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Morgan v. Fortis Benefits Insurance Co. (02/11/2005) sp-5868
Morgan v. Fortis Benefits Insurance Co. (02/11/2005) sp-5868
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JAMES F. MORGAN, SR., individually )
and as Personal Representative for ) Supreme Court No. S-11000
the Estate of Martina Alurac, )
Deceased 10/01/99, )
)
Appellant, )
) Superior Court No.
v. ) 4FA-01-2266 CI
)
FORTIS BENEFITS INSURANCE CO., ) O P I N I O N
)
Appellee. ) [No. 5868 - February 11, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mark I. Wood, Judge.
Appearances: Ward Merdes, Merdes & Merdes,
P.C., Fairbanks, for Appellant. Robert P.
Blasco, Robertson, Monagle & Eastaugh,
Juneau, and Joshua Bachrach, Rawle &
Henderson, Philadelphia, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
I. We are presented with the issue of whether summary
judgment was properly granted to Fortis Benefits Insurance
Company (Fortis) on the application of certain exclusions found
in an accidental death and dismemberment insurance policy
covering Martina Alurac (Alurac). James F. Morgan, Sr. (Morgan),
Aluracs beneficiary, appeals, arguing that an issue of fact
remains as to whether Aluracs death was caused by her
intoxication. Because the only reasonable conclusion to be drawn
from the evidence in this case is that Aluracs accident was at
least indirectly caused by her intoxication, we affirm the
judgment of the superior court.
II. FACTS AND PROCEEDINGS
In the early morning of October 1, 1999, Alurac was
killed when her Subaru wagon ran off the road and struck a
telephone pole near the intersection of the Old Richardson
Highway and Ruby Street in North Pole. Officer Jon Miller
discovered Alurac dead inside her car at 2:28 A.M. According to
Millers police report, [t]here were several tire marks on the Old
Richardson Highway leading to the east side of Ruby St. They
were arranged in a pattern that indicated that the vehicle had
been going sideways prior to Ruby St. The roads were dry and
there was no snow or ice on them. A pair of clogs was found under
the control pedals and Alurac was found with her head and neck
pressed against the passenger rear corner of the vehicle with no
shoes on. According to Morgan and Guyton Harrison, Alurac had
been drinking at a bar called the Refinery Lounge on the evening
before the accident. The medical examiner found that Alurac had
a blood alcohol content percentage of 0.247 at the time of her
death.
On October 1, 2001, Morgan filed a complaint against
the Refinery Lounge and its owners, the bartender, and various
insurance companies including Fortis. In his common facts
section of the complaint, Morgan alleged that Alurac left the
Refinery with a blood alcohol content well above the legal limit
in Alaska and got into her vehicle and drove less than a mile
from the Refinery when the fatal crash occurred. Against Fortis,
Morgan alleged that while an accidental death and dismemberment
benefit in the amount of $25,000 had been paid, Fortis had failed
to pay the additional $25,000 owed under the automobile accident
benefit provision. Morgan claimed that Fortiss denial of
benefits was a breach of contract and an unfair/deceptive trade
and claim practice, made negligently and/or in bad faith,
entitling plaintiffs to compensatory and punitive damages.
Fortis moved for summary judgment based on the intoxication
exclusion, the violation of traffic laws exclusion, and a claim
that the loss was not accidental. Morgan filed his opposition to
Fortiss motion for summary judgment and oral argument was held.
Judge Wood entered an order granting summary judgment to Fortis.
Judge Wood denied Morgans motion for limited reconsideration
finding no material issue of disputed fact as to the application
of the intoxication exclusion and the violation of traffic laws
exclusion. The order stated in part:
Summary judgment is appropriate in this case
because there is no genuine issue of material
fact that Martina Alurac was (1) violating
the law by driving while intoxicated, and (2)
that her intoxicated driving was directly or
indirectly the cause of her death. On the
facts presented to the court, a reasonable
person would regard Aluracs intoxication as a
cause of the accident that led to her death
and attach responsibility to it. Robles v.
Shoreside Petroleum, Inc., 29 P.3d 838, 841
(Alaska 2001). The efficient proximate cause
rule does not apply because the language of
the policy exclusions is unambiguous. C.P.
v. Allstate Insurance Co., 996 P.2d 1216,
1228 (Alaska 2000); State Farm v. Bongen, 925
P.2d 1042 (Alaska 1996).
III. STANDARD OF REVIEW
I. This court reviews a superior courts grant of summary
judgment de novo, and will affirm only if there are no genuine
issues of material fact and if the moving party is entitled to
judgment as a matter of law.1 In reviewing the record we draw
all reasonable inferences in favor of the nonmoving party.2
IV. DISCUSSION
In analyzing whether summary judgment was properly
granted, it is helpful to first lay out the general framework
concerning what is required of both the movant and non-movant.
Initially, the moving party must show that there is no genuine
issue of material fact remaining for trial and that it is
entitled to judgment as a matter of law.3 This showing must be
based on admissible evidence.4 Once this has been done, the
burden shifts to the non-movant to produce
specific facts showing that [the non-movant]
could produce admissible evidence reasonably
tending to dispute or contradict the
[movant]s evidence, and thus demonstrate that
a material issue of fact existed. In
attempting to satisfy their respective
burdens, the parties may utilize pleadings,
affidavits, and any other materials otherwise
admissible in evidence.[5]
Unsworn assertions of fact in a partys own pleadings and
memoranda are not admissible evidence and cannot be relied upon
to satisfy these burdens.6
Fortis Is Entitled to Summary Judgment Based on the
Intoxication Exclusion.
The superior court granted summary judgment to Fortis
because
there [was] no genuine issue of material fact
that Martina Alurac was (1) violating the law
by driving while intoxicated, and (2) that
her intoxicated driving was directly or
indirectly the cause of her death. On the
facts presented to the court, a reasonable
person would regard Aluracs intoxication as a
cause of the accident that lead to her death.
This refers to two exclusions found in the Fortis insurance
policy. Because we find that summary judgment was proper under
the intoxication exclusion, we do not need to address the
application of the other exclusions advocated by Fortis.
The Accidental Death and Dismemberment Insurance for
You section of the policy contains an exclusion which reads:
We will not pay benefits if the loss results
directly or indirectly from:
. . . .
your intoxication; this includes but is
not limited to operating a motor vehicle
while you are intoxicated.
Intoxication and intoxicated mean your
blood alcohol level at death or
dismemberment exceeds the legal limit
for operating a motor vehicle in the
jurisdiction in which the loss occurs.
The Automobile Accident Benefit section, which provides for a
benefit of an additional $25,000, contains a provision which
reads:
The Exclusions listed under the Accidental
Death and Dismemberment Insurance Coverage
for You will also apply to the Automobile
Accident Benefit.
We construe exclusions of coverage narrowly.7 [W]here
a clause in an insurance policy is ambiguous in the sense that it
is reasonably susceptible to more than one interpretation, the
court accepts that interpretation which most favors the insured.
Grants of coverage should be construed broadly while exclusions
are interpreted narrowly . . . . 8
Morgan argues that it was improper for the superior
court to award summary judgment under the intoxication exclusion
because Fortis failed to prove that Aluracs death was causally
connected to her intoxication as required by the text of the
exclusion. Morgan alleges that Fortis must provide that Martinas
intoxication was the cause not just a cause. This is in direct
contradiction to the text of the exclusion, which states that
loss must result directly or indirectly from the intoxication.
In State v. Arbuckle, this court applied an exclusion preventing
coverage for a loss resulting directly or indirectly from illness
or disease.9 The insured died after unloading a truck at work
exacerbated his heart condition, causing a fatal heart attack.10
We held that the exclusion applied even though the unloading of
the truck also contributed to the insureds death. It was enough
that his disease was at the very least an indirect cause.11
Because the intoxication exclusion also uses the directly or
indirectly language, Fortis is not required to show that
intoxication was the only cause of Aluracs death, only that it
was a contributing cause.
In support of its motion for summary judgment based on
the intoxication exclusion, Fortis relies on the medical
examiners finding that Aluracs blood alcohol level at death was
0.247% and on Morgans assertions in his complaint that Alurac
left the bar with her blood alcohol above the legal limit and
then drove away in her car. The police report states that [t]he
roads were dry and there was no snow or ice on them. The diagram
of the accident shows that the road on which Alurac was driving
was straight. Considering the fact that the only witness to this
accident is deceased, Fortis has presented sufficient
circumstantial evidence to show that Aluracs death was directly
or indirectly related to her intoxication. This shifts the
burden to Morgan to present evidence raising an inference that
Aluracs intoxication was not a direct or indirect cause of the
accident.
Morgan seems mainly to rely on the argument that Fortis
has not produced enough evidence to sustain its burden to prove a
causal link between the intoxication and the accident by a
preponderance of the evidence. Morgan argues that the accident
may have been caused by Aluracs taking Tylenol 3 with codeine.
In support of this, Morgan presented to the superior court a copy
of a prescription written for Alurac on the day before her death
for Tylenol 3, which contains codeine. Tylenol with codeine is
known to impair a persons ability to drive a car. Morgan argues
that the accident could have been caused by the codeine in
Aluracs system instead of the alcohol. Fortis replies that the
medical examiners drug screen was negative. Also, Fortis points
out that taking Tylenol with codeine and drinking alcohol
produces an additional depression of the central nervous system
so that the alcohol in her system would still be an indirect
cause of the accident. Finally, Fortis argues that taking the
drug with alcohol is not taking it as prescribed by a doctor,
which would fall under the exclusion for losses directly or
indirectly resulting from the use of any drug, unless you use it
as prescribed by a doctor. Even assuming that Aluracs doctor did
not tell her not to drink while taking the Tylenol with codeine
and that she did in fact take the codeine, it would still be
unreasonable to conclude that the extremely high level of alcohol
in Aluracs system did not at least indirectly cause the accident.
The codeine would only make what was already an impaired state
even worse.
With respect to other possible causes alternative to
the intoxication theory, Morgan suggests that
it might have been a moose. It might have
been slippery roads. It might have been a
nefarious black sedan and indeed, it might
even have been intoxication. In any case,
this question is not for the Trial Court, but
for a jury to decide after hearing all the
facts.
The problem is that Morgan does not provide us with any of the
facts that he claims the jury must hear to decide this causation
issue. Mere assertions of fact and unsubstantiated suppositions
are not enough to overcome a motion for summary judgment.12
Morgan is entitled to all reasonable inferences at the summary
judgment stage, but without any admissible evidence suggesting an
alternative cause for the accident or explaining how a blood
alcohol level of 0.247% did not at least indirectly cause Aluracs
death, it is not reasonable to infer that the intoxication
exclusion does not apply. Consequently, summary judgment to
Fortis was proper.
V. CONCLUSION
The superior courts award of summary judgment is
AFFIRMED.
_______________________________
1 Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026,
1029 (Alaska 1999).
2 Id.
3 Brock v. Rogers & Babler, Inc., 536 P.2d 778, 782
(Alaska 1975).
4 Id.
5 Miller v. City of Fairbanks, 509 P.2d 826, 829 (Alaska
1973) (footnotes omitted).
6 Brock, 536 P.2d at 783.
7 D.D. v. Ins. Co. of N. Am., 905 P.2d 1365, 1368 (Alaska
1995).
8 Bering Strait Sch. Dist. v. R.L.I. Ins. Co., 873 P.2d
1292, 1295 (Alaska 1994) (citation omitted) (quoting Hahn v.
Alaska Title Guar. Co., 557 P.2d 143, 145 (Alaska 1976)).
9 941 P.2d 181, 184 (Alaska 1997).
10 Id. at 184-85.
11 Id. at 185.
12 French v. Jadon, Inc., 911 P.2d 20, 26 (Alaska 1996)
(citing State, Dept of Highways v. Green, 586 P.2d 595, 607 n.32
(Alaska 1978)).
