미국보험법에 있어 신체훼손 (Bodily Injury in American Insurance Law)

서지정보

· 발행기관 : 한국금융법학회
· 수록지 정보 : 금융법연구 / 10권 / 1호 / 417 ~ 464페이지
· 저자명 : 노일석

초록

Accident and health insurance means insurance against death or personal injury by accident or by an specified kind or kinds of accident and insurance against sickness, ailment or bodily injury. Accident insurance helps insured and insured's family from financial hardships if insured dies or suffers a serious injury in an accident.
In general insurer agrees, subject to the provisions of insurance policy,to immediately pay to the beneficiary or beneficiaries, in addition to the other benefits provided by the policy, the amount of additional accidental death benefit specified in the policy specifications, if due proof is furnished to the insure at its home office that the Insured, while this policy is in full force and effect, has suffered the loss of life as direct result of bodily injury, independent of all other causes, effected solely through external, violent and accidental means, as evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy), and that the date of death occurred within ninety days after such injury.
The payment of benefits under policy of accident insurance or the accident provisions of a life policy is typically conditioned upon death or injury resulting from "accident" or "accidental means". To this may be added the further requirement that the misfortune is caused "externally" and "violently".
Where the death or injury is occasioned by some force other than a physical impact of a type and magnitude likely to produce the ensuing result, there arises an question these provisions of the policy have been satisfied in such a manner as will permit recovery. There are relatively few cases where the dispute was wether a death or injury resulting from an emotional disturbance, such as shock,fright, or other "psychic trauma," is within purview of such policies despite the absence of causative physical contact between the body of the insured and the force alleged to have produced the death or injury.
Some policies expressly define bodily injury to include emotional distress. Most do not. When policies do not some courts have held that a claim for emotional stress still constitutes a claim for bodily injury, but most have correctly held to the contrary, with one proviso. The proviso is that even in those states that have held that emotional distress does not constitute bodily injury, some courts have correctly ruled that if the plaintiff's emotional distress has resulted in physical manifestations, a bodily injury is involved.
Accident insurance policies frequently qualify their coverage by requiring that the accident which triggers or increased indemnity be evidenced in a certain manner, such as by "external visible sign," "visible contusion or wound,""physical contusion or wound" or similar requirements. Under a policy requiring bodily injury effected solely through external, violent, and accidental means as evidenced by a visible contusion or wound on the exterior of the body, it is not required that death be the result of the wounds found on the exterior of the body. In determining what is an visible mark of injury on a body, the term "visible" is used in the broad sense of perceptible, discernable, clear, distinct,and evident. Such a provision requires some manifestation, abnormal in its nature and affecting the physical person, the existence of which may be ascertained by observation or examination. Visible injuries or marks need not be bruises, contusions, lacerations, or broken limbs, but may be internal injuries the existence of which may be outwardly indicated or perceived through observation or examination of the insured.
Many jurisdictions adhere to the view that the term "accidental means"is distinct from, and requires a different causal analysis, than the terms "accident," "accidental injury," "accidental death," "accidental result," and the like.
As this distinction narrows coverage considerably, it is not currently favored by consumers or by growing number of state insurance departments.
Basically, the distinction is grounded on the idea that "means" is synonymous with "cause," that the difference between "accidental means" and the other aforementioned terms is the difference between cause and effect ; that insurance against death or injury by "accidental means" is not insurance against death or injury by accident or as an accident result; and that hence death or injury is not incurred by "accidental means" merely because the effect or result is accidental in the sense that it is unforeseen, undesigned, unusual, and unexpected. The distinction between loss due to "accidental means" and loss due to "accident"was, at one time, generally accepted by most courts. In recent years, however,an increasing number of jurisdictions have rejected the distinction in favor of treating the terms as legally synonymous, at least in the absence of comprehensible and different definition of the relevant terms in the policy.
Under this view, the term "accidental" is equally descriptive of means which produce effects which are not their natural and probable consequences, as it is of means which are wholly unexpected.

영어초록

Accident and health insurance means insurance against death or personal injury by accident or by an specified kind or kinds of accident and insurance against sickness, ailment or bodily injury. Accident insurance helps insured and insured's family from financial hardships if insured dies or suffers a serious injury in an accident.
In general insurer agrees, subject to the provisions of insurance policy,to immediately pay to the beneficiary or beneficiaries, in addition to the other benefits provided by the policy, the amount of additional accidental death benefit specified in the policy specifications, if due proof is furnished to the insure at its home office that the Insured, while this policy is in full force and effect, has suffered the loss of life as direct result of bodily injury, independent of all other causes, effected solely through external, violent and accidental means, as evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy), and that the date of death occurred within ninety days after such injury.
The payment of benefits under policy of accident insurance or the accident provisions of a life policy is typically conditioned upon death or injury resulting from "accident" or "accidental means". To this may be added the further requirement that the misfortune is caused "externally" and "violently".
Where the death or injury is occasioned by some force other than a physical impact of a type and magnitude likely to produce the ensuing result, there arises an question these provisions of the policy have been satisfied in such a manner as will permit recovery. There are relatively few cases where the dispute was wether a death or injury resulting from an emotional disturbance, such as shock,fright, or other "psychic trauma," is within purview of such policies despite the absence of causative physical contact between the body of the insured and the force alleged to have produced the death or injury.
Some policies expressly define bodily injury to include emotional distress. Most do not. When policies do not some courts have held that a claim for emotional stress still constitutes a claim for bodily injury, but most have correctly held to the contrary, with one proviso. The proviso is that even in those states that have held that emotional distress does not constitute bodily injury, some courts have correctly ruled that if the plaintiff's emotional distress has resulted in physical manifestations, a bodily injury is involved.
Accident insurance policies frequently qualify their coverage by requiring that the accident which triggers or increased indemnity be evidenced in a certain manner, such as by "external visible sign," "visible contusion or wound,""physical contusion or wound" or similar requirements. Under a policy requiring bodily injury effected solely through external, violent, and accidental means as evidenced by a visible contusion or wound on the exterior of the body, it is not required that death be the result of the wounds found on the exterior of the body. In determining what is an visible mark of injury on a body, the term "visible" is used in the broad sense of perceptible, discernable, clear, distinct,and evident. Such a provision requires some manifestation, abnormal in its nature and affecting the physical person, the existence of which may be ascertained by observation or examination. Visible injuries or marks need not be bruises, contusions, lacerations, or broken limbs, but may be internal injuries the existence of which may be outwardly indicated or perceived through observation or examination of the insured.
Many jurisdictions adhere to the view that the term "accidental means"is distinct from, and requires a different causal analysis, than the terms "accident," "accidental injury," "accidental death," "accidental result," and the like.
As this distinction narrows coverage considerably, it is not currently favored by consumers or by growing number of state insurance departments.
Basically, the distinction is grounded on the idea that "means" is synonymous with "cause," that the difference between "accidental means" and the other aforementioned terms is the difference between cause and effect ; that insurance against death or injury by "accidental means" is not insurance against death or injury by accident or as an accident result; and that hence death or injury is not incurred by "accidental means" merely because the effect or result is accidental in the sense that it is unforeseen, undesigned, unusual, and unexpected. The distinction between loss due to "accidental means" and loss due to "accident"was, at one time, generally accepted by most courts. In recent years, however,an increasing number of jurisdictions have rejected the distinction in favor of treating the terms as legally synonymous, at least in the absence of comprehensible and different definition of the relevant terms in the policy.
Under this view, the term "accidental" is equally descriptive of means which produce effects which are not their natural and probable consequences, as it is of means which are wholly unexpected.

참고자료

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