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Morgan v. Fortis Benefits Insurance Co.2/11/2005
No. 5868
I. INTRODUCTION
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), Alurac's beneficiary, appeals, arguing that an issue of fact remains as to whether Alurac's death was caused by her intoxication. Because the only reasonable conclusion to be drawn from the evidence in this case is that Alurac's 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 Miller's police report, " 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 Fortis's 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 Fortis's motion for summary judgment and oral argument was held. Judge Wood entered an order granting summary judgment to Fortis. Judge Wood denied Morgan's 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 Alurac's 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 th
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