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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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)).