either directly or indirectly, out of the sinking of the Lusitania, and those
will be discussed in separate parts. The case to be discussed here, however,
was not only a life insurance case, but it arose out of another enemy attack, namely, the Japanese attack on
Pearl Harbor, December 7, 1941, so the relationships between risks of war, the
nature of war, and insurance were again mixed together.
It must be remembered that Hawaii at the times relevant here was still a
territory of the United States but not yet a state. Thus, the decision was one of the Supreme
Court of the Territory of Hawai’i.
sued Sun Life because it denied double-indemnity coverage for her husband’s
death. Tuck Lee Pang was an employee of
the Honolulu Fire Department and was killed putting out a fire at Hickam Field.
death by external, violent and accidental means” falling within the meaning of
the double-indemnity provisions of his Sun Life insurance policy. The sole question was whether his death was
or was not a death “resulting from war or any act incident thereto” and so be
excluded from that provision.
apparently $1000.00 but refused to pay the amount of the doubling, another $1000.00.
took exception to the court’s decision and judgment, and the case went to the
Japanese attack, declaration of war by America the following day, the language
of the declaration, and so forth. Hence, as the Court puts it, “the real
question before the court is, ‘were we [i.e., the United States and its territories] at war with Japan on December 17,
1941?’” (There was another point of error—another “exception,” to use the lingo
of the jurisdiction at the time—but the court did not rule on it.
abstract. Here is a crucial section:
existence of a state of war between two countries. For the purpose of
determining when these consequences are produced, it is important to ascertain
the date of the beginning and the date of the termination of a war, and it is
desirable that these dates be fixed with exactness. Different dates of
beginning and termination of a war may be set for different purposes. . . .
are differences recognized, not always consistently, between a “state of war”
and an “act of war.” Most significantly, the latter does not always include the
former, or even cause it. And it must also be kept in mind that an announcement
by a government that it was going to do something that would be an act of war
is not itself such an act.
clear to the court that a state of war did not exist between the United States
and Japan on December 7th, even after the attack began.
distinguish amongst various types of acts of war. Some of them start wars; some of them, as it
were, invite a war, some of them provoke the start of a war; some of them are
in a different war; and some of them don’t have any consequence at all. It was
clear, said the court, that the United States did not regard itself as at war
with Japan until Congress declared war the next day.
differentiate Pang from Vanderbilt. In that case, a war was
going on between Great Britain and Germany; the Lusitania was right in the way
of it, even if it was not in the thick of it; and Alfred Vanderbilt was on the
ship. The historical context in Pang
was quite different. There was no war going on between Japan and the U.S. though there were other wars going on that included Japan. But Pearl Harbor and
Hickam Field were not in the thick of the action or right in its way. Consequently, Vanderbilt is not a precedent for
anything in Pang. (The cite for the earlier case is Vanderbilt v. Travelers’ Ins. Co., 184
N.Y.S. 54 (1920), aff’d 139 N.E. 715 (1923)
to settle this case. Maybe that’s
because there were a good number of other cases like it, and the insurer didn’t
want to take “slippery slope” type chances.
Maybe it’s because in that place and that time, there was public
hostility toward people with names like “Pang,” whether there were Japanese,
Chinese or something else.
J.D., C.P.C.U. . . .
344-9466 – Fax
The apostrophe is right there in the word. I’m not making it up.
The issue was whether the trial court erred in refusing entry into evidence the
fact that Sun Life changed the double indemnity provision shortly after
December 7th. It inserted immediately after the word “war” the phrase “whether
declared or not.” For what it’s worth, I am inclined to reject the views of
both the lower and the upper court. The addition of the new phrase is evidence
that Sun Life though the existing formulation was at best unclear, vague,
and/or ambiguous. If so, then a coverage issue should be resolved in favor of
the insured and therefore the plaintiff. I wonder if in today’s world that
might not constitute empirical evidence in support of an insurer bad faith
Originally posted on 05/08/2015 @ 7:56 pm