Bates v. Casualty Co. , 126 W. Va. 620 ( 1944 )

This proceeding was brought before a justice of the peace in Raleigh County for the purpose of recovering for a personal injury under what may be termed an industrial insurance policy. Judgment in favor of the plaintiff for three hundred dollars was rendered November 21, 1942. Defendant appealed to the Circuit Court, and the matter was submitted under an agreed statement of facts, the judge acting in lieu of a jury, and from a finding and judgment for the plaintiff, this Court granted a writ of error.

Plaintiff, on December 9, 1941, had one of his legs so severely injured by a slate fall in a coal mine where he was employed as a loader, that it was necessary on March 3, 1942, to amputate the injured member four inches above the knee. The policy under the terms of which recovery is sought was then in effect. A claim of loss was evidently filed, and thereafter, on March twenty-first, he accepted from Inter-Ocean Casualty Company, indorsed and used, a draft for one hundred eighty-nine dollars and fifty cents, being the amount of two hundred dollars payable to an insured "for loss of one hand or one foot" under "Part I" of the policy, minus premiums aggregating ten dollars and fifty cents admittedly due the insurer for the months of January, February and March. The plaintiff's present claim is based upon the provisions of "Part II" of the policy, which provides for a weekly indemnity of ten dollars for not more than fifty-two consecutive weeks to an insured who is "wholly and continuously disabled due to an accidental injury alone", the total disability of the plaintiff due to accident for the named period being conceded.

There being no controversy concerning the facts, there are but two questions to be decided, under the assignments of error before this Court:

Does the payment of its complete liability under the provisions of Part I of the policy fully satisfy all liability under both Part I and Part II of the insurance contract when read together, and

Does the receipt of the company's draft, used and indorsed by the claimant and bearing the following notation on its back above the claimant's signature constitute a total release of the insurer's liability: "The above balance being in full satisfaction, compromise and final settlement of all claims accrued or to accrue against Inter-Ocean Casualty Co., Cincinnati, Ohio, on account of any accident already sustained and any disease and any illness heretofore contracted."

It will be observed that if there is no additional liability against the defendant under the terms and conditions of the insurance policy in question beyond the amount already received by plaintiff, the second question is not reached.

The policy in question specifically covers loss by accident of certain parts of the body, and disability resulting from accident. There seems to be no general coverage under its provisions relating to loss of a member of the body. The coverage is entirely specific and only the provision applying to the loss of a foot covers the loss of a leg. There is no additional coverage for the entire or partial loss of a leg or an arm. Furthermore, the first sentence in Part I of the policy contains the following language:

"The company will pay for such loss, in lieu of all other indemnity under this policy, the following specific sum * * *." (Italics supplied)

And Part II, under the terms of which plaintiff now seeks recovery, provides in addition the following:

"Provided, That indemnity under this Part shall not be paid for a longer period than fifty-two consecutive weeks, nor for disability resulting from any loss specified in part I; * * *."

The loss of a foot is specified in Part I. Unfortunately, there is no provision of the policy which insures against his additional loss.

We believe from the foregoing that it is plain that Part I and Part II of the policy are expressly and distinctly segregated in their coverage, and that the loss of a foot, regardless of the location of the severance, is expressly covered by Part I, only. A policy of accident insurance containing specific, but no general coverage, we do not believe can be construed by the same rules applicable to the Workmen's Compensation Law so that the loss of a member of the body in so far as recovery is concerned, is guided by, but not restricted to, the express provisions relating thereto.

We believe for the foregoing reasons that the judgment of the Circuit Court of Raleigh County should be reversed and the case dismissed, and it is so ordered.

Reversed and dismissed.