{
  "id": 8554237,
  "name": "WILLIAM DIXON v. MID-SOUTH INSURANCE COMPANY",
  "name_abbreviation": "Dixon v. Mid-South Insurance",
  "decision_date": "1978-08-15",
  "docket_number": "No. 778DC840",
  "first_page": "595",
  "last_page": "600",
  "citations": [
    {
      "type": "official",
      "cite": "37 N.C. App. 595"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "16 S.E. 2d 687",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1941,
      "opinion_index": 0
    },
    {
      "cite": "220 N.C. 148",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11299884
      ],
      "year": 1941,
      "opinion_index": 0,
      "case_paths": [
        "/nc/220/0148-01"
      ]
    }
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  "analysis": {
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    "sha256": "339868b46d6b058000d25062dae9e42676901488e5f26fd671f3a921209349ad",
    "simhash": "1:b527f604ac8535f0",
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  "last_updated": "2023-07-14T22:58:37.287571+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges BRITT and ARNOLD concur."
    ],
    "parties": [
      "WILLIAM DIXON v. MID-SOUTH INSURANCE COMPANY"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nThere are two basic questions raised by this appeal, the answers to which are determinative of the entire controversy:\n1. Does the language of the policy of insurance in question obligate defendant only if the insured\u2019s injury was caused by accidental means, or is defendant obligated upon a finding of accidental injury?\n2. Was the air embolism which caused insured\u2019s death an accidental bodily injury under the terms of the policy in question?\nThe rule is clear in this State that policies of insurance, having been prepared by the insurer, will be liberally construed in favor of the insured, and strictly against the insurer. Since the words used in an insurance policy have been selected by the insurance company, any ambiguity or uncertainty as to their meaning must be resolved in favor of the policyholder, or the beneficiary, and against the company. See cases cited in 7 Strong\u2019s, N.C. Index 3rd, Insurance, \u00a7 6.2. We do not feel that terms of the insurance policy in question in this case are ambiguous, but if they were, the above rule would apply.\nThe Courts of this State have clearly adopted the view that there is a distinct difference between a policy which provides coverage for \u201caccidental injury\u201d and a policy which provides coverage for \u201cinjury by accidental means\u201d. A sufficient discussion of the difference between \u201caccidental injury\u201d and \u201cinjury by accidental means\u201d, and their equivalents, can be found in the citations and annotations collected in 7 Strong\u2019s, N.C. Index 3rd, Insurance, \u00a7 45, et seq., and we need not belabor that question here.\nThe insurance policy involved in this lawsuit clearly falls within the \u201caccidental injury\u201d class of coverage. It provides for coverage for \u201closs resulting solely from accidental bodily injuries\u201d. \u201cThe words \u2018accident\u2019 and \u2018accidental\u2019 have never acquired any technical signification in law, and when used in an insurance contract are to .be construed and considered according to the ordinary understanding and common usage and speech of people generally.\u201d 44 Am. Jur. 2d, Insurance, \u00a7 1219 p. 64. If the defendant had desired to draft its insurance contract to cover only \u201cinjury by accidental means\u201d, it could have done so. Such a distinction has long been recognized in this State. See Fletcher v. Trust Co., 220 N.C. 148, 16 S.E. 2d 687 (1941).\nOur answer to the first question posed above is that a finding of \u201cinjury by accidental means\u201d is not required, and that defendant is obligated under its contract upon a finding that Ella Mae Dixon died from \u201caccidental injury\u201d.\nEven so, defendant argues that the evidence does not support the trial court\u2019s finding and conclusion that Ella Mae Dixon died as a result of accidental bodily injuries. We disagree. The following findings of fact were made by the trial judge from competent evidence offered at trial:\n\u201cThat shortly prior to August 28, 1975, the insured, Ella Mae Sutton Dixon, a 45 year old black female, was referred by her family physician to North Carolina Memorial Hospital at Chapel Hill, North Carolina, for treatment of a malignant cancerous tumor under her left arm. That on August 19, 1975, the insured, Ella Mae Sutton Dixon met with Dr. Herbert J. Proctor, a general surgeon, at North Carolina Memorial Hospital who examined her and told her that an operation was needed to remove her left shoulder and arm and that if this operation was not undertaken the cancer would kill her. That after some deliberation the insured consented to the operation.\nThat on August 28, 1975, the insured underwent the operation for the removal of her left arm and shoulder at North Carolina Memorial Hospital in Chapel Hill. The chief surgeon during said operation was Dr. Herbert J. Proctor. Dr. Frantz and Dr. Kimbro also assisted in the operation. There were also medical personnel in charge of anesthesia and nurses present at various times during the operation.\nThe operation began at about 2:30 p.m., August 28, 1975, and was completed at approximately 5:30 p.m. That Dr. Proctor and all medical personnel exercised extreme caution and care for the safety of the insured. That nothing unusual occurred during the operation and the operation was considered to be a successful surgical operation. That Dr. Proctor left the operating room at about 5:30 p.m. as the incision was being closed. That at this time Dr. Proctor felt the operation had been successful and that the operation had gone as planned in all respects. That the insured was alive at 5:30 p.m., August 28, 1975. That at about 6:15 p.m. on August 28, 1975, Dr. Proctor was informed by Dr. Frantz that the insured had died.\nThat on August 29, 1975, an autopsy was performed upon the insured, Ella Mae Sutton Dixon. That the autopsy took approximately three hours and was performed to determine the cause of death of Ella Mae Sutton Dixon.\nThat Ella Mae Sutton Dixon died on August 28, 1975 as a result of an air embolism. That her death was not intended, not foreseen and not expected. That her death was unusual and did not happen in the ordinary course of things.\nThat although death by air embolism is always a remote possibility in operations such as this one, it is a possibility in many surgical operations and procedures and it is considered a very slight risk or probability. That all precautions were taken during the operation to guard against air embolism. That the death of Ella Mae Sutton Dixon by air embolism was not foreseen, not expected and not intended by anyone.\nThat the insurance policy in question provides coverage for loss of life \u2018resulting solely from accidental bodily injuries\u2019. That the policy in question is not an \u2018accidental means\u2019 policy.\nThat the insured, Ella Mae Sutton Dixon, died on August 28, 1975, as a result of accidental bodily injuries.\u201d\nDefendant makes a strong jury argument upon its view of the evidence. Defendant argues that decedent underwent a drastic and major operation involving the removal of her entire left arm and shoulder; that an air embolism is a known risk and danger of the forequarter amputation type surgery which decedent underwent; the nature of the operation itself was a contributing factor to her death, and she did not die \u201csolely from accidental bodily injuries\u201d; and that her death, therefore, was not within the policy coverage. The argument is interesting but not convincing. Defendant would have us overlook the competent evidence from which the trial judge made his findings of fact.\nOur answer to the second question posed above is that the air embolism which caused Ella Mae Dixon\u2019s death was an accidental bodily injury under the terms of the contract of insurance.\nAffirmed.\nJudges BRITT and ARNOLD concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Gerrans and Spence, by William D. Spence, for the plaintiff appellee.",
      "McLeod and Senter, by William L. Senter, for the defendant appellant."
    ],
    "corrections": "",
    "head_matter": "WILLIAM DIXON v. MID-SOUTH INSURANCE COMPANY\nNo. 778DC840\n(Filed 15 August 1978)\nInsurance \u00a7 45\u2014 air embolism as cause of death \u2014 death from accidental injury \u2014 insurer obligated\nA contract of insurance which provided coverage for \u201closs resulting solely from accidental bodily injuries\u201d did not require a finding of \u201cinjury by accidental means\u201d for defendant to be obligated; rather, defendant was obligated under its contract upon a finding that insured died from accidental injury, and an air embolism which occurred after surgery removing insured\u2019s left arm and shoulder and which caused her death was an accidental bodily injury under the terms of the contract of insurance.\nAPPEAL by defendant from Exum, Judge. Judgment entered 14 June 1977 in District Court, LENOIR County. Heard in the Court of Appeals 29 June 1978.\nPlaintiff is the beneficiary under Policy No. 150304 issued by defendant to Ella Mae Dixon, plaintiffs wife, which obligates defendant to pay for \u201closs resulting solely from accidental bodily injuries sustained while this policy is in force, hereinafter referred to as \u2018Injuries\u2019.\u201d Thereafter the policy contains an \u201cAccidental Death Benefit\u201d of $2,000 in the following terms:\n\u201cIf the Insured sustains \u2018Injuries\u2019 which shall result in the death of the Insured within ninety (90) days from the date of the accident, the Company will pay the Accidental Death Benefit. In addition, the Company will pay the amount of ten (10%) per cent of such Accidental Death Benefit to the beneficiary each month for twelve (12) consecutive months following the date of death of the Insured. Benefits under this Part 1 shall be in lieu of all other benefits provided by this policy.\u201d\nElla Mae Dixon died 28 August 1975 at North Carolina Memorial Hospital, Chapel Hill, following the surgical amputation of her entire left arm and shoulder to remove a cancerous tumor underneath her arm. The cause of death was determined to be an air embolism in the right ventricle of the heart.\nPlaintiff filed proof of loss with defendant but defendant denied liability. The date of death, the relationship of the insured and beneficiary, and the existence of the policy in full force and effect on the date of insured\u2019s death were stipulated. It was also stipulated that, if the loss was covered under the policy, the beneficiary was entitled to recover $4,400.\nThe trial judge made findings of fact and concluded, inter alia, the following:\n\u201cThat the policy in question is an \u2018accidental death\u2019 policy as distinguished from an \u2018accidental means\u2019 policy and does not require, as a prerequisite to coverage, for the insured to die of \u2018accidental means\u2019, but merely requires death resulting from accidental bodily injuries.\nThat the insured, Ella Mae Sutton Dixon, died as a result of accidental bodily injuries.\u201d\nJudgment was entered in favor of plaintiff for $4,400 plus interest from 28 August 1975 until paid, and for the costs. Defendant appealed.\nGerrans and Spence, by William D. Spence, for the plaintiff appellee.\nMcLeod and Senter, by William L. Senter, for the defendant appellant."
  },
  "file_name": "0595-01",
  "first_page_order": 623,
  "last_page_order": 628
}