Second, and more importantly, "Georgia law appears inconsistent with California law in that the former does not require `a specific incident that resulted in [the insured's] condition' before the disability will be deemed the result of an `accidental bodily injury.'" Id. (citing Alessandro v. Mass. Cas. Ins. Co., 232 Cal.App.2d 203, 208-09, 42 Cal.Rptr. 630 (1965), for the proposition that "`accident' is something outside of the usual course of events that happens suddenly and unexpectedly and without the design of the insured"). According to Dr. Bilezikjian, Gin's holding that CTS is not an "accidental bodily injury" is not controlling.
The superior court held that it did not because Gin's disability was attributable to a "repetitive stress injury." Citing Williams v. Hartford Accident Indemnity Co. (1984) 158 Cal.App.3d 229 [ 204 Cal.Rptr. 453] ( Williams) and Alessandro v. Massachusetts Cas. Ins. Co. (1965) 232 Cal.App.2d 203 [ 42 Cal.Rptr. 630] ( Alessandro), the superior court ruled that an "[i]njury resulting from a series of imperceptible events that finally culminate in a single tangible harm is not accidental." We agree with the superior court that under California case law, a disability that is the culmination of repetitive stresses caused by the insured's normal, everyday activities is not the result of an "accidental bodily injury" and therefore does not fall within the coverage of the policy.
Defendant next avers that California case law does not support a finding that an accident occurred. In support, Defendant cites Alessandro v. Massachusetts Casualty Ins. Co., 232 Cal. App. 2d 203 (1965) and Williams v. Hartford Accident & Indemnity Co., 158 Cal. App. 3d 229 (1984). (ECF No. 80-1 at 10-11.)
While not unwilling to accept the reasoning which resulted in the summary judgment in its favor, respondent urged below and reiterates here that the conclusion arrived at was required as well by those authorities which appear to support the proposition an "accident" does not occur in the absence of some intervening element of force or violence, in a context of a happening "not according to the usual course of things." (See Alessandro v. Massachusetts Cas. Ins. Co. (1965) 232 Cal.App.2d 203, 207 [ 42 Cal.Rptr. 630]; see also Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432 [ 74 Cal.Rptr. 895, 450 P.2d 271]; Brooks v. Metropolitan Life Ins. Co. (1945) 27 Cal.2d 305 [ 163 P.2d 689]; Arata v. California-Western States Life Ins. Co. (1975) 50 Cal.App.3d 821 [ 123 Cal.Rptr. 631]; Shafer v. American Casualty Co. (1966) 245 Cal.App.2d 1 [ 53 Cal.Rptr. 446; Johnson v. Aetna Life Ins. Co. (1963) 221 Cal.App.2d 247 [ 34 Cal.Rptr. 484]; Wharton v. Prudential Life Ins. Co. (1954) 122 Cal.App.2d 857 [ 265 P.2d 956].) No such intervention being present here, it is said, no "accident" occurred.
In Alessandro, the plaintiff was engaged in repairing a refrigerator when the pain occurred. Alessandro v. Massachusetts Casualty Ins. Co., 232 Cal.App.2d 203, 206 (1965). He was not lifting anything at the time, but rather he was bent forward in an awkward position.
30 Cal.App.4th at 824, 35 Cal.Rptr.2d 897. For this reason, U.S. Life's reliance on Williams v. Hartford Accident Indemnity Co., 158 Cal.App.3d 229, 204 Cal.Rptr. 453 (1984), and Alessandro v. Massachusetts Casualty Ins. Co., 232 Cal.App.2d 203, 42 Cal.Rptr. 630 (1965), where the California courts applied an "accidental means" analysis, is misplaced. See Williams, 158 Cal.App.3d at 235, 204 Cal.Rptr. 453 ("that activity, except for its result, was not of such a nature as properly to be characterized an `accident'"); Alessandro, 232 Cal.App.2d at 209, 42 Cal.Rptr. 630 ("In the instant case there is no evidence of falling, slipping, overexertion, or of any external force striking the body of the appellant.").
In fact, California courts have been unable to produce a clear definition of "accident." Geddes Smith, Inc. v. St. Paul-Mercury Indem. Co., 51 Cal.2d 558, 563-64, 334 P.2d 881 (1959) ("No all-inclusive definition of the word `accident' can be given."); Alessandro v. Massacusetts Casualty Insur. Co., 232 Cal.App.2d 203, 207-209 (1965) (recognizing the various definitions of "accident" that have been used in California law). Nonetheless, a review of the case law on the subject illustrates that California courts have been unwilling to find that an injury or death was "accidental" unless it was in some manner caused by an event or occurrence unforeseen and external to the insured.
(2) Turning first to the initial findings that plaintiff sustained an accidental bodily injury on January 4, 1966, which resulted in total disability within 30 days and which required the care and treatment of a physician, it should be noted at the outset that the question of whether disability is a result of sickness or injury ordinarily presents a question of fact. ( Allessandro v. Massachusetts Cas. Ins. Co., 232 Cal.App.2d 203, 210 [ 42 Cal.Rptr. 630].) (1b) Plaintiff testified that he was injured on that date.
According to California case law "accidental bodily injury" requires a sudden event causing an identifiable injury. Gin v. Pennsylvania Life Ins. Co., 134 Cal. App. 4th 939, 944, 36 Cal. Rptr. 3d 571, 575 (2005); Alessandro v. Massachusetts Casualty Ins. Co., 232 Cal. App. 2d 203, 208, 42 Cal. Rptr. 630, 633 (1965). There is no convincing evidence the California Supreme Court would not follow Gin. Chalk v. T-Mobile U.S.A., Inc., 560 F.3d 1087, 1092 (9th Cir. 2009).
Id. at 455. Similarly, in Alessandro v. Massachusetts Casualty Insurance Co., 232 Cal.App.2d 203, 42 Cal.Rptr. 630 (1965), the court rejected a refrigerator repairman's claim for accidental disability benefits for back problems that developed over the course of several years and culminated in a herniated disc during a routine repair job. The court explained: "He was not doing any lifting at the time, nor was he struck on the back in any way, nor did he experience any external force on any part of his body." Id. at 632.