Mesa Oil Company, an Arizona Corporation v. Business Men's Assurance Company of America, a Missouri Corporation

476 F.2d 491 MESA OIL COMPANY, an Arizona corporation, Appellant, v. BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, a Missouri corporation, Appellee. No. 71-1204. United States Court of Appeals, Ninth Circuit. March 6, 1973. Rehearing Denied May 9, 1973. Donald D. Meyers (argued), Phoenix, Ariz., for appellant. Douglas L. Irish (argued), Lewis & Roca, Phoenix, Ariz., for appellee. Before ELY, CARTER and TRASK, Circuit Judges. ELY, Circuit Judge: 1 Appellant, Mesa Oil Company (Mesa) was the named beneficiary of a life insurance policy issued by appellee, Business Men's Assurance Company of America (BMA), on the life of Cletus Chamberlain. The accidental death provision of that policy contained the following exclusion: 2 "RISKS NOT COVERED 3 No benefit will be paid if death results directly or indirectly from . . . taking any . . . drug, voluntarily or involuntarily; . . . ." 4 Chamberlain, the insured, died as a result of the combined effect of barbiturates and alcohol. BMA refused to pay the accidental death benefits, and Mesa brought this suit. 5 The District Court, assuming its diversity jurisdiction, awarded BMA summary judgment. The question presented is whether the meaning…

(dissenting):

Were I deciding this case as an original question I would write much as the author of the majority has done. However, as a diversity case to be decided according to the law of Arizona, I am unable to distinguish it from Malanga v. Royal Indemnity Co., 101 Ariz. 588 , 422 P.2d 704 (1967), and United American Life Insurance Co. v. Beadel, 13 Ariz. App. 196 , 475 P.2d 288 (1970). Those decisions appear to me to require reversal.

Appellant, Mesa Oil Company (Mesa) was the named beneficiary of a life insurance policy issued by appellee, Business Men’s Assurance Company of America (BMA), on the life of Cletus Chamberlain. The accidental death provision of that policy contained the following exclusion :

Chamberlain, the insured, died as a result of the combined effect of barbiturates and alcohol. BMA refused to pay the accidental death benefits, and Mesa brought this suit.

The District Court, assuming its diversity jurisdiction, awarded BMA summary judgment. The question presented is whether the meaning of the word “drug,” as used in the insurance policy, so clearly includes barbituric acid that there is no room for doubt on that point among reasonable men.

The policy fails to provide a definition or explanation of the term “drug.” Arizona law, which is, of course, here controlling, requires undefined insurance policy terms to be defined in the common everyday language of the average layman rather than in either technical medical terms or as statutes would define them. Malanga v. Royal Indemnity Co., 101 Ariz. 588 , 422 P.2d 704 (1967); Dickerson v. Hartford Accident & Indemnity Co., 56 Ariz. 70 , 105 P.2d…