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Heckman v. J.C. Penney Life Insurance Co.11/23/2001
JUDGMENT AFFIRMED
Division IV
Davidson and Ruland, JJ., concur
In this action to recover accidental death insurance benefits, plaintiffs, the Estate of Lucy G. Heckman, Marjorie R. Heckman, acting both as personal representative of the estate and in her own individual capacity, Amy E. Titcombe, and Roxanne L. Desrochers, appeal the judgment entered in favor of defendant, J.C. Penney Life Insurance Company. We affirm.
I.
Lucy G. Heckman (Heckman) purchased two accidental death and dismemberment policies from defendant. Except for the amount of benefits provided, both policies were identical and allowed different levels of benefits, depending upon whether a loss was incurred as a result of a private passenger automobile/land motor vehicle accident.
At about 7 p.m. on May 7, 1997, the 62-year-old Heckman drove her pickup truck through the town of Dunton, Colorado. A mile north and west of Dunton, she encountered snow on a forest service road. When she attempted to back down the road, her pickup truck went off the shoulder of the road, over a small embankment, and became wedged between two trees.
Heckman suffered slight cuts and scratches on her forehead and legs. She spun the truck's tires in an unsuccessful attempt to extricate it from the trees. And, she was conscious and moving about for some time before succumbing to, and dying of, hypothermia twenty feet away from her truck.
Heckman had moved away from, rather than towards, the nearby road. Two full bottles of whiskey were found in her truck; an empty whiskey bottle was found near her body; and a toxicology report indicated that, at the time of her death, her blood alcohol level was .079%.
The coroner's certificate of death listed the immediate cause of Heckman's death as hypothermia, due to or as a consequence of "vehicle disabled in a remote area."
Defendant paid plaintiffs $80,000 in accidental death benefits. Thereafter, plaintiffs sued for breach of contract and bad faith breach of insurance contract, claiming that defendant owed them an additional $165,000 under that part of the policies providing benefits for losses incurred "in consequence of Occupying a Private Passenger Automobile."
The policies set forth the following pertinent definitions:
OCCUPYING means in or in direct contact with.
LOSS means loss of life. Also, Loss as used with reference to a hand or foot means complete severance at or above the wrist or ankle joint. Used with reference to the eye, means total and irrecoverable loss of the entire sight of an eye. Loss does not include loss of use.
INJURY means bodily injury caused by an accident occurring while the insurance is in force resulting:
1. within 90 days after the date of the accident; and,
2. directly and independently of all other causes.
Defendant moved for summary judgment, arguing that: (1) Heckman could not have suffered a compensable bodily injury (death) "in consequence of occupying" her vehicle, because she died not inside, but outside, her vehicle; and (2) no reasonable argument could be made, under the "directly and independently of all other causes" language, that the vehicle's going off the road and getting stuck was the direct and sole cause of her death.
In their response to the motion for summary judgment, plaintiffs argued that defendant had misconstrued the language of the policies and that, to recover the additional moneys, they need show only that: (1) Heckman was injured as a result of occupying the vehicle; and (2) "but for" her operation of the vehicle, she wo
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