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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
BETTY L. DUNCAN, Individually and in her Capacity as the
Administrator of the estate of Michael Ray Duncan, Plaintiff, v.
CUNA MUTUAL INSURANCE SOCIETY and CUNA MUTUAL LIFE INSURANCE
Filed: 5 July 2005
1. Insurance--life--exclusion for drug use--exception for prescription drugs--summary
Summary judgment was correctly granted for a life insurance company on the issue of
whether an exclusion for the voluntary use of drugs applied to bar coverage. Although plaintiff-
beneficiary claimed the benefit of an exception to the exclusion for prescription drugs, she was
not able to offer evidence raising an issue of fact.
2. Costs--insurance defense--summary judgment
The trial court did not err by awarding costs to defendants, insurance companies
defending a life insurance claim. The assignment of error concerned the possibility that
summary judgment was incorrectly awarded and the judgment not final, but summary
judgment was correct. Arguments not set out in the assignments of error will not be considered.
Appeal by plaintiff from orders entered 9 March 2004 by Judge
Michael E. Helms, and 28 April 2004 by Judge Catherine C. Eagles,
in Forsyth County Superior Court. Heard in the Court of Appeals 13
Law Offices of Jonathan S. Dills, by Jonathan S. Dills, for
Womble Carlyle Sandridge & Rice, by Reid C. Adams, Jr., and
Bradley O. Wood, for defendant-appellees.
Plaintiff (Betty Duncan) appeals from an order of summary
judgment entered in favor of defendants (Cuna Mutual Ins. Society
and Cuna Mutual Life Ins. Co.) We affirm.
Uncontradicted record evidence tends to show, in pertinent
part, the following: Plaintiff and Michael Duncan (Duncan) weremarried in 1987 and separated in 1998. Duncan had several DWI
convictions and a history of substance abuse. In October 1998,
Duncan purchased a $150,000 life insurance policy (the policy) from
defendants, and named plaintiff as the beneficiary. The policy
contained the following exclusion:
Exclusions. We will not pay a benefit for any
Loss to an Insured Person caused by or
resulting from . . . 8. Voluntary use of any
drug, medicine, or sedative, except as
prescribed by a physician.
On 8 April 2000 Duncan's body was found on a couch in his
living room. Although plaintiff and Duncan separated in July,
1998, they were still married at the time of Duncan's death. An
autopsy was performed, determining the cause of death to be
methadone toxicity. The autopsy report, death certificate, and
medical examiner's report all list the cause of death as methadone
After Duncan's death, plaintiff filed a claim for benefits
under the policy. In response, defendants asked plaintiff for a
list of Duncan's prescriptions, which plaintiff failed to provide.
On 8 April 2003 plaintiff filed suit against defendants,
alleging that defendants had breached the insurance contract, and
seeking benefits under the policy. In their answer, defendants
denied the material allegations of the complaint and asserted
various defenses, including the policy's exclusion for non-
prescribed drugs. After deposing plaintiff, defendants filed a
motion for summary judgment on 5 January 2004, asserting that:
[P]laintiff, by her own admission, can produce
no evidence whatsoever to meet her burden toprove an exception to the exclusion contained
in the life insurance policy in question . . .
in other words, plaintiff cannot prove that
the plaintiff's decedent was prescribed the
methadone which caused his death, nor can
plaintiff otherwise demonstrate the existence
of a genuine issue of material fact for a jury
On 9 March 2004 the trial court entered an order granting summary
judgment for defendants, and on 28 April 2004 the court awarded
defendants $562.24 in costs. Plaintiff timely appealed from both
Standard of Review
Plaintiff appeals from a summary judgment order. N.C.G.S. §
1A-1, Rule 56(c) (2003) provides that summary judgment is proper
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any
party is entitled to a judgment as a matter of law.
[T]he party moving for summary judgment ultimately has the
burden of establishing the lack of any triable issue of fact[,]
Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329
S.E.2d 350, 353 (1985), and evidence presented by the parties must
be viewed in the light most favorable to the non-movant.
Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998) (citation omitted). If a summary judgment
motion is supported as provided in this rule, an adverse party .
. . must set forth specific facts showing that there is a genuine
issue for trial. Rule 56(e). Our Court's standard of review on appeal from summary
judgment requires a two-part analysis. Summary judgment is
appropriate if (1) the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine issue as to any material
fact; and (2) the moving party is entitled to judgment as a matter
of law. Gaunt v. Pittaway, 139 N.C. App. 778, 784, 534 S.E.2d
660, 664 (2000).
 Plaintiff argues first that the trial court erred by
granting summary judgment, on the grounds that the evidence raised
genuine issues of material fact about her entitlement to benefits
under Duncan's life insurance policy. We disagree.
Where interpretation of an insurance policy is at issue, the
initial burden to show coverage is on the insured. Production
Systems v. Amerisure Ins. Co., __ N.C. App. __, __, 605 S.E.2d 663,
665 (2004) (In North Carolina the insured 'has the burden of
bringing itself within the insuring language of the policy.')
(quoting Hobson Construction Co., Inc. v. Great American Ins. Co.,
71 N.C. App. 586, 590, 322 S.E.2d 632, 635 (1984)), disc. review
denied, 359 N.C. 322, 611 S.E.2d 415 (2005). Defendants herein
concede that, except for the exclusion, plaintiff would be entitled
to benefits under the policy.
Once it has been determined that the insuring language
embraces the particular claim or injury, the burden then shifts to
the insurer to prove that a policy exclusion excepts the particularinjury from coverage. Hobson, 71 N.C. App. At 590, 322 S.E.2d at
635 (citation omitted). If there is an exception to the exclusion,
the burden is upon the insured to prove the existence of an
exception to the exclusion which is applicable to restore
coverage. Allstate Ins. Co. v. Chatterton, 135 N.C. App. 92, 94,
518 S.E.2d 814, 816 (1999) (citing Home Indemnity Co. v. Hoechst
Celanese Corp., 128 N.C. App. 189, 494 S.E.2d 774 (1998)).
Further, in the absence of contrary evidence, it is presumed
that substances are ingested voluntarily. See Mehaffey v.
Insurance Co., 205 N.C. 701, 705, 172 S.E. 331, 333 (1934):
Assuming that there was evidence of poison in
his stomach after death, there is no evidence
that it got there through accidental means.
Indeed, the facts and circumstances disclose
without equivocation that any poison in the
stomach of deceased was the natural and
probable consequence of an ordinary act in
which he voluntarily engaged. Hence no
recovery [on the life insurance policy] can be
In the instant case, the dispositive issue is whether the
evidence raised a genuine issue of material fact regarding the
policy's exclusion for loss resulting from the voluntary use of
any drug, medicine, or sedative, or the exclusion's exception for
the use of such drugs as prescribed by a physician.
The uncontradicted evidence was that the immediate cause of
Duncan's death was methadone toxicity. Neither party disputes
that methadone is a drug, medicine, or sedative, or that Duncan
had a history of alcohol and substance abuse. Duncan's body was
found in his own living room, with no evidence of forced entry orfoul play. We conclude that defendants met their burden to show
that the exclusion bars plaintiff from recovering under the policy.
Plaintiff, however, urges that defendants must disprove her
claims with affirmative proof that Duncan took methadone
'voluntarily,' basically requiring defendants to prove Duncan was
not 'involuntarily' forced to take methadone. This reasoning was
expressly rejected in Roumillat v. Simplistic Enterprises, Inc.,
331 N.C. 57, 62, 63, 414 S.E.2d 339, 341, 342 (1992)(quoting
Roumillat v. Simplistic Enterprises, Inc., 103 N.C. App. 440, 442,
406 S.E.2d 10, 12 (1991)), overruled in part on other grounds by
Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998):
While conceding that there is no evidence in
the record that defendant knew or should have
known of the existence of the substance, the .
. . [court] below held that defendant is
entitled to summary judgment 'only if it meets
its burden of showing that it did not know,
and should not have known,' of the presence of
the substance[.] . . . [Defendant]
demonstrated that plaintiff could not produce
evidence to prove an essential element of her
case _ that defendant knew or should have
known of the existence of the substance[.] . .
. [D]efendant was not required to produce
evidence showing that it did not know or
should not have known of the substance[.]
We conclude that defendants presented evidence that coverage
was barred by the policy's exclusion, thus shifting the burden of
proof to plaintiff to demonstrate the existence of a genuine issue
of material fact regarding the exclusion's exception for drugs,
medicines, or sedatives used as prescribed by a physician.
At her deposition, plaintiff admitted she did not know
anything about Duncan's prescriptions, or whether he ever had aprescription for methadone. Plaintiff testified that in a phone
conversation Duncan once said he had fallen out of a tree and might
consult a physician, but that she did not know if Duncan actually
saw a doctor. She offered no testimony or evidence from anyone
with first-hand information about Duncan's use of methadone, and no
evidence that Duncan had a prescription for methadone. We conclude
that plaintiff's deposition testimony did not raise any genuine
issues of material fact.
We also conclude that the affidavit of Stephen W. Ringer, a
substance abuse counselor, which was offered by plaintiff, contains
no admissible evidence raising an issue of material fact. We first
note that Rule 56(e) provides in relevant part that:
[A]ffidavits shall be made on personal
knowledge, shall set forth such facts as would
be admissible in evidence, and shall show
affirmatively that the affiant is competent to
testify to the matters stated therein. Sworn
or certified copies of all papers . . .
referred to in an affidavit shall be
In his affidavit, Ringer stated that he was a licensed social
worker and counselor, and that he had counseled Duncan for alcohol
and substance abuse. He offered no other first-hand information
about Duncan or whether Duncan used methadone. The remainder of
the affidavit consists of generalized observations and opinions
about methadone use and abuse.
N.C.G.S. § 8C-1, Rule 701 (2003), states in relevant part that
testimony of a lay witness in the form of opinions or inferences
is limited to those opinions or inferences which are (a) rationally
based on the perception of the witness[.] In the instant case,Ringer's conclusions were based on: general information about
methadone; plaintiff's hearsay testimony that Duncan told her he
fell out of a tree and might see a doctor; and on two articles, one
a recent study by the American Medical Association, the other a
press release from the N.C. Department of Health and Human
Services. Because Ringer's opinions were neither based on his
personal knowledge, nor proffered as expert opinions, his affidavit
does not meet the requirement of N.C.G.S. § 1A-1, Rule 56(e) that
affidavits be made on personal knowledge, [and] shall set forth
such facts as would be admissible in evidence. We conclude that
Ringer's affidavit does not raise a genuine issue of material fact.
We conclude the record evidence shows that coverage was barred
by the policy's exclusion, and also that plaintiff was unable to
offer evidence raising an issue of fact regarding the exclusion or
its exception. This assignment of error is overruled.
 Plaintiff also argues that the court erred by awarding
costs to defendants. The lone assignment of error addressing the
court's award of costs asserts only that a higher Court may find
that the summary judgment was improperly entered and that no final
judgment had been entered. However, this Court has not found that
summary judgment was improperly entered. Nor will we consider
arguments not set out in plaintiff's assignments of error. N.C.R.
App. P. 10(a) ([The] scope of review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal.). This assignment of error is overruled. For the reasons discussed above, we conclude the court did not
err by entering summary judgment for defendants, and that its order
Judges HUNTER and McCULLOUGH concur.
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