                 IN THE SUPREME COURT OF TENNESSEE
                            AT KNOXVILLE




                                         FOR PUBLICATION

                                       Filed: September 3, 1996


DANNY RAY HARRELL,               )
                                 )       KNOX CHANCERY
      Plaintiff-Appellant,       )
                                 )
                                 )       HON. H. DAVID CATE,
Vs.                              )         CHANCELLOR
                                 )
THE MINNESOTA MUTUAL LIFE        )
INSURANCE COMPANY,               )
                                 )     NO. 03-S-01-9508-CH-00098
      Defendant-Appellee.        )




For Appellant:                   For Appellee:

Rufus W. Beamer, Jr.             Arthur G. Seymour, Jr.
Knoxville, Tennessee             Robert L. Kahn
                                 FRANTZ, McCONNELL & SEYMOUR
                                 Knoxville, Tennessee




                             OPINION




COURT OF APPEALS REVERSED;
REMANDED TO TRIAL COURT.                          ANDERSON, J
       We granted this appeal to determine whether we should retain "the

Distretti Rule1" adopted by this Court sixty-seven years ago. The rule provides

that before a death will be considered accidental under the terms of an insurance

contract, the means, as well as the result, must be involuntary, unexpected, and

unusual.



       In this case, the Chancellor held that the plaintiff's death in an automobile

collision was caused by her driving under the influence of an intoxicant, and it

therefore was not "death by an accidental injury which was unintended,

unexpected, and unforeseen" and, as a result, benefits were not payable on the

insurance contract. The Court of Appeals, while noting that the rule had been

criticized and rejected by a number of jurisdictions, nevertheless affirmed.



       After careful consideration, we have determined that we should join the

growing number of jurisdictions which have abandoned the distinction between

"accidental means" and "accidental results." W e do so because the distinction is

contrary to the understanding and reasonable expectations of the average

insurance policyholder and contrary to the plain meaning of the terms of the

insurance contract. We also think there is a fundamental flaw in analyzing

insurance contract terms under tort principles, such as foreseeability. We,

therefore, overrule Distretti and its progeny, reverse the Court of Appeals, and

remand this case to the trial court for entry of a judgment in favor of the plaintiff.




       1
           Mutua l Life Ins. Co . of New York v. D istretti, 159 Tenn. 138, 17 S.W .2d 11 (1929).



                                                  -2-
                                       BACKGROUND

        On December 18, 1990, at approximately 9:30 p.m., Robin Denise Harrell

died as a result of injuries she sustained in an automobile collision on

Maynardville Highway, a four-lane road divided by a grass median in Knox

County, Tennessee. The car Robin Harrell was driving crossed the grass

median and struck two southbound cars. Tests performed on a blood sample

taken after Harrell’s death revealed a blood-alcohol level of .20 percent.2



        At the time of her death, Robin Harrell and her husband, Danny Ray

Harrell, the plaintiff in this appeal, were insured under a credit life policy issued

by the defendant, The Minnesota Mutual Life Insurance Company (hereafter

“Minnesota Life”). This policy provides for payment of the balance of the

mortgage on the home owned by Robin and Danny Ray Harrell in the event

either suffered death by “accidental injury.” At the time of Robin Harrell’s death,

the mortgage balance was approximately $48,000. With regard to coverage for

accidental death, the policy provided as follows:



                What does death by accidental injury mean?

                Death by accidental injury as used in this certificate
                means that your death results, directly and
                independently of all other causes, from an accidental
                drowning or from an accidental injury which was
                unintended, unexpected and unforeseen. . . .



        Danny Ray Harrell filed a claim with Minnesota Life for payment under the

policy, but Minnesota Life denied the claim. Harrell, thereafter, brought this

action seeking to recover under the policy. For answer, Minnesota Life denied

that Robin Harrell died from “an accidental injury which was unintended,

        2
          That level is more than twice the .08 percent required to “create a presumption” that
Harrell was “under the influence” of an intoxicant and her driving ability was impaired. Tenn. Code
Ann. § 55-10-408(b)(1995 Supp.).

                                               -3-
unexpected, and unforeseen.” Instead, Minnesota Life argued that her death

was the foreseeable consequence of driving an automobile under the influence

of alcohol.



       Following a bench trial, the Chancellor, relying upon a prior decision of

this Court, Mutual Life Insurance Co. of New York v. Distretti, 159 Tenn. 138, 17

S.W.2d 11 (1929), and a long line of authority applying “the Distretti rule,”

dismissed the case, finding specifically that Robin Harrell’s death did not result

“directly and independently of all other causes . . . from an accidental injury

which was unintended, unexpected, and unforeseen.” Danny Harrell appealed,

arguing that the Distretti rule should be modified or overturned. While noting that

the rule has been criticized and rejected by a number of jurisdictions, the Court

of Appeals affirmed the Chancellor, stating that “Tennessee remains committed

to the rule that before a death will be considered accidental the means as well

as the result must be involuntary, unexpected, and unusual.” (Emphasis

added.)



       Thereafter, we granted the plaintiff permission to appeal to consider this

important question of insurance law -- whether recovery under an accidental

death insurance policy requires that the means causing death, as well as the

resulting death, be involuntary, unexpected, and unusual.



                              ACCIDENTAL DEATH

       In this appeal, Danny Harrell urges this court to abandon the Distretti rule

which differentiates between "accidental means" and "accidental results." Harrell

argues that this Court should adopt a rule that would allow recovery if death is

accidental in the common meaning of the word, regardless of the nature of the

means which precipitated the accidental death, and asserts such a rule is

                                         -4-
consistent with the plain understanding and objectively reasonable expectations

of the average insured.



       Minnesota Life responds that the longstanding rule established by this

Court in Distretti, that death is not “accidental” if it is a foreseeable result of a

voluntary act, should be reaffirmed, and that Robin Harrell’s death was a

foreseeable result of her driving an automobile under the influence of an

intoxicant.



       We begin our analysis of this issue with a review of the case law in this

jurisdiction. The decisions of the lower courts in this case were based upon this

Court’s decision in Distretti interpreting accidental death. There, Distretti was

robbed at gunpoint by bandits. As the bandits were fleeing, Distretti armed

himself, ran outside the store, and opened fire on them. The bandits shot back,

and Distretti was killed. His wife brought suit to recover under a life insurance

policy which paid “upon receipt of due proof that such death resulted from bodily

injury effected solely through external violent and accidental means."

(Emphasis added.) The Distretti court denied recovery, concluding that

Distretti’s death was a foreseeable result of his voluntary act of chasing the

bandits and shooting at them, and therefore, his death was not produced by

“accidental means,” for purposes of the insurance policy.



       The distinction adopted by the Distretti court between death by “accidental

means” and “accidental death” was explained succinctly by Professor Couch as

follows:



       [A]ccidental death is an unintended and undesigned result arising
       from acts voluntarily done, whereas death by accidental means is a
       result arising from acts unintentionally done or events undesignedly

                                           -5-
      occurring. The term ‘accidental means’ refers to the occurrence or
      happening which produces the result, rather than the result; it is
      concerned with the cause of the harm rather than the character of
      the harm.



10 Couch, Insurance 2d (Rev. ed.) § 41:29, pp. 44-45 (1982 & Supp. 1995)

(footnotes omitted). Therefore, under the Distretti rule, a death that is caused by

an insured’s intentional act, or is a foreseeable consequence of an insured’s

voluntary act, is not considered “accidental.” Though the distinction arose in the

Distretti case and other cases where the specific term “accidental means” was

used in insurance contracts, the distinction has been applied in cases, such as

this one, where the term is not a part of the insurance contract. See, e.g.,

Spears v. Commercial Ins. Co. of Newark, N.J., 866 S.W.2d 544 (Tenn. App.

1993). The Distretti rule has never been overruled and has been approved and

applied in various contexts in later Tennessee cases. See, e.g., Seeley v. Pilot

Fire & Cas. Co., 432 S.W.2d 58 (Tenn. 1968); Baker v. National Life & Acc. Ins.

Co., 201 Tenn. 247, 298 S.W.2d 715 (1956); Jones v. Fireman’s Fund American

Life Ins. Co., 731 S.W.2d 532 (Tenn. App. 1986); Nicholas v. Provident Life and

Acc. Ins. Co., 61 Tenn. App. 633, 457 S.W.2d 536 (1970). Indeed, the

distinction between “accidental means” and “accidental results” has been applied

in Tennessee in a case similar to the Harrell case to deny recovery under an

accidental death policy for an insured party who had been killed in a one car

accident while intoxicated. Hobbs v. Provident Life & Acc. Ins. Co., 535 S.W.2d

864 (Tenn. App. 1975). The Hobbs court concluded that “the danger of injury or

death as result of operating a motor vehicle while intoxicated is a foreseeable

one and the appellate courts of this State have repeatedly held that death is not

caused by accidental means, within the meaning of an insurance policy if it is a

foreseeable result of a voluntary and unnecessary act or course of conduct of

the insured.” Id., 535 S.W.2d at 866.


                                        -6-
       While Tennessee has remained committed to the distinction between

“accidental means” and “accidental death,” commentators and many other courts

have criticized the distinction as illusory and contrary to the normal expectations

of the average policy holder.



       The rejection of the distinction between "accidental means" and

"accidental results" was first articulated by Justice Cardozo more than sixty years

ago in dissent in Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 54 S. Ct.

461, 463, 78 L. Ed. 934 (1934). There, the insured died after suffering

sunstroke. The majority said that since the insured voluntarily exposed himself

to the sun and there were no unforeseen intervening causes, the death was not

caused by accidental means. Id., 291 U.S. at 496, 54 S. Ct. at 462. Justice

Cardozo strongly disagreed:



              The attempted distinction between accidental results and
       accidental means will plunge this branch of the law into a
       Serbonian Bog. Probably it is true to say that in the strictest sense
       and dealing with the region of physical nature there is no such thing
       as an accident. . . . On the other hand, the average man is
       convinced that there is, and so certainly is the man who takes out a
       policy of accident insurance. It is his reading of the policy that is to
       be accepted as our guide, with the help of the established rule that
       ambiguities and uncertainties are to be resolved against the
       company. . . . When a man has died in such a way that his death
       is spoken of as an accident, he has died because of an accident,
       and hence by accidental means. . . . If there was no accident in
       the means, there was none in the result, for the two are
       inseparable. . . . There was an accident throughout, or there was
       no accident at all.


Id., 291 U.S. at 499, 54 S. Ct at 463 (Cardozo, J., dissenting). Justice Cardozo’s

views in dissent have now gained the support of the great majority of

jurisdictions.




                                         -7-
        Professor Appleman also illustrates the fallacy of the distinction as

follows:


         Almost every action we take has some element of design; if we
         drive an automobile upon the highway, where another collided with
         us, could this not have been foreseeable, or at least within the
         realm of potential so far as the “means” were concerned? Every
         instance where a person walks, or jumps, and slips or falls, comes
         within a like category. To permit a rigid construction of such
         expressions is to permit a deception to be practiced upon the
         public. . . .


1A Appleman, Insurance Law & Practice, § 363 at p. 492 (1981 & Supp. 1995).



        Although a few courts in other jurisdictions still cling to the distinction,3

most courts have either abolished the distinction or refused to recognize it in the

first place when considering whether a particular death or injury is accidental. 4

Under the more recent cases, the unexpected consequences of an individual’s

voluntary behavior provide the accidental element for purposes of an insurance

policy. Carroll v. CUNA Mut. Ins. Soc., 894 P.2d at 751.




        3
         See, e.g., W eil v. Federa l Kem per Life A ssur. C o., 866 P.2d 774 (Cal. 1994)(In Bank );
Smith v. Continental Cas. Co., 203 A.2d 168 (D .C. App . 1964); Evans v. Metropolitan Life Ins. Co.,
174 P.2d 961 (W ash. 1946).

        4
           INA Life In s. Co . v. Bru ndin , 533 P.2d 236 (Ala ska 19 75); Knight v. Metropolitan Life Ins.
Co., 437 P.2d 416, 420 (Ariz. 1986 ); Carroll v. CUNA Mut. Ins. Soc., 894 P.2d 746 (Colo. 1995);
Gulf Life Ins. Co. v. Nash, 97 So. 2d 4, 10 (Fla. 1 957); Dawson v. Bankers’ Life Co., 247 N.W .
279, 282 (Iowa 19 33); Fryman for Fryman v. Pilot Life Ins. Co., 704 S.W .2d 205, 206 (Ky. 1986);
Schonberg v. New York Life Ins. Co., 104 So . 2d 171 (L a. 1958) ; Collins v. Nationwide Life Ins.
Co., 294 N.W .2d 194, 1 96 (Mic h. 1980) ; Taylor v. New York Life Ins. Co. 222 N.W. 912 (Minn.
1929); Murphy v. Travelers Ins. Co., 2 N.W .2d 576, 5 80 (Ne b. 1942) ; Catania v. State Farm Life
Ins. Co., 598 P.2d 631, 633 (Nev. 19 79); Scott v. New Empire Ins. Co., 400 P.2d 953, 955 (N.M.
1965); Burr v. Co mm ercia l Tra veler s Mu t. Acc . Ass ’n, 67 N.E.2 d 248, 25 2 (N.Y. 19 46); Cooper v.
New York Life Ins. Co., 180 P.2d 654 (O kla. 194 7); Botts v. Hartford Acc. & Indem. Co., 585 P.2d
657, 660 (Or. 197 8); Beckham v. Travelers Ins. Co., 225 A.2d 532, 534 (Pa. 196 7); W est v.
Comm ercial Ins. Co. of Newark, N.J., 528 A.2d 339 (R .I. 1987); Republic Nat. Life Ins. Co. v.
Heyward, 536 S.W .2d 549, 5 57 (Te x. 1976 ); Carter v. Standard Acc. Ins. Co., 238 P. 259, 275
(Utah 1 925); W iger v. Mut. Life Ins. Co. of New York, 236 N.W . 534, 538 (W is. 1931); W ickman v.
Northwestern Nat. Ins. Co., 908 F.2 d 1077 (1st Cir. 19 90); W hitaker v. State Farm Mu t. Auto Ins.
Co, 768 P.2d 320 (Ka n. App. 19 89); Cons ume rs Life Ins . Co. v. Sm ith, 587 A.2d 1119,1124-25
(Md. Ap p. 1991) ; see also John D . Ingram and Lynn e R. Os tfeld, The Distinction Between
Accidental Means and Accidental Results in Accidental Death Insurance, 12 Fla. St. U. L. Rev. 1,
9 (1984 ); 1A App lema n, Insurance Law and Practice, § 360, pp. 475-76.

                                                   -8-
       A good example of the persuasive analysis used in such cases is

provided by the Texas Supreme Court, which abandoned the distinction between

"accidental means" and "accidental results," reasoning as follows:



       Texas courts have waded through Justice Cardozo’s Serbonian
       bog, and we are now convinced that the terms ‘accidental death’
       and ‘death by accidental means’ as those terms are used in
       insurance policies, must be regarded as legally synonymous unless
       there is a definition in the insurance contract itself which requires a
       different construction. These terms in an insurance contract should
       be given their ordinary and popular meaning according to the
       understanding of the average man; the court’s guide should not be
       the technical meaning of the words used, but rather the intention of
       the parties as inferred from the contract as a whole. A fine
       distinction between means and results would never occur to
       an average policyholder, and the insurer should not be able to
       escape liability by resort to such a technical definition. If the
       insurer wishes to distinguish between accidental results and
       injuries caused by accidental means, he should do so
       expressly, so as to give the policyholder clear notice of any
       limitations of liability which the insurer wishes to impose by
       use of the latter term.



Republic Nat. Life Ins. Co. v. Heyward, 536 S.W.2d at 557 (emphasis added).

Like the Texas Supreme Court, almost every court rejecting or abandoning the

distinction has found the distinction contrary to both the plain meaning of the

terms and the understanding and reasonable expectations of the average

policyholder. See, e.g., Carroll v. CUNA Mut. Ins. Soc., 894 P.2d at 753; Buck v.

Gulf Life Ins. Co., 548 So. 2d at 718. In addition, many courts have concluded

that the distinction itself arises from an inappropriate importation of the tort

concept of foreseeability into private insurance contracts.



       For example, the Michigan Supreme Court, in Collins v. Nationwide Life

Ins., explained that “neither the level of foreseeability requisite for tort liability nor

for criminal recklessness is sufficient to render a mishap a 'nonaccident' when

conduct is measured against the terms of an accidental death insurance policy.”


                                           -9-
Id., 294 N.W.2d at 196. In a similar fashion, the Kentucky Supreme Court

observed that the “fundamental flaw” with the distinction between accidental

means and accidental results is “that it subjects contract terms to analysis under

tort principles, such as fault and foreseeability.” Fryman v. Pilot Life Ins. Co.,

704 S.W.2d at 206. In rejecting the distinction, the Kentucky Court said “we are

reluctant to analyze contract terms under principles which have technical

meaning in other areas of the law.” Id.



       After careful consideration and a thorough review of the cases on the

subject, we are persuaded that the better reasoned, more logical approach is to

abandon the distinction between "accidental means" and "accidental results."

Tennessee, therefore, joins the growing number of jurisdictions which have

emerged from the “Serbonian bog.”



       The analysis used in construing insurance contracts is well settled. Like

other contracts, insurance contracts should be construed so as to give effect to

the intention and express language of the parties. Tata v. Nichols, 848 S.W.2d

649, 650 (Tenn. 1993). Words in an insurance policy are given their common

and ordinary meaning, with ambiguous language construed against the

insurance company and in favor of the insured. Id. The distinction we had

adopted in Distretti is contrary to those now familiar rules of construction. In our

view, an insured should not have to consult a long line of case law or law review

articles and treatises to determine the coverage he or she is purchasing under

an insurance policy. Policy language should be given its plain meaning, unless a

technical meaning is clearly provided in the insurance policy. Elsner v. Walker,

879 S.W.2d 852 (Tenn. App. 1994). As the Texas Supreme Court recognized, it

is inconceivable that the average insured would understand the fine distinction

between "accidental means" and "accidental results."

                                         -10-
       In addition, we agree that the importation of the tort principle of

foreseeability into the interpretation of a private insurance contract is

inappropriate. As Justice Mosk observed in dissent in Weil v. Federal Kemper

Life Assur. Co., “[t]he insurance company does not represent the public safety

concerns of society but the commercial interest of its owners. Nor was the

company forced to issue the policy; it voluntarily did so for the purpose of

profiting from the transaction.” Id., 866 P.2d at 806. Insurance companies draft

the policies they sell and are, therefore, free to exclude injury or death that

results from reckless and foolhardy acts. With simplicity and clarity of expression

they may remove all doubt. Knight v. Metropolitan Life Ins. Co., 437 P.2d at 420.




       Accordingly, Distretti, its progenitors and progeny are overruled. From

this day forward, in Tennessee law there is no distinction between "accidental

death" and death by "accidental means" in determining coverage under an

insurance policy. Instead, if death is the unanticipated and unexpected result of

an intentional, voluntary act, it is accidental in the ordinary and plain sense of the

word and recovery is available under an accidental death insurance policy.

Accidental deaths or injuries which are included within this definition, but which

the insurance company does not intend be covered, can be specifically excluded

in the insurance policy.



       Where, as here, the insured died as the result of an intentional act, such

as voluntary intoxication, but did not intend or expect death to result, such death

is accidental for the purposes of an accidental death policy. Accordingly, we

conclude that Robin Harrell’s death resulted from an “accidental injury which was

unintended, unexpected and unforeseen.”




                                         -11-
                                   CONCLUSION

       Because we conclude that the distinction between “accidental means” and

“accidental results” is illusory, for the reasons previously articulated, we abandon

the distinction. Accordingly, the Court of Appeals’ judgment is reversed, and the

cause is remanded to the trial court for entry of judgment in favor of the plaintiff,

Danny Ray Harrell. Costs of this appeal are taxed to the defendant, The

Minnesota Life Insurance Company, for which execution may issue if necessary.



                                           ________________________________
                                           RILEY ANDERSON, JUSTICE


CONCUR:

Birch, C.J.
Drowota, Reid, and White, JJ.




                                         -12-
