Alessandro v. Massachusetts Cas. Ins. Co.

• Decision Date: 11 February 1965
• Citation: 232 Cal.App.2d 203,42 Cal.Rptr. 630
• Court: California Court of Appeals Court of Appeals
• Parties: Salvatore F. ALESSANDRO, Plaintiff and Appellant, v. MASSACHUSETTS CASUALTY INS. CO., Defendant and Respondent. Civ. 426.

Page 630

42 Cal.Rptr. 630

232 Cal.App.2d 203

Salvatore F. ALESSANDRO, Plaintiff and Appellant, v. MASSACHUSETTS CASUALTY INS. CO., Defendant and Respondent.

Civ. 426.

District Court of Appeal, Fifth District, California.

Feb. 11, 1965.

William O. Burt, Palm Springs, for appellant.

Osterman & Soll, Beverly Hills, for respondent.

RALPH M. BROWN, Justice.

Appellant appeals from a defense judgment of the court following a nonjury trial on the merits in his action against the respondent for breach of a contract of disability insurance.

The policy providing for disability benefits was issued by the respondent in 1956. The pertinent terms of the policy are as follows:

'ACCIDENT TOTAL DISABILITY

'If the Insured suffers such accidental bodily injury resulting in a total disability as defined in miscellaneous provision 'E', the Company will pay the monthly indemnity provided by this policy during the continuance of such total disability * * *.

'ACCIDENT PARTIAL DISABILITY

'If the Insured suffers such accidental bodily injury resulting in a partial disability as defined in miscellaneous provision 'E,' the Company will pay indemnity at the rate of one-half of the monthly indemnity provided by this policy for a period not a exceed six months during any continuous disability * * *.

'SICKNESS TOTAL DISABILITY

'If the Insured suffers such sickness resulting in a total disability as defined in miscellaneous provision 'E', and the total disability commences while this policy is in force, the Company will pay the monthly indemnity provided by this policy during the continuance of such total disability for a period not to exceed 24 consecutive months * * *.'

'Miscellaneous Provisions

'* * *

'E. The term 'total disability' whenever used in this policy shall mean inability to engage in any part of the duties of the Insured's regular occupation. The term 'partial disability' whenever used in this policy shall mean ability of the Insured to perform one or more but not all of the duties of his occupation.'

On November 16, 1958, appellant suffered a disability, the nature extent and duration of which is the subject of this controversy. Appellant was paid disability benefits from December 29, 1958, to and including January 6, 1960, at the rate of $200 per month. After termination of the benefits the appellant commenced this action in two counts based on breach of contract and declaratory relief, while respondent resisted and cross-complained on the theory of fraud and deceit to recover the amount of benefits paid. Respondent was unsuccessful on its cross-complaint but does not appeal from the judgment. However, appellant appeals from the judgment in favor of the respondent on his complaint.

Appellant's position is that he is entitled to further benefits for total disability caused by accidental bodily injury, while respondent's position is that any disability suffered by appellant was caused by sickness, and falls under the sickness benefits provisions of the policy.

At the time of the alleged injury the appellant was, and for the previous sixteen years had been the owner and operator of a business the general purpose of which was the repair and maintenance of all types of refrigeration and air conditioning equipment. This necessitated the replacement of worn or burned-our parts, reconditioning the same, repairing leaks, recharging with gas, replacement of motors and incidental related duties. Though he had in prior years employed as many as fourteen employees, at the time of the occurrence of the injury and for three years prior to that time he did all the work himself. This type of refrigerating equipment is generally located in corners or in places which are difficult to reach, so that the workmen must reach in with an awkward or unnatural position. On the day in question the appellant was engaged in repairing a refrigerator walk-in box which was sunken about one foot in the ground. Sitting on a ledge formed by the ground, it was necessary to bend forward in an awkward position to replace a control. 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. When he tried to straighten up he felt as though his body from the waist down was paralyzed and experienced pain radiating from his back to the left leg. After some difficulty, he was able to drive home and get into bed. His left leg felt as though it was completely paralyzed and he was in pain. He was unable to get an appointment with his doctor until December 2d, during which time he stayed in bed. Appellant rejected the doctor's recommendation for immediate surgery for a herniated disc. He was then under the care of an osteopath for the next six months and treated by manipulation and exercises. Then upon recommendation of physicians at a university clinic, he remained in bed at his home for about three months. For the next three months he was intermittently confined to his bed. Thereafter, for a period of nine months he wore a back brace.

In June 1960 he sold his business to a Mr. Don Fields who had come to work for him in January 1960, and in May 1961 the appellant obtained a position teaching refrigeration and air conditioning at a school in Chino.

In November 1959 the appellant was under motion picture surveillance of a detective agency and upon respondent's receiving the results of the motion pictures, the disability payments were discontinued on January 6, 1960, and thereafter this action was filed.

According to the policy, it is clear that the liability of respondent to the appellant depends on (1) the cause of disability, whether due to accidental bodily injury or sickness, illness or disease; (2) the extent of the disability, whether partial or total by policy definition; and (3) the duration of the disability.

The trial judge found, in pertinent part, that the appellant did not suffer an accidental bodily injury on November 16, 1958 (Finding No. 6); that on November 16, 1950, and for several years preceding November 16, 1958, the appellant was suffering from an illness known as degenerative intervertebral disc disease of the lumber spine (Finding No. 7); and that any disability suffered by appellant on November 16, 1958, and thereafter, up to and including May 2, 1961, was proximately caused by, and was the direct result of the said pre-existing sickness from which he was then suffering (Finding No. 8); and what it was not true that he became totally disabled or was continuously disabled from November 16, 1958, to May 2, 1961, or that he had been damaged. The conclusions of law were that the respondent was entitled to judgment, and judgment was entered accordingly.

With some difficulty we have concluded that appellant's claim that this was an accident is incorrect. The definition of the word 'accident' within the meaning of insurance law is discussed in volume 10, Couch on Insurance 2d, and the following quotations therefrom are pertinent:

Section 14:18, entitled Particular definitions of 'accidental,' recites as follows:

"Accidental' has been variously defined as----

'--'happening by chance or unexpectedly taking place not according to the usual course of things; fortuitous; befalling by chance out of the regular course of things; * * *'

'--'happening by chance; unexpectedly taking place; not according to the usual course of things or not as expected.'

'* * *

'An accidental bodily injury is a localized abnormal condition of the living body directly and contemporaneously caused by accident.'

Section 41:20, entitled Accidental occurrence as including force or violence, recites as follows:

'Some element of force or violence is generally present in an accidental occurrence and the concept may therefore be defined in terms of force. * * *'

Section 41:24, entitled Voluntary act causing foreseeable harm, recites as follows:

'Where the harm which befalls the insured is a reasonable or probable consequence of his volitional act, the harm, by definition, cannot be deemed accidental.

'To illustrate, if a person suffering from weakness or disease subjects himself to conditions which would not injuriously affect persons in ordinary health, but which are dangerous to him, and injury results, the cause is not accidental. * * *'

The problem of whether the harm sustained by the appellant was the result of accidental bodily injury covered under the accident provisions of the insurance policy in question or disease, illness or sickness covered under the sickness provision of said policy must be considered in terms of whether the accident or the disease process is the proximate cause of the harm or disability.

If no considerable injury at all would have resulted had the appellant not been afflicted with the existing disease or condition, then the accident could not be considered the proximate cause of the harm, but rather the disease must be so considered. (Herthel v. Time Ins. Co., 221 Wis. 208, 265 N.W. 575; Egan v. Preferred Acc. Ins. Co. of New York, 223 Wis. 129, 269 N.W. 667, 107 A.L.R. 1107.)

The word 'accident' in the frame of reference of insurance policies, as defined by the case law of California, is discussed by Mr. Justice Traynor in the case of Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co., 51 Cal.2d 558, at page 563, 334 P.2d 881, at page 884, as follows:

'No all-inclusive definition of the word 'accident' can be given. It has been defined 'as 'a casualty--something out of the usual course of events, and which happens suddenly and unexpectedly and without design of the person injured.' Rock v. Travelers' Ins. Co., 172 Cal. 462, 465, 156 P. 1029, 1036, L.R.A.1916E 1196; Richards v. Travelers Ins. Co., 89 Cal. 170, 175, 26 P. 762, .' Zuckerman v. Underwriters at Lloyd's, 42 Cal.2d 460, 473, 267 P.2d 777, 784. It "includes any event...