Bishop v. Capitol Life Ins. Co., 47803

• Decision Date: 24 January 1976
• Docket Number: No. 47803,47803
• Parties: Jack BISHOP, Appellant, v. The CAPITOL LIFE INSURANCE COMPANY et al., Appellees.
• Court: Kansas Supreme Court

Page 1125

545 P.2d 1125

218 Kan. 590

Jack BISHOP, Appellant, v. The CAPITOL LIFE INSURANCE COMPANY et al., Appellees.

No. 47803.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. The origin or inception of a sickness or disease, within the meaning of a health and accident policy requiring that sickness and disease be contracted after the effective date of the policy, is that point in time when the disease becomes manifest or active or when there is a distinct symptom or condition from which one learned in medicine can diagnose the disease. (Following Southards v. Central Plains Inc. Co., 201 Kan. 499, Syl. 3, 441 P.2d 808.)

2. The burden of proof is on the insurer to show the facts which bring a case within a specified exclusion in an insurance policy.

3. In an action to recover disability benefits under a health and accident policy, the trial court did not err in setting aside a jury verdict in favor of the insured and entering judgment in favor of the insurer on the ground the evidence was insufficient to support the verdict of the jury.

George E. Grist, of Grist & Bush, Wichita, argued the cause and was on the brief for appellant.

John W. Jordan, of Learned, Craig & Foley, Wichita, argued the cause and was on the brief for appellee.

OWSLEY, Justice:

In this action the plaintiff-appellant, Jack Bishop, seeks to recover disability benefits allegedly due him under a health and accident insurance policy issued by the defendant-appellee, Capitol Life Insurance Company (hereinafter referred to as Capitol). Capitol denied coverage on the ground the disease which caused the disability was in existence prior to the effective date of the policy. The jury found Capitol wrongfully denied coverage, and awarded plaintiff damages in the amount of $4,495.00. Upon motion of Capital, the trial court set aside the verdict of the jury and directed judgment be entered in favor of Capitol. Plaintiff contends there was sufficient evidence to sustain the verdict of the jury and the trial court erred in ruling otherwise.

Plaintiff had been employed as a mainteance worker for the United States Post Office in Wichita for more than ten years. At the time this action was brought he was about fifty years of age. On October 22, 1971, plaintiff procured a loan from Associates Financial Services Company of America, Inc., and in connection therewith he purchased a 'debtor-creditor' insurance policy from Capitol providing for the payment of monthly benefits to the creditor in the event plaintiff should become totally disabled by reason of sickness or injury. The insurance policy excluded from coverage any disability resulting from sickness or disease existing prior to the effective date of said certificate. These parts of the policy relevant to this appeal read as follows:

'MONTHLY BENEFIT FOR INJURY OR SICKNESS

'Part II

'When by reason of injury or sickness, the insured debtor is wholly and continuously disabled and prevented from engaging in each and every occupation or employment for wage or profit for which he is reasonably qualified . . . for more than fourteen consecutive days, the Company will pay periodically the monthly benefit stated in the schedule of this certificate for the period the insured debtor shall be so disabled . . . but in no event beyond the expiration date stated in the Schedule of this certificate.

'EXCEPTIONS AND LIMITATIONS

'Part III

'Disability resulting from an accident occurring or from a sickness or disease existing prior to the effective date stated in the Schedule of this certificate is not covered.'

On May 17, 1972, almost seven months after issuance of the policy, plaintiff entered the Veterans Administration Hospital complaining of chest pains and shortness of breath. During his hospitalization he was under the care and supervision of Dr. Angelita Gabatin, a staff physician and specialist in internal medicine. Dr. Gabatin conducted a complete medical examination of plaintiff, including a physical examination, cardiogram, vectorcardiogram and neurological examination. It was Dr. Gabatin's initial diagnosis that plaintiff was suffering from hardening of the arteries which was causing chest pain and difficulty in breathing. In her opinion he had suffered 'an old heart attack' which was evidenced by the presence of an old scar on the posterior wall of his heart. Plaintiff was treated for arteriosclerotic heart disease and released from the hospital on June 22, 1972.

On June 14, 1972, prior to release from the hospital, plaintiff submitted a written claim to Capitol for benefits under the policy issued him, by reason of total disability resulting from 'coronary heart disease.' Capitol denied coverage of his disability, maintaining the disability, if any, was caused by sickness or disease in existence prior to the effective date of the policy. Suit followed and plaintiff brings this appeal from the trial court's order setting aside the jury verdict in his favor and directing a verdict for Capitol. It was the judgment of the trial court that as a matter of law the evidence was insufficient to sustain the verdict of the jury.

On appellate review of a trial court's ruling on a motion for a directed verdict, this court is governed by the same standards applicable to the trial court. (Apperson v. Security State Bank, 215 Kan. 724, 528 P.2d 1211.) The question thus presented for our consideration is whether there was any substantial evidence to support the jury's finding that the cause of the disability was not in existence prior to the effective date of the policy. The burden is upon the insurer to prove the facts which bring the case within the specified exclusion. (Southards v. Central Plains Ins. Co., 201 Kan. 499, 441 P.2d 808.)

A similar controversy was before this court in Southards, wherein we stated the test of the origin or inception of a sickness or disease, within the meaning of a health and accident policy requiring that sickness and disease be contracted after the effective date of the policy, to be that point in time when the disease becomes manifest or active or when there is a distinct symptom or condition from which one learned in medicine can diagnose the disease. This is the rule followed by the majority of courts which have considered the question and it is controlling in the instant case. Thus, we focus our attention on the issue of whether the disease causing plaintiff's disability was manifest or active prior to the date of the policy, or whether there was a distinct symptom from which one learned in medicine could diagnose the disease prior to the date of the policy.

After reviewing the record we are convinced the trial court properly directed that a verdict be entered in favor of Capitol in the absence of any substantial evidence to support a finding that the disease did not precede the issuance of the policy. In support of his claim, plaintiff offered the testimony of his personal physician, Dr. Henry Loewen, and of Dr. Angelita Gabatin. Dr. Gabatin's testimony was based solely on her examination of plaintiff subsequent to the effective date of the policy. She testified that plaintiff complained of chest pains and shortness of breath occurring in varying degrees over the past several years and increasing in the last few weeks before being admitted to the hospital. Based on tests conducted in the hospital, Dr. Gabatin detected the...