Amicone v. Kennecott Copper Corp.
| Decision Date | 06 September 1967 |
| Docket Number | No. 10736,10736 |
| Parties | d 297 Steve AMICONE, Plaintiff and Appellant, v. KENNECOTT COPPER CORPORATION, Defendant and Respondent. |
| Court | Utah Supreme Court |
Hanson & Garrett, Salt Lake City, for appellant.
Parsons, Behle, Evans & Latimer, Salt Lake City, for respondent.
Plaintiff brought this action to establish his claim to certain benefits provided in defendant's, Kennecott Copper Corporation retirement plan for salaried employees. The case was tried to a jury and submitted on instructions and special interrogatories. The trial court determined that the answers favored defendant and entered judgment in its favor and plaintiff appeals.
The claim of plaintiff is premised on the provisions in the plan granting benefits to employees who are permanently and totally disabled. The plan is 'noncontributory'--initiated and sustained by the defendant employer. Among other things, the plan provides that an employee, to qualify for retirement benefits for being permanently and totally disabled, must (1) have completed ten years or more of continuous service to the date that his employment ceases, and (2) have his permanent and total disability established in the opinion of a qualified physician designated by the defendant. The plan defines permanent and total disability in the following terms:
Permanent and total disability for the purposes of the Plan means disability by bodily injury or disease which prevents the Employee from engaging in any occupation or employment whatsoever for remuneration or profit, and which disability, in the opinion of a qualified physician appointed by the corporation, will be permanent and continuous during the remainder of the Employee's lifetime * * *
Plaintiff has more than fulfilled the first requirement--more than ten years of continuous service, principally performing manual labor. However, he has failed to fulfill the second requirement--the opinion of the company-designated physician, Dr. E. B. Kuhe, that he was permanently and totally disabled. After examining the plaintiff, Dr. Kuhe reported to the company that plaintiff would never be able to do hard manual labor, but could perform clerical work, light bench work, watchman or guard duties. He concluded that defendant was not totally disabled.
At the trial three physicians testified--Dr. Kuhe, Dr. Mark H. Greene (plaintiff's personal physician), and Dr. Boyd G. Holbrook. All three witnesses testified substantially the same, i.e., that plaintiff could perform all types of manual labor that did not involve excessive stooping, lifting and twisting.
It was revealed at the trial that, four days after plaintiff's employment was terminated (January 19, 1965), he joined a bowling league; he bowled 42 games during the remainder of the season, averaging 175 per game. He obtained employment in October 1965, as a suspervisor with a neighborhood youth corps. He performed satisfactorily for about 2 1/2 months when he sustained an injury. Upon cross-examination, plaintiff conceded that there were types of gainful employment within his physical and mental capacities.
Plaintiff urges this court to interpret 'permanent and total disability' the same as it did in Colovos v. Home Life Insurance Co. of New York, 1 i.e., whether the plaintiff is so disabled that he is prevented from engaging in any occupation and performing any work substantially the same kind and nature as he was accustomed and able to perform prior to the time he became afflicted with the claimed disability. In that case, the court was interpreting the meaning of terms contained in a presently subsisting contract--a health and accident insurance policy. 2
In the instant case, the retirement plan is in the nature of a unilateral contract. The defendant made an offer to its salaried employees, in the form of a promise, for the completion of certain acts by them, and only when these acts were completed would there be a binding contract. The plaintiff did not perform all of the acts or conditions required. Namely, he did not qualify as being permanently and totally disabled as required by the terms of the plan. Therefore, there was no binding contract and he is not entitled to benefits under the plan. 3
This court has had occasion to review pension plans similar in import to the instant one and has observed that...
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Gronlund v. Church & Dwight Co., Inc.
...11, 215 N.E.2d 336 (1966); Bruner v. Mercantile National Bank, 455 S.W.2d 323, 328 (Tex. Civ.App.1970); Amicone v. Kennecott Copper Corp., 19 Utah 2d 297, 431 P.2d 130 (1967)." Wyper v. Providence Washington Ins. Co., 533 F.2d 57, 62 (2d Cir. 1976); Russel, supra; Dolan, Viewing the evidenc......
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Shaw v. Atlantic Coast Life Ins. Co.
...Trust, 281 P.2d 762 (Okla.1955) (employee sued trust to compel payment of share in profit-sharing plan); Amicone v. Kennecott Copper Corp., 431 P.2d 130 (Utah 1967) (employee sued employer for disability benefits from pension plan). A minority of state courts have viewed the matter under tr......
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Wyper v. Providence Washington Ins. Co.
...11, 215 N.E.2d 336 (1966); Bruner v. Mercantile National Bank, 455 S.W.2d 323, 328 (Tex.Civ.App.1970); Amicone v. Kennecott Copper Corp., 19 Utah 2d 297, 431 P.2d 130 (1967). In the present case, appellant gave the pension board no opportunity to consider his medical condition at the time o......
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Dangott v. ASG Industries, Inc.
...the employer has made an offer of a unilateral contract, which the employee accepts by his full performance, Amicone v. Kennecott Copper Corp., 19 Utah 2d 297, 431 P.2d 130 (1967). We conclude the rights of the parties are controlled by the principles of contract law under ordinary rules of......