Aleksich v. Mutual Acc. Ass'n. , 118 Mont. 223 ( 1945 )

I think the policy covers loss of time occasioned by accidental death limited to 24 months. Section 4 of the standard provisions of the policy requires written notice of injury or of sickness within twenty days after the accident or ten days after the disability from sickness. It then contains this provision: "In event of accidental death immediate notice thereof must be given to the association." By paragraph 5, a part of which is quoted in the majority opinion, it should be noted that notice in a proper case is given by or in behalf of the beneficiary.

Paragraph 11 of the standard provisions reads as follows: "Indemnity for loss of life of the Insured is payable to the beneficiary if surviving the Insured, and otherwise to the estate of the Insured. All other indemnities of this policy are payable to the Insured." Plaintiff was named the beneficiary under the policy. Under the heading of "Additional provisions" there is this provision: "This policy does not cover death, disability, or other loss sustained in any part of the world except the United States and Canada, * * *."

It is fundamental in this jurisdiction and elsewhere that in construing policies of insurance the contract as a whole must be considered (Section 7532, Revised Codes; New York Life Ins. Co. v. Hiatt, 9 Cir., 140 F.2d 752); doubts must be resolved in favor of the insured (Parke v. New York Life Ins. Co., 95 Mont. 503,28 P.2d 443; Chard v. New York Life Ins. Co., Neb.,16 N.W.2d 858; Bobier v. National Casualty Co., 143 Ohio St. 215,54 N.E.2d 798; Stuhlbarg v. Metropolitan Life Ins. Co.,143 Ohio St. 390, 55 N.E.2d 640); where a policy is susceptible of two meanings, the one permitting recovery is to be adopted (Montana Auto F. Corp. v. British Fed. Fire Underwriters,72 Mont. 69, 232 P. 198, 36 A.L.R. 1495; Park Saddle Horse Co. v. Royal Indemnity Co., 81 Mont. 99, 261 P. 880; O'Neil v. New York Life Ins. Co., Idaho, 152 P.2d 707; Lee v. Guardian Life Ins. Co. of America, Sup., 46 N.Y.S.2d 241; Friend v. Southern States Life Ins. Co., 80 Okla. 76, 194 P. 204; General Ins. Co. of America v. Pathfinder Petroleum Co., 9 Cir.,145 F.2d 368; Schmidt v. Utilities Ins. Co., 353 Mo. 213,182 S.W.2d 181, 154 A.L.R. 1088); and if there be two inconsistent clauses appearing in an insurance contract, the one most favorable to the insured will be adopted. McLendon v. Carolina Life Ins. Co., 71 Ga. App. 557, 31 S.E.2d 429; Sturgis v. American Hospital Life Ins. Co., Mo. App., 174 S.W.2d 917.

Furthermore, a construction which will entirely neutralize one provision should not be adopted if the provision is susceptible of another construction which gives effect to all of its provisions and is consistent with general intent. Glenn v. Missouri Ins. Co., Mo. App., 179 S.W.2d 644. Such a meaning must be given to the terms of an insurance contract as would be ascribed to them by the average man in applying for insurance and reading the language of the policy. McGrail v. Equitable Life Assur. Soc. of The United States, 292 N.Y. 419, 55 N.E.2d 483; Bilsky v. Mutual Benefit Health Accident Ass'n, City Ct., 49 N.Y.S.2d 149; and Id., 182 Misc. 122, 49 N.Y.S.2d 848; Handley v. Mutual Life Ins. Co. of New York, Utah,147 P.2d 319, 152 A.L.R. 1278; Atlas Assurance Co. v. Lies,70 Ga. App. 162, 27 S.E.2d 791; Lee v. Guardian Life Ins. Co. of America, Sup., 46 N.Y.S.2d 241; Shain v. Mutual Benefit Health Accident Ass'n, 232 Iowa 1143, 7 N.W.2d 806; New York Life Ins. Co. v. Rotman, 231 Iowa 1249, 3 N.W.2d 603. Insurance contracts are prepared by the insurer and uncertainties must be construed most strongly against the one who caused the uncertainties to exist, i.e. the one who prepared the contract. Section 7545, Revised Codes.

Here there is a direct provision in the policy to the effect that indemnity for loss of life of the insured is payable to the beneficiary. All other indemnities, according to paragraph 11, are payable to the insured. Hence, there was no occasion for a beneficiary except on the theory that she shall receive indemnity for loss of life of the insured. The average man reading this provision would understand that it was intended to award some indemnity for loss of life brought about by accidental means. While Part B above quoted would ordinarily be restricted to accidental disability short of accidental death, yet I think its provisions should not be given such a restrictive meaning when the instrument taken as a whole would be understood by the average man as contemplating indemnity for loss of time brought about by accidental death. One element of recovery for wrongful death is loss of time (Melzner v. Northern P. R. Co., 46 Mont. 162,127 P. 146) measured by the life expectancy of the deceased. It is not unreasonable to suppose that the decedent understood that he was insuring against such loss (New York Life Ins. Co. v. Hiatt, supra) limited, however, to the twenty-four months provided in Part B of the contract. To restrict Part B to disability resulting from an accident not producing death neutralizes many of the provisions of the policy above alluded to and particularly paragraph 11 which specifically states that indemnity for loss of life of the insured is payable to the beneficiary, and this we are not permitted to do if by a fair interpretation of the contract we may give effect to all of its provisions.

I think the contract fairly construed means that for loss of time resulting from injuries not resulting in death payment of the indemnity must be made to the insured, and for loss of time resulting from accidental death the payment of the indemnity must be made to the beneficiary, subject of course to the maximum of twenty-four months. What conceivable reason would there be for a beneficiary if the policy simply covers disability, not producing death and if all payments go to the insured. I am not able, moreover, to understand the position of my associates wherein they hold that if the policy does cover loss of time through accidental death the indemnity must be paid to the estate and not to the beneficiary.

The majority opinion relies upon the case of Hill v. Travelers' Ins. Co. of Hartford, Conn., 146 Iowa 133,124 N.W. 898, 899, 28 L.R.A., N.S., 742. The policy in that case was wholly different from the policy here. That policy had printed on the back the following: "The Travelers' Insurance Company of Hartford, Connecticut, Limited Health Policy of Life of George H. Craine." This was all there was in the policy that hinted at any coverage for loss of life. The court simply held that this endorsement was no part of the contract. The court implied that if it had been a part of the contract a different rule might result. Here, however, we have a positive statement in the policy that indemnity for loss of life shall be payable to the beneficiary. A beneficiary was named. There is a declaration that the policy does not cover death sustained in any part of the world except the United States and Canada. Certainly that is tantamount to a declaration that it does cover death sustained in the United States and Canada. I concede that ordinarily the word "disability" does not contemplate death. But I know of no rule of law that prohibits the parties to an insurance contract from agreeing that disability due to the death of the insured shall entitle the beneficiary to indemnity for a limited period as here.

My associates also rely upon the case of Paul v. Fidelity Casualty Co. of New York, Mo. App., 34 S.W.2d 978, 979. The policy there considered was likewise wholly different from that here. It insured for total or partial illness-disability. It contained this clause: "In the event of the assured's death prior to the payment of any indemnity to which the assured may have become entitled under this policy such indemnity shall be paid by the company to the beneficiary." The court properly held that the beneficiary was entitled to the payment of such sums only as would be due under the policy to the assured himself. There is nothing in the policy in this case so restricting the rights of the beneficiary.

The case of Ferguson v. Penn Mutual Life Ins. Co., 305 Ill. App. 537, 27 N.E.2d 548, 550, cited and relied upon by my associates is of no aid in the solution of the problem before us. In that case the policy contained nothing indicating any liability for the loss of life. All that the court held was that under such a policy requiring proof of loss during the "continuance of disability" it must be furnished before death.

The case of Bishop v. Morrison-Knudsen, 64 Idaho 806, 137 P.2d 963, cited by my associates does not support their conclusion. That case involved the Workmen's Compensation Law and had nothing to do with an insurance policy. As I said before, disability does not ordinarily include disability due to death but the parties to a contract may agree otherwise. That, in my opinion, is what they have done here.

The happy discovery proclaimed in the next to the last paragraph of the opinion is hardly sufficient condemnation of the patent ambiguities in this contract. I think the court in the case of New York Life Ins. Co. v. Hiatt, 9 Cir., 140 F.2d 752,754, properly characterized such a declaration by saying: "We think this is not the way to promote fair speaking in insurance policies. Misleading double-talk in these contracts can not be effectively discouraged by the mere wagging of an admonitory finger."

For an additional reason I think my associates are in error in holding that the court properly sustained the demurrer to the complaint. Certainly the contract of insurance is ambiguous. If the ambiguities may not be resolved against the insurer within the rules above stated, then in any event the ambiguities may be explained by oral evidence, Section 7538, Revised Codes, and Butte Water Co. v. City of Butte, 48 Mont. 386, 138 P. 195. When that may be done it is improper to sustain a demurrer to the complaint for the question resolves itself into one of the sufficiency of the proof and not of the pleading.

In my opinion the court erred in sustaining the demurrer to the complaint.