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Freeman v. Commonwealth Life Ins. Co.

Supreme Court of Indiana

August 22, 1972, Filed

No. 1170A182


 [*238]   [**396]  This case is before us on a Petition to Transfer, and for the reasons stated herein the petition is denied. The appeal concerns an action for accidental death benefits by the beneficiary of the insured, the alleged aggressor in an encounter in which he was killed by his victim. The insured, Smith, and the victim, Bowling, were apparently friends except when Smith had been drinking. After drinking, Smith allegedly initiated a fracas with Bowling. Smith was shot and killed by a pistol which Bowling had pulled from his pocket during the tussle.

Summary judgment was entered for the insurer on the basis of the "reasonable foreseeability" test which is:

] "[T]hat [***2]  there will be no liability where the harm to the attacker-insured is such a probable and reasonably foreseeable consequence of his aggression that it would not be regarded by the ordinarily reasonable man as 'accidental.'" Freeman v. Commonwealth Life Ins. Co. of Louisville (1971), 149 Ind. App. 211, 213, 271 N. E. 2d 177, 179.

 [**397]  The Appellate Court reversed, holding that there was a genuine issue of fact as to whether the decedent's death was reasonably foreseeable, but additionally that the rule of "reasonable foreseeability" as stated above is not the law in Indiana and should not govern. We agree with the Appellate Court on both positions.

It is clear that even under the "reasonable man" foreseeability test stated above an issue of fact does exist. Accepting for the argument that Smith started the fight there is no evidence that he could have known that Bowling would draw a pistol and shoot him. It is also not clear whether the pistol was fired intentionally, in self-defense, or whether it was discharged accidentally. With this issue very much in doubt, summary judgment is not proper.

 [*239]  The insurer does not base its petition on that issue,  [***3]  but upon the test of "accidental means" adopted by the Appellate Court.  The pertinent portion of the accidental death clause reads:

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259 Ind. 237 *; 286 N.E.2d 396 **; 1972 Ind. LEXIS 467 ***

Martha Smith Freeman v. Commonwealth Life Ins. Co.

Prior History:  [***1]  On petition to transfer.

On petition to transfer as the result of the Appellate Court of Indiana's reversal of the trial court's entry of summary judgment for the insurer in an action for accidental death benefits by the beneficiary of the insured.

Disposition: Transfer denied.


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Insurance Law, Life Insurance, Accidental Death, General Overview