary judgment and therefore respectfully dissent from the majority's determination that USA is entitled to judgment as a matter of law.
An intoxicated man was sitting in his parked car smoking a cigarette when he passed out, presumably as a result of his intoxication. The cigarette fell from his *545 hand, the car ignited, and the man was unable to escape. The fire consumed the car and its occupant before it could be extinguished by emergency personnel. As is common in deaths resulting from fire, a subsequent autopsy determined that the official cause of the man's death was carbon monoxide poisoning. The question we are called upon to answer is essentially this: Can the cause of the man's death be fairly described as the "taking of poison or gas, whether voluntarily or involuntarily accidental or otherwise", as provided in an exclusionary clause of an accidental death life insurance policy? Record at 14. I agree with the trial court's conclusion that it cannot.
The majority correctly begins its analysis of the policy provision's meaning by focusing on the term "taking". Does involuntarily inhaling the toxic fumes which are the inevitable by-products of a fire, while trapped in a fire, constitute "taking poison"? The majority concludes that it does. In arriving at this conclusion, the majority focuses on the real crux of the matter: Does "taking", as used in the accidental death policy exclusionary provision, contemplate both voluntary and involuntary actions? To answer this question, the majority, noting that the policy does not define the term "taking", observes that one acceptable meaning of the term "taking" is "to ingest". Concluding that Robert died as a result of "ingesting" (a term that is sanitized of voluntary-versus-involuntary connotations) carbon monoxide, the majority determines that "ingesting (and therefore 'taking") a poison" unambiguously includes involuntarily breathing the poisonous by-products of a fire while trapped in the fire. In my view, the majority's analysis misses the mark in that it incorrectly construes the meaning of a synonym of the term in question, Le., "ingesting", and not the critical term itself, i.e., "taking".
While it is true that "ingesting" is one meaning of "taking", such is not the only meaning. The Random House Dictionary of the English Language (1967) lists ninety-two separate and widely varied meanings for the word "take", including "to receive and accept willingly", id. at 1448, and other definitions indicating that the term is sometimes used to indicate voluntary and willing action. Therefore, I believe that the majority's analysis is incorrect in that it selects one synonym from among multiple alternatives and construes the meaning of the provision in question after replacing the original word with the selected synonym. It is not our task to construe the meaning of "taking" in the abstract, to randomly select a meaning from among alternative meanings, without regard for the cireumstances of the case. Rather, we can determine the meaning of the term only after considering it in the context in which it was used in the particular case and the nature of the instrument in which it was employed. Aetna Cas. & Sur. Co. v. Crafton, 551 N.E.2d 893 (Ind.Ct.App.1990).
As the majority states, the general rule of interpretation to which courts adhere when considering insurance contracts is that we will apply the plain and ordinary meaning of the language employed in the contract. Comprehensive Health Ins. Ass'n v. Dye, 531 N.E.2d 505 (Ind.Ct.App.1988). If more than one reasonable interpretation is possible, the court adopts the interpretation most favorable to the insured. Tate v. Secura Ins., 587 N.E.2d 665 (Ind.1992). USA Insurance ad-voecates a broad definition of the term "taking", making it synonymous with "caused by", thereby excluding coverage for any death caused by poison or gas. While "taking" may theoretically be so interpreted, the rules of construction set forth in Comprehensive Health Ins. Ass'n compel me to assign ordinary meaning to words employed in an insurance contract and "taking" is not ordinarily understood to be tantamount to "caused by." Yet, the meaning ascribed to the term by the majority achieves such a result.
The primary goal when construing the meaning of insurance policies is to effectuate the intent of the parties as manifested in the insurance contract. Lexington Ins. Co. v. American Healthcare Providers, 621 N.E.2d 332 (Ind.Ct.App.1993), trans. denied. To construe the policy as the majority has done effectively means that, in an overwhelming majority of cases, there will be no coverage in the event that death is caused by a fire for persons obtaining an accidental death policy *546 containing this language. It is common knowledge that many people who die in fires are not killed by the flames themselves. Many times, as here, the official cause of death is carbon monoxide poisoning. The majority's interpretation yields the following result: Robert would have been covered by the policy had he burned to death before succumbing to the carbon monoxide gas, but he is not covered because the gas overcame him first. I find this result fllogical and inconsistent with the intent of the parties. I believe that when Robert Nuckolls purchased the accidental death rider policy, he believed that coverage would attach in the event that his death was caused by accidental fire. Indeed, if incineration had been listed as the official cause of death, coverage would not have been denied on the basis that Robert died as a result of taking a poison.
I would reject USA's attempt to seize upon a technicality regarding the official cause of death in denying coverage. I firmly believe that the average person, when apprised of the cireumstances of Robert's unfortunate death, would not respond to the question, "How did Robert die?" with the answer, "He took gas." "Taking gas" has a meaning in our everyday language that is at odds with the meaning which the majority has ascribed it in this context. "Taking" ordinarily connotes an act of volition or intention. Thus, "taking a poison or gas", as that phrase is used in subsection (g), should be understood to mean only the intentional ingestion or inhaling of such substances or gases while aware of the dangerous nature of the substance being ingested. Moreover, when viewed contextually, this definition lends internal consistency to the accidental death rider.
The rider provides coverage for accidental death, but logically excludes coverage for death caused by particular volitional acts designated for exelusion because of their potentially lethal consequences. This interpretation is preferable not only because it incorporates the ordinary meaning of the term "taking" and it lends internal consistency to the exclusionary policy, but also because it resolves the ambiguity resulting from the qualifying phrase, "whether voluntarily or involuntarily", in favor of the insured. Dyg, supra.
Based upon my conclusion that dying of smoke inhalation in a fire is not "taking a gas or poison", I must also address a second argument made by USA. The Clay County Coroner concluded that the high blood-aleo-hol content in Robert's blood at the time of the fire was a contributing cause of death. Because it may reasonably be inferred that Robert intentionally ingested the alcohol, USA argues that alcohol is a poison within the meaning of subsection (g), thereby excluding coverage under the accidental death rider.
As stated previously, the meaning of "poison" in subsection (g) must be construed in a fashion consistent with its ordinary meaning. Dye, supra. Generally, a poison is a substance which has an inherent property that, by itself, tends to destroy life or impair health. While alcohol may endanger or destroy life or impair health when ingested in excessive amounts, the same is true of many substances that are not considered to be poison in the ordinary sense. 2 Therefore, "poison" within the meaning of subsection (g) means a substance that, by itself, tends to destroy life or impair health if taken in relatively moderate amounts. The alcohol contained in alcoholic beverages is not such a substance and therefore is not a poison within the meaning of subsection (g).
Based upon my conclusion that the term "taking" is sufficiently ambiguous to require construction of the meaning of subsection (g), and that the term ordinarily connotes a volitional and voluntary act, I am convinced that Robert's death was not the result of "taking a poison" within the meaning of subsection (g). I conclude also that alcohol is not a poison within the meaning of subsection (g). Therefore, the cause of death was not excluded by the terms of the accidental death rider and USA was obligated to pay the policy *547 proceeds to the designated beneficiary. I would affirm the trial court.
. Moreover, in the instant case, alcohol was a contributing cause of Robert's death only because it created conditions, i.e., intoxication and a high level of blood-alcohol content, making Robert more vulnerable to the fire and the deadly effects of the carbon monoxide gas.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9529825. Public record. Not legal advice.