Luanne Kenna Chale v. Allstate Life Insurance Company

In response to a query about why he wanted to climb the
world's tallest mountain, British explorer George Mallory
responded, "Because it is there."1 As Mallory and others have
learned, the lure and mystique of mountain climbing are not
without risk of injury, including death. The controversy in this
case is whether a climbing death on Mt. Kilimanjaro falls
within the meaning of the terms "accidental injury" and "disease"
as used in a life insurance policy. Although this inquiry
is seemingly straightforward, it turns out that, in the context
of insurance law, unraveling the meaning of these simple
words is no easy task.

Luanne Chale brought this breach of contract suit against
Allstate Life Insurance Company ("Allstate") after it declined
to pay her a $100,000 accidental death benefit under her husband's
life insurance policy. Because her husband's death
from high altitude edema falls within the definition of "accidental
injury" and does not fit with the "disease" exclusion of
the policy, Mrs. Chale was entitled to summary judgment.
Accordingly, we reverse the district court's grant of summary
judgment in favor of Allstate.

BACKGROUND

The dispute between Mrs. Chale and Allstate arises from
the tragic mountain climbing death of her husband, Bernard
Chale ("Chale"). Each year, thousands of adventurers like
Chale ascend Mt. Kilimanjaro, hoping to reach the 19,430 ft.
snow-capped summit of Africa's tallest mountain.
Although there are many risks in climbing, ranging from
avalanches to crevasses, high altitude itself presents a risk. At
elevations above 8,000 ft., decreased atmospheric pressure
reduces the concentration of oxygen in the air enough to make
it noticeably difficult to breathe. Medicine for Mountaineering
& Other Wilderness Activities 221-22 (James A. Wilkerson,
M.D., ed., 5th ed. 2001). At these heights, experienced climbers
allow themselves time to acclimatize because altitude

1John Bartlett, Familiar Quotations 876 (14th ed. 1968).

18027 CHALE v. ALLSTATE LIFE INSURANCE CO.

sickness can set in when a person ascends faster than the body
can adjust. Mountaineering: The Freedom of the Hills 396
(Don Graydon, ed., 5th ed. 1992). Rapid ascent upsets the
body's chemistry, and can result in headaches, nausea,
fatigue, dizziness, loss of appetite, and vomiting. Medicine for
Mountaineering at 230-32. As the syndrome progresses in
severity, a climber may develop high altitude pulmonary
edema (HAPE), characterized by fluid in the lungs, and high
altitude cerebral edema (HACE), characterized by swelling of
the brain. Id. at 232-33.

Victims of HAPE often experience extreme fatigue, breathlessness,
coughing, rattling breaths, chest tightness, congestion,
and may turn blue. Id. at 233-34. HACE causes
confusion and lethargy. Id. at 232. HAPE and HACE are an
exceptionally dangerous duo when they attack together. Id. at
233. Unless a decompression chamber or pressurized oxygen
is available, descent to lower altitudes is the only way to treat
these conditions. Norbert F. Voelkel, High-Altitude Pulmonary
Edema, 346 The New England Journal of Medicine 1606
(May 23, 2002). Recovery following descent is usually rapid
and complete. Medicine for Mountaineering at 233, 235. Left
untreated, HAPE and HACE can cause death in a matter of
hours. Death from HAPE and HACE is relatively rare and not
a common or expected outcome of a high altitude adventure.
See id. at 234 (describing the risk of developing HAPE after
rapid ascent to 12,000 ft. as 0.5%).

Despite these risks, many climbers find the allure of the
mountains irresistible. Mt. Kilimanjaro, whose summit straddles
the border of Tanzania and Kenya, is an especially popular
destination because its ascent requires no technical skills.
See, e.g., Harald Lange, Kilimanjaro: The White Roof of
Africa 157-58 (1985). Even novice peak baggers can hire professional
outfitters to guide them along the multi-day trek, as
Chale did in December 2000.

Chale began his climb on December 23, 2000, at 4,600 ft.
Over the next four days, he and his climbing party ascended

18028 CHALE v. ALLSTATE LIFE INSURANCE CO.

to their final camp at 17,000 ft., where the air is about half as
dense as it is at sea level. See Michael Ward, Mountain Medicine:
A Clinical Study of Cold and High Altitude, 4 (1995).
Just after midnight on December 27, the party set out for the
summit, splitting up into a faster and slower group. At 11:30
AM, on its way down, the faster group passed Chale, who was
headed for the top. Up to that point, Chale had experienced
some fatigue and breathing problems, but no other symptoms
of HAPE or HACE. A few hours later, Chale died, after having
reached the summit. A post-mortem report revealed that
Chale had been afflicted with "severe edema and congestion
of the lungs and brain" - in other words, HAPE and HACE.
Before his death, Chale held a life insurance policy issued
by Allstate. Under the policy, his wife was to receive
$100,000 upon his death and an additional $100,000 if his
death was "solely from accidental injury" and not due to "disease
[or] infirmity of the body or mind." Neither "accidental"
nor "disease [or] infirmity" were defined in the insurance policy.
After Chale's death, his wife notified Allstate and
demanded payment. Allstate paid her $100,000 in straight
death benefits under the policy but not the additional
$100,000 accidental death benefit. Mrs. Chale then filed suit
in Oregon state court, and Allstate successfully removed to
federal court. The parties filed cross-motions for summary
judgment. The district court granted Allstate's motion, denied
Mrs. Chale's motion as moot, and entered a judgment of dismissal
with prejudice.

DISCUSSION

I. Applicable Law and Standard of Review

Oregon law governs this inquiry; if no Oregon Supreme
Court decision is directly on point, our task is to predict how
the court would decide the case. S.D. Meyers, Inc. v. City and
18029 CHALE v. ALLSTATE LIFE INSURANCE CO.
County of San Francisco, 253 F.3d 461, 473 (9th Cir. 2001).
We invoke the traditional standard of review on summary
judgment: the district court's dismissal on summary judgment
is reviewed de novo and the evidence must be considered in
the light most favorable to the non-moving party. See Padfield
v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir. 2002).

II. The "Accidental Injury" Provision

We first consider the parties' dispute over the interpretation
of the term "accidental injury" in the life insurance policy. As
with any contract, our goal is to "ascertain the intention of the
parties." Hoffman Constr. Co. v. Fred S. James & Co., 836
P.2d 703, 706 (Or. 1992) (quoting Totten v. New York Life
Ins. Co., 696 P.2d 1082, 1086 (Or. 1985)).

[1] Initially, we look to the policy as a whole. See id. As
the drafter of the contract, Allstate could have explicitly
defined "accidental" or "accident" any way it wished. Botts v.
Hartford Accident & Indem. Co., 585 P.2d 657, 660 (Or.
1978). Because it did not, and because the rest of the contract
sheds no additional light on the parties' intent, Allstate "must
accept the common understanding of the term by the ordinary
member of the purchasing public." Id.; see also Pope v. Benefit
Trust Life Ins. Co., 494 P.2d 420, 421 (Or. 1972); Finley
v. Prudential Life & Cas. Ins. Co., 388 P.2d 21, 26 (Or.
1963).

The next step, Oregon law instructs, is to seek clarification
from the plain meaning of the term. See Hoffman Constr. Co.,
836 P.2d at 706. This inquiry is equally unavailing, as we do
not presume to discover a workable definition of "accident"
where the Oregon Supreme Court found none. See St. Paul
Fire & Marine Ins. Co., Inc. v. McCormick & Baxter Creosoting
Co., 923 P.2d 1200, 1212 (Or. 1996) (finding the dictionary
definition of "accident" broad enough to encompass the
definitions offered by both parties).

18030 CHALE v. ALLSTATE LIFE INSURANCE CO.

The lack of a commonly accepted, singular meaning of "accident"
has given Oregon courts a number of occasions to
grapple with the task before us today. Carving out a universally
applicable definition is no mean feat. Cf. Botts, 585 P.2d
at 660 ("There are probably not many words which have
caused courts as much trouble as ‘accident' and ‘accidental.'
"). Notably, the Oregon Supreme Court has acknowledged
the futility of such an undertaking. The court's
approach in Botts treats the legal interpretation of "accident"
as malleable to the facts of a given case. Thus, "[i]n situations
in which ‘accident' or ‘accidental' are not defined in the policy,
it is for the court to decide the definition which is properly
applicable to the particular factual situation." Id. at 661.
Although Botts makes clear that ours is a moving target, we
are not entirely without guidance. It is well established that
the proper focus of the inquiry is the injurious result, not the
conduct leading to that result. See Fox v. Country Mut. Ins.
Co., 964 P.2d 997, 1006 (Or. 1998) (where the insured was
a voluntary passenger in a friend's car when the friend intentionally
drove it off a cliff in order to collect insurance
money, the court focused on the insured's state of mind with
respect to sustaining the injury (death), not his state of mind
with respect to placing himself in a position where he risked
the injury (getting in the car)); see also North Clackamas Sch.
Dist. v. Oregon Sch. Bds. Assn. Prop. & Cas. Trust, 991 P.2d
1089, 1092 (Or. Ct. App. 1999) (reaffirming that "the meaning
and determination of ‘accident' focuses not on conduct,
but on result"). Hence, we must focus on whether Chale's
contracting HAPE and HACE and his resulting death were
accidental. Whether his act of climbing Mt. Kilimanjaro was
intentional - which it certainly was - plays no part in this
inquiry.

[2] At the broadest level, an "accidental" event must contain
at least some kernel of chance or abnormality. See St.
Paul Fire & Marine Ins. Co., 923 P.2d at 1213 (defining "accident"
as an "incident or occurrence that happened by
18031 CHALE v. ALLSTATE LIFE INSURANCE CO.
chance" (quoting Finley, 388 P.2d at 26)). Under some circumstances,
the insured's state of mind is relevant to this
inquiry. If Chale's purpose was to bring about his death, or if
he "engaged in an act so certain to cause . . . [his death] that
the court will say that . . . [he] intended the harm," his widow
cannot recover the accidental death benefit. See Fox, 964 P.2d
at 1005.2

Intentional injury is, of course, antithetical to accidental
injury. In various contexts, Oregon cases have expressed this
concept in different ways, requiring accidents to be "unexpected
and unintended," Pope, 494 P.2d at 423 (internal quotation
marks omitted), to happen "without design and contrary
to intention and expectation," Finley, 388 P.2d at 26, or be
"unforeseen, unexpected, unintended or the like," Safeco Ins.
Co. v. House, 721 P.2d 862, 866 (Or. Ct. App. 1986). Most
of these definitions simply exclude from coverage as accidents
events that are "intentional" under the ordinary tort
meaning of intentional as purposeful or done with knowledge
of substantially certain outcome. However, the additional concept
of foreseeability appears to have created a stumbling
block for litigants.

[3] Foreseeability is but one factor that can help courts "effectuate
the reasonable expectations of the insured." Botts,
585 P.2d at 660. It is also a term loaded with vagaries. As the
Botts court pointed out, some unforeseeable injuries, such as
when an elderly person dies in her sleep of old age, are not
commonly considered accidental. Id. Yet it is equally true that
some perfectly foreseeable injuries are universally considered
accidental.

[4] Consider, for example, a mountaineer who falls into a
crevasse while traveling on a glacier. Climbers know that cre-
2Although Fox interprets a policy provision controlled by a state statute,
at minimum its definition sets a floor for denominating an event as accidental.
18032 CHALE v. ALLSTATE LIFE INSURANCE CO.
vasses are a danger associated with glaciers; yet when apparently
solid snow crumbles underfoot and causes the
mountaineer to fall to an icy death, no one would dispute, and
even Allstate concedes, that this perfectly foreseeable event
would be classified as an accident. Automobile travel provides
a far more mundane example. Every automobile passenger
is aware of the risk of a car accident, yet no one would
argue that a run-of-the mill collision is not an "accident." As
these examples illustrate, if the litmus test for foreseeability
turns on mere awareness of the possibility of risk, a legal rule
that excludes all foreseeable events from "accident" coverage
would yield absurd results.

[5] Thus, the district court erred by equating "accidental"
to "reasonably unforeseeable" where, in its view, an injury
"may be reasonably foreseeable even if it is not certain or
substantially certain that it will occur in every instance."
Chale v. Allstate Life Ins. Co., No. CV 01-1622-BR, slip op.
at 13 (D. Or. May 31, 2002). In premising its ruling on Mrs.
Chale's failure to "produce[ ] any evidence to establish a reasonable
person endeavoring to climb Mt. Kilimanjaro would
be unaware of" the risk of HAPE and HACE, id. at 12
(emphasis added), the district court turned Oregon law on its
head. Urging us to affirm this faulty reasoning, Allstate
argues that, in an analogous situation, someone who voluntarily
walks across a field during an electrical storm would not
have suffered an "accidental injury" if he were struck by
lightning because the risk was foreseeable. This illustration is
perhaps the most convincing evidence of the flaw in Allstate's
argument. Any interpretation of the insurance policy that
assumes that a reasonable insured person would not consider
such a scenario to be accidental strains credulity.
[6] At the very least, such an interpretation flouts the firmly
established rule that ambiguous terms are to be construed
against the insurance company. Hoffman Constr. Co., 836
P.2d at 706; I-L Logging Co. v. Mfrs. & Wholesalers Indem.
Exch., 275 P.2d 226, 232 (Or. 1954); see also North Clacka-

18033 CHALE v. ALLSTATE LIFE INSURANCE CO.

mas, 991 P.2d at 1091-92. Application of this rule is appropriate
because the use of "accidental" in Chale's policy was
reasonably susceptible to more than one meaning. See Botts,
585 P.2d at 661 (contemplating many different definitions of
"accident").

[7] Mrs. Chale argues that, as in Fox, the "accidental injury"
term in the policy should be construed to include Chale's
death because he had not "expected or intended to" contract
HAPE and HACE. We agree. Chale contracted an unusual
and extremely serious medical condition while engaging in
the activity of mountain climbing. Even if he was or should
have been aware of the risk of HAPE and HACE, his chances
of falling victim to these conditions were slim. Because Chale
was struck by altitude-induced edema much in the way someone
might be struck by lightning, his death falls within the
definition of "accidental injury" contemplated by any reasonable
purchaser of Allstate's life insurance policy.
In reaching this conclusion, we are persuaded by the reasoning
in Paulissen v. United States Life Ins. Co., 205 F.
Supp. 2d 1120 (C.D. Cal. 2002), where, under California law,
the insured's death by HAPE was "accidental" because
"[d]eath from HAPE cannot be said to be a common or
expected result of a trek at high altitudes." Id. at 1128. Allstate
urges us to ignore Paulissen due to claimed irreconcilable
differences between Oregon and California law.

Specifically, Allstate complains that California recognizes a
difference between policy language that provides coverage for
"accidental death" and language that provides coverage for
death resulting from "accidental means," whereas Oregon
long ago rejected this distinction. Compare Paulissen, 205 F.
Supp. 2d at 1127-28 (applying California law's distinction
"between policies that cover ‘accidental death' and those that
cover death by ‘accidental means' "), with Botts, 585 P.2d at
659-60 ("lay[ing] the distinction to rest" in Oregon), and
Pope, 494 P.2d at 421-22 & n.1 (criticizing "[t]he distinction
between injury by ‘accidental means' and ‘accidental results

18034 CHALE v. ALLSTATE LIFE INSURANCE CO.

from intended means' " as "logomachy" incomprehensible to
the average insurance policy purchaser).

Allstate's protest rings hollow. When the Oregon Supreme
Court abolished the remaining "vitality of the means-result
distinction" in Botts, its purpose was to broaden coverage for
insurance policy holders bound by "accidental means"
language - not, as Allstate would have it, to constrict "accidental
injury" coverage. See Botts, 585 P.2d at 659-660
(expressing its "doubts as to whether the ordinary purchaser
would expect the concept of ‘accident' to have a different
meaning depending upon whether the policy purports to
require accidental means or accidental results" but explaining
that its elimination of the narrow "accidental means" construction
was not strictly necessary because the policy at issue
did not contain an "accidental means" requirement). Nonetheless,
Allstate argues that although the means-result distinction
no longer exists, we must still "determine whether there was
an accident." It insists that we look no further than Chale's
intentional choice to reach high altitudes, which was undisputedly
not accidental. In other words, Allstate's test for
"whether there was an accident" is to identify whether the
"means" of the injury - Chale's choice to climb Mt.
Kilimanjaro - was accidental.

Accepting Allstate's position would not only require Oregon
law to re-embrace the abolished means-result distinction,
but would also require us to read "accidental means" in place
of "accidental injury" into the policy. Because the proper
focus is on the injury that befell Chale, Paulissen's rationale
is particularly apposite. There, Paulissen, the insured, died
while trekking in Nepal at altitudes similar to the ones experienced
by Chale. Like Paulissen, Chale's "death was caused by
accident because it was an unusual or unanticipated result
flowing from a commonplace cause." Paulissen, 205 F. Supp.
2d at 1128.

18035 CHALE v. ALLSTATE LIFE INSURANCE CO.

III. The "Disease" Exclusion

[8] We next consider whether the policy's "disease" exclusion
is applicable. Because Chale's death was "accidental,"
Mrs. Chale is entitled to the $100,000 accidental death benefit
unless Allstate can surmount its burden to show that the death
was caused by "disease" or "infirmity." See Stanford v. American
Guar. Life Ins. Co., 571 P.2d 909, 911 (Or. 1977) ("The
insurer has the burden of proof that the loss is excluded.").
[9] We note, as an initial matter, that "disease" and "infirmity"
are properly treated as synonymous. Hutchinson v.
Aetna Life Ins. Co., 189 P.2d 586, 590 (Or. 1948). Although
the definitions of these terms are exceptionally broad in common
usage, see Paulissen, 205 F. Supp. 2d at 1129-30
(remarking that they "would include the slightest and most
temporary ailment"), they must be "narrowly construed in the
context of insurance policies." Id. at 1130; see also Todd v.
Occidental Life Ins. Co., 303 P.2d 492, 495 (Or. 1956) ("In
construing a contract of insurance, the courts will give as
favorable a construction for the benefit of the insured as is
cognizable in the words used to prevent forfeiture."). Under
Oregon law, we must limit our construction of the term "disease"
in Chale's policy "only to some ailment or disorder of
an established or settled character to which the insured is subject."
Hutchinson, 189 P.2d at 590; see also Todd, 303 P.2d
at 495.

[10] Allstate does not dispute that Chale did not have
HAPE or HACE before ascending to high altitudes, or that
rapid descent would have alleviated his symptoms. These
afflictions thus can hardly be described as any more "established"
or "settled" than, for example, hypothermia or suffocation.
See Paulissen, 205 F. Supp. 2d at 1130 (holding
deceased's HAPE "was not a disorder of a somewhat established
or settled character" but "a mere temporary disorder . . .
arising from sudden and unexpected derangement of the system"
(internal quotations and alterations omitted)). It is true

18036 CHALE v. ALLSTATE LIFE INSURANCE CO.

that someone who is freezing to death or drowning certainly
suffers from a physiological abnormality. But in neither case
could the affliction be considered so "established" or "settled"
as to amount to "disease." For both disorders, the onset is sudden
and the outcome either death or rapid rescue from the
brink of death - just like HAPE and HACE.

[11] Nor does Allstate suggest that Chale had any other
"established" or "settled" disorder that contributed to his
death. Instead, it rests its argument upon two faulty premises.
First, Allstate views as dispositive its medical expert's uncontested
use of the word "disease" to describe HAPE and
HACE. Unfortunately for Allstate, resolution of this issue
goes beyond medical semantics. Whether HAPE and HACE
are "diseases" or "infirmities" as contemplated by the insurance
policy is a question of law. See id., 205 F. Supp. 2d at
1127 n.8. Although testimony from medical experts can help
inform the legal decision maker about the nature of these
afflictions, it does not dictate the proper legal interpretation of
this policy term. See id. This is the province of courts rather
than doctors.

[12] Allstate's second argument reveals the weakness of its
position. It contends that because "there is no evidence of any
. . . accident," the "diseases" of HAPE and HACE directly
caused Chale's death. In other words, it ties its argument on
the "disease" issue to an outcome in its favor on the "accidental
injury" issue. But because Chale's death was "accidental,"
Allstate's effort to bootstrap is unavailing. The district court
should have granted summary judgment to Mrs. Chale on her
claim for recovery of accidental death benefits under the
insurance policy. Considering only the evidence before the
court at the time Mrs. Chale moved for summary judgment,
no genuine issue of material fact remains to be litigated.
Accordingly, we reverse the district court's grant of summary
judgment to Allstate and its denial of summary judgment to
Mrs. Chale.

18037 CHALE v. ALLSTATE LIFE INSURANCE CO.

IV. The Motion to Strike

In her reply declaration, Mrs. Chale included the following
statements: that Chale was a "fit individual" and "healthy and
fit"; that Chale never took mountaineering classes and was
not aware he could die as a result of altitude sickness; and that
other people survive climbs and exposure to altitudes "greater
than that at which Mr. Chale experienced edema."
The district court granted Allstate's motion to strike this
evidence based on Oregon Court Rule LR 56.1(e), which provides
that "the court has no independent duty to . . . consider
any part of the court record not otherwise referenced in the
separate concise statements of the parties." Because the
stricken material was not included in Mrs. Chale's Concise
Statements of the Facts, the district court did not abuse its discretion.
See Golden Gate Hotel Ass'n. v. City and County of
San Francisco, 18 F.3d 1482, 1485 (9th Cir. 1994). Exclusion
of these statements does not, however, change the outcome of
the case.
Chale's premature death from HAPE and HACE falls
squarely within the bounds of Allstate's Accidental Death
Benefit Rider. Thus, the judgment of the district court is
reversed and remanded for entry of judgment for Mrs. Chale
in accordance with this opinion.

REVERSED.