Bretton v. Mutual of Omaha Ins. Co.
| Decision Date | 15 August 1985 |
| Citation | 110 A.D.2d 46,492 N.Y.S.2d 760 |
| Parties | Sharon BRETTON, Plaintiff-Respondent, v. MUTUAL OF OMAHA INSURANCE COMPANY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Anthony J. Mercorella, New York City, of counsel (William D. Hand and Barry J. Gainey, New York City, with him on the brief; Wilson, Elser, Edelman & Dicker, New York City, attorneys), for defendant-appellant.
Gerald J. Mondora, New York City, for plaintiff-respondent.
Before MURPHY, P.J., and SULLIVAN, ROSS, LYNCH and KASSAL, JJ.
Mutual of Omaha issued plaintiff an accident policy in the principal amount of $100,000, with additional medical benefits of $5,000, insuring her "against certain specified losses resulting, ... from accidental bodily injuries ... received in the manner specified in any section of Part A...." Among the injuries covered under Part A, which lists in five separate categories the manner in which the injury must occur to be covered, were those received while a passenger on a scheduled airline, while upon airport premises or in an airport bus or limousine, while riding as a passenger in a common carrier or while driving or riding in an automobile. Part B of the policy provides that when a covered injury results in one of the specified losses listed therein--life, limb or sight--Mutual of Omaha is obligated to pay the insured a corresponding fixed amount, ranging from one-quarter of the principal sum to the principal sum itself. Part C, designated as Medical Expense Benefits, provides for reimbursement of medical expenses actually incurred up to $5,000 for the treatment of any covered injury.
On August 11, 1977, plaintiff, en route to a business appointment after having landed at a Hong Kong airport, was injured when the taxicab in which she was a passenger stopped suddenly. She was treated by a local doctor and thereafter, upon her return to the United States, by various other doctors for an "exploded cervical disc." On September 26, 1977, plaintiff underwent surgery at New York Hospital for a damaged intervertebral cervical disc.
Mutual of Omaha refused to make any indemnity payment for plaintiff's injuries, other than to reimburse her for her medical expenses up to $5,000, on the ground that its policy, except for the medical expense benefit provision, affords coverage only for loss of life, limb or sight. Plaintiff thereafter commenced this action, seeking recovery for all of her medical expenses and the pain and suffering, lost wages, and disability which, she claims, are the result of the injuries she sustained in the taxicab accident.
At the trial, and before the jury was sworn, Trial Term ruled on the meaning and interpretation of the policy, construing it to cover injuries of any type up to the policy limits, if it be established that the injuries were received as a result of one of the covered risks listed in Part A of the policy. The court, over Mutual of Omaha's objections, received proof of a cervical intervertebral disc injury, pain and suffering, disability and its extent and duration; loss of time from employment, and medical and hospital expenses in excess of $5,000. After the court charged it in regard to its construction of the policy the jury rendered a verdict in plaintiff's favor of $100,000 for personal injuries and $5,000 for medical expenses upon which interest, totaling $47,250, was awarded from the date of submission of the claim. This appeal followed. We agree with Mutual of Omaha that, except for the medical expense benefit provision, which has a limit of $5,000, it is obligated to pay indemnity only for the specified losses of life, limb or sight, and modify accordingly.
The policy's terms and provisions clearly establish that it is not a general accident insurance policy, but rather a limited accidental death and dismemberment policy (see Mifsudo v. Mutual of Omaha Ins. Co., 100 A.D.2d 864, 474 N.Y.S.2d 120), affording coverage only for the specified losses of life, limb or sight, and for medical expenses for covered injuries up to $5,000. That the policy is limited in scope is pointedly brought to the insured's attention by the legend , which is superimposed across the first page in bold face letters. As a limited coverage policy, it provides insurance only for those specified losses described therein. (See Appleman, Insurance Law and Practice, §§ 354, 702 [1981].)
The insuring agreement plainly states that, before the insurer is obligated to pay, other than for the reimbursement of medical expenses, which is provided for in a separate provision, three separate conditions must be met. An insured must sustain a "certain specified loss", resulting from "accidental bodily injuries", which are "received in a manner specified" in the policy. That plaintiff, who had to undergo surgery for a herniated disc as a result of the taxicab accident, sustained accidental bodily injury is beyond dispute, as is her contention that she received her injury in a manner specified within at least two categories listed in Part A.
The requirement which plaintiff cannot meet is that the injury result in one of the "certain specified losses" against which the policy insures. Just as the policy listed the covered injuries in Part A, the specific losses covered under the policy are defined in Part B. Part B, entitled "BENEFITS FOR LOSS OF LIFE, LIMB OR SIGHT", states that "when covered injuries result in any of the specific losses shown below within one hundred days from the date of the accident, the Company will pay the applicable amount shown opposite such loss." Part B then proceeds to list the percentage of the policy's principal sum which will be paid to the insured for each of the various specific losses of life, limb or sight. Loss...
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