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I like insurance law for a lot of reasons. It has profound economic, social and linguistic issues, as well as the starkest depictions of human and organizational greed. It also has THE BEST cases of any of the courses I teach. In part, I think this is because the difficult language of insurance policies becomes this bizarre filter on the social and political events of the day. I have a new entry on my list of favorite insurance cases: Beley v. Pennsylvania Mutual Life Ins. Co., 95 A.2d 202 (Penn. 1953). The case involved a $1,000 life insurance policy that, among other things, provided that “in the event that the Insured engages in military service in time of war, the liability of the Company shall be limited to the return of the premiums paid hereunder ….”  Six years after having procured this policyand having named his mother as beneficiary, the insured, Andrew Beley, died in active combat in Korea. So, the question as it ended up in the Pennsylvania Supreme Court was whether the Korean War was a war. A majority of the court ruled it was NOT. While this might be startling in and of itself given the million plus combatants who died in that multi-year not-war that has somehow been mislabeled in all the history books, what is equally stunning is the court’s rhetoric in disposing of the issue. 

How often does one see phrases this excoriating or this forceful in a judicial opinion? Here are three quotes from the dissent of Justice Chidsey.

“How is it humanly possible to say that the Korean War is not war?” 

“With due regard for my colleagues who differ with me, a holding that under the provisions of this policy the Korean War is not War — in the face of 128,000 American casualties — is so unrealistic and legalistic as to be utterly unjustifiable.” 

“Equally important, how is it possible to ignore or distort those clear, unambiguous words ‘accidental death’? It is instantaneously offensive to our knowledge, our experience and all our senses to say that this was an accidental death.” 

But Justice Chidsey’s deserving excoriation of the majority opinion was an exercise in rhetorical restraint compared to Justice Michael Angelo Musmanno‘s concurrence. There the former Admiral, presiding judge at some of the Nuremberg Trials and witness in Jerusalem against Nazi Adolf Eichmann launches into a multi-page paean to the United Nations intervention– nay, Holy Crusade —  in Korea against the evil Soviet Union as well as a presagement of the Domino Theory of foreign relations. While the relevance of his comments to poor Mrs. Beley’s insurance claim was hardly apparent, the passion with which they were uttered is unmistakeable and seldom matched in judicial opinions. Here are a few excerpts. And, trust me, for everyone listed here, there are two others almost as forceful.

“It [war] may have a locale not ordinarily associated with its gunpowder connotation, as, for instance, Milton speaks of ‘impious war in heaven,’ and in Psalms (lv. 21) we find: ‘The words of his mouth were smoother than butter but war was in his heart.'” (emphasis in original)

“For five thousand years of recorded history the earth has run red with the blood of war. The people of the various nations convulsed by these wars were powerless to resist the orders of kings, queens, kaisers, sultans, emperors, pashas and other absolutists who ordered them into battle in order to achieve land, loot, power or glory or even to satisfy sadistic whim or caprice entirely foreign to the welfare of those who did the fighting.” (note superb use of meter)

“Following the termination of each war the monarchs or chieftains returned to their respective thrones or tribal mansions, leaving the dead to bury their dead and the maimed and crippled to manage their misery as best as they could. No impartial attempt was ever made, by any responsible body, to determine who was right and who was wrong, because both sides in so catastrophic a voluntary enterprise could not have been in the right.” (cf. Jesus Christ, “Let the dead bury their dead.”, Luke 11:60). 

“Humanity had been crucified between the thieves of Arrogance and Greed, and yet there was no adjudication anywhere as to who was guilty for driving the nails.” (theological metaphors continue)

“From time to time mankind pleaded for a cessation of this licentious extermination. Societies of brothers were formed pledged against armed conflict, religious bodies held aloft the holy symbols of peace, but these societies and organizations were scattered and trampled under the galloping hooves of Conquest and Domination when tyrants drew the sword to carve for themselves greater territories and greater power.”

“In the later part of 1950 Andrew Beley sailed from the shores of American under that [the UN] banner. He wore a soldier’s uniform, he bore a soldier’s arms, he was skilled in the art and science or war but his mission was Peace. Never was a sword drawn, a canon fired or a bullet discharged in a worthier cause than that to which Andrew  Beley dedicated himself as he neared the bleak and gnarled land of Korea. And never did one offer a holier tribute to that cause than did Andrew Beley when on March 7, 1951, he gave his life for peace and the preservation of the liberties which every American understands in the word Peace.”

“Americans generally believed in 1945 that the blossomtime of Hope had arrived, and that the Four Horseman of the Apocalypse would never again gallop their martial steeds across the bleeding face of the earth.” (more theological metaphors)

The other remarkable aspect of the case is, in some sense, the skill of the justices in making their points. The opinions evidence a stunning amount of research on issues of history and international law. I doubt the Pennsylvania Supreme Court contained many of the materials cited in the case. Bill Gates, Tim Berners-Lee, and other progenitors of the electronic research revolution had yet even to be born. And, bizarre as at least certain aspects of the Musmanno concurrence may appear to modern eyes, it, and to only a somewhat lesser extent the other opinions are written with a meter and verve seldom seen outside the works of Benjamin Cardozo or, in his own way, Richard Posner. To have done this without the opportunity for continual revisions afforded by word processors induces the same sense of grotesque inferiority as a reading of Shakespeare, Austen or Nabokov.

So, why should we care about this 55 year old opinion? It exemplifies the phenomenon of insurance law turning into crucible for debate over the cares, neuroses, conceptions and misconceptions of public good that tend to prevail at any point in time. At that time, poor Andrew Beley was unlikely to have alternative ways of providing for his family’s support in the event of his premature death in combat. The SGLI program that since 1965 has incentivized the recruitment of soldiers, even children soldiers, by offering highly subsidized life insurance did not exist in the Korean conflict. Moreover, it is possible that the major reason for life insurer’s exclusion of military death — adverse selection — was not actually present in the case given the significant possibility that Beley had purchased the policy at the age of 21 or 22 when his future military service was not yet contemplated. Moreover, insureds who want to take advantage of private information about their life trajectories usually buy policies larger than $1,000, not a huge sum of money even in 1945. And here we had an insurer “chintzing” over a $1,000 to help a family when the country needed, it was perceived, to help servicemen in a life-or-death struggle against communist aggression in Korea. 

Perhaps from today’s perspective, we can view Beley with mixtures of awe, puzzlement or even smug amusement. The rhetoric does seem way, way over the top. And yet, may we not be writing, right now, opinions, that will be similarly regarded 55 years from now. One wonders, for example, what will be made by the law professors of 2063 when they study judicial opinions that take seriously the issue of whether something is a  “flood” when land areas ordinarily dry are submerged by storm surge. Or, perhaps, the readers of this blog can submit other candidates from today that our grandchildren will read with equivalent amazement.

Footnote. If anyone wants an example of an absurd argument made by an insurer in liigation, consider this one. The insurer argued that because Congress had never technically declared World War II over as of March, 1951, the battle against the Axis Powers was, within the meaning of the insurance contract, still going on at the time of Andrew Beley’s death and barred his claim. An interesting reconceptualization of history that did not impress even the dissent.

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3 Comments

  1. Now that makes sense. I had assumed that Justice Musmanno was a career judge who sat out the war in court. I was amazed at the fervent hope Justice Musmanno had for the United Nations and his immense faith in its promise for a peaceful future. May be I am colored by 20/20 hindsight, but at first read it seemed like the height of naivete. Now I see where he is coming from – Admiral, Judge at Nuremberg, witness at Jerusalem against Eichmann – only someone who had seen the horrors of war (and a nasty one at that) so upclose could have so fervently hoped and believed in the promise of the United Nations – it probably seemed at the time as the one bulwark against the insanity of another global war.

  2. I have issue with the argument by insurers in Beley that WWII had never ended. There is overwhelming documentation indicating that Germany surrendered unconditionally on May 7, 1945, about a week after its Fuhrer blew his brains out. Japan signed an official surrender on September 2, 1945 on the U.S.S. Missouri, to minimal fanfare.

  3. I find this a further example of how, too often, the legal process focus upon how we define the meaning of words and hide behind it. To me this is an example of intellectual dishonesty. What is war?
    Furthermore,with regard to your commentary regarding adverse selection. True that he purchased the policy before his military service was “contemplated”, however, I would have assumed he was knowledgable of the “war” exclusion, but UNLIKELY that he would have considered that the issue of war would become a “war of words”.


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