ON REMAND
D.C. RILEY, J.
The Michigan Supreme Court has reversed our original determination of this matter and remanded the case to us for a resolution of whether injury or death resulting from voluntary intoxication can constitute an "accidental injury or death".
Upon consideration of the issue, we approve and adopt the majority rule that a death or injury is accidental only if the agency effecting the death or injury can be termed accidental, that is, unexpected, unanticipated and unforeseen, irrespective of whether the result so qualifies. See, e.g., Perry v Aetna Life Ins. Co. of Connecticut, 380 S.W.2d 868 (Tex Civ App, 1964), Murphy v Western Southern Life Ins. Co., 262 S.W.2d 340 (Mo App, 1953). See also, Wells v Prudential Ins. Co. of America, 3 Mich. App. 220, 226-227; 142 N.W.2d 57 (1968), lv den 378 Mich. 728 (1966). Pursuant to this standard, decedent's voluntary acts of intoxication which resulted in a reasonably foreseeable consequence was not "accidental".
Reversed and remanded for reinstatement of the district court's original judgment.
Costs to defendant.
J.H. GILLIS, J., concurred.
M.F. CAVANAGH, P.J. (dissenting).
In revisiting this matter upon the invitation of our Supreme Court, I find I must disagree with the majority's conclusion.
Rather than look to other jurisdictions, I would prefer to read Wells v Prudential Ins. Co. of America, 3 Mich. App. 220; 142 N.W.2d 57 (1966), lv den 378 Mich. 728 (1966), as authority for holding that, under the terms of this policy, injury or death resulting from voluntary intoxication can constitute an "accidental injury or death". Unlike the policy before us, the policy in Wells, supra, provided that the injury or death must be "effected solely through external, violent and accidental means". Even with this more restrictive language the Wells Court held recovery was possible and stated, at 227:
"If the unintended result of an intentional act can be accidental, so, too, can the result of a completely involuntary act be accidental."
As a general principle, a contract is construed more strictly against the maker who chose the words to which the other party merely assented. 3 Corbin, Contracts § 559, p 262. Applying this principle and the above Wells analysis to the language in the instant policy, a chronic alcoholic's unforeseen death from a single episode of drinking may reasonably be termed an "accidental bodily injury".
The instant policy could have been drafted more restrictively so as to exclude death resulting from intoxication. It was not and therefore I would not preclude recovery.