CR83
Death claim – accidental death policy – whether the deceased negligently or intentionally exposed himself to danger; whether the death directly or indirectly arose from or could be traced to an action of the insured while his blood alcohol percentage was over the prescribed limit.
Background
The complainant was the wife of the deceased life insured. Her husband, a police officer, died after a shooting incident in 1996. She was paid out on a life policy but the insurer repudiated the claim on an accidental death policy.
The circumstances of the insured’s death were murky. On the date in question, in the middle of the night, a suburban resident, Mr S, heard noises outside his house and on investigation he found the insured on top of his perimeter wall. S thought he was an intruder, and pointed a firearm at him, telling him not to move. The insured moved his arm and S shot him three times, killing him. How the insured came to be on the wall is clothed in mystery and intrigue. There were allegations of police involvement in criminal activities about which the insured was likely to testify as a state witness, the involvement of notorious former security policemen, and the suggestion that the insured’s crooked colleagues may have forced him to get drunk/drugged and put him up to being on the wall where he was likely to get shot, thus doing them a favour. Some of these allegations were put to the insurer by one of the investigating officers. Eight years after the death, the finding of the inquest report was that the death was brought about by an act or omission of S prima facie amounting to an offence. The transcript of the inquest however shed no light on how the insured came to be on the wall, and it did not appear that any more relevant evidence would come out of S’s trial.
The benefit was payable if the insured died as the result of an accident – “as gevolg van ‘n ongeluk”. This phrase was defined in the policy to mean that (a) the death was the direct result of bodily injury caused by physical contact with violent, accidental, tangible, external means and (b) that
“hierdie dood of liggaamlike verlies op geen wyse daaraan toe te skrywe is dat die versekerde homself of haarself nalatig of opsetlik aan gevaar blootgestel het nie tensy in ‘n poging om ‘n menselewe te red, in belang van die reg of tydens die beskerming van eiendom.” (our emphasis)
There was also an exclusion in the policy to the effect that no benefit was payable
“waar die dood of liggaamlike verlies direk of indirek voortspruit uit, of nagespeur kan word tot enige van die volgende:
…
– ‘n handeling van die versekerde terwyl hy/sy onder die invloed van dwelmmiddels of alkoholiese drank is, of terwyl die alkoholinhoud van sy/haar bloed 0.16 gram of meer per 100 ml is”.
Discussion
The insurer repudiated the claim on the basis that the insured negligently exposed himself to danger by being on the wall, and that his blood alcohol count at the time of death was 0.43 g/100 ml, which in their view meant that his death could be traced to his action (being on the wall) while his blood alcohol exceeded the limit.
The complainant’s attorneys argued that the inquest report made no finding that the deceased had negligently or intentionally exposed himself to danger; the finding was that S was responsible. Furthermore, notwithstanding the insured’s blood alcohol level, there was no indication that the death could be traced to an action of the insured while “over the limit”; they maintained that the insurer seemed to accept that if his blood alcohol was over the limit his death could automatically be traced to his action.
Result
We noted that this was a classic situation where the probabilities were in balance, there were weaknesses on both sides, and it was extremely difficult to make a finding on the facts. We proposed that the parties split the amount at stake, and that the insurer pay a benefit of 50%. The parties agreed to this. The complainant’s attorney thanked the office for assisting in the resolution of a struggle that had lasted years, “like Solomon of old”!
SM
October 2005
