Cain v. National Old Line Ins. Co.

• Decision Date: 14 December 1973
• Docket Number: No. 9751,9751
• Citation: 1973 NMSC 121,516 P.2d 668,85 N.M. 697
• Parties: Nedra C. CAIN, Administratrix of the Estate of Sidney L. Cain, Deceased, and Nedra C. Cain as personal representative of Sidney L. Cain, Deceased, Plaintiff- Appellant, v. NATIONAL OLD LINE INSURANCE COMPANY, a foreign insurance corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 668

516 P.2d 668

85 N.M. 697

Nedra C. CAIN, Administratrix of the Estate of Sidney L.

Cain, Deceased, and Nedra C. Cain as personal

representative of Sidney L. Cain, Deceased, Plaintiff- Appellant, v. NATIONAL OLD LINE INSURANCE COMPANY, a foreign insurance

corporation, Defendant-Appellee.

No. 9751.

Supreme Court of New Mexico.

Dec. 14, 1973.

[85 NM 697] Hunker, Fedric & Higginbotham, Roswell, for appellant.

Atwood, Malone, Mann & Cooter, Robert E. Sabin, Roswell, for appellee.

OPINION

OMAN, Justice.

This is a suit for an alleged breach and the construction of an insurance contract. The trial court entered judgment for the defendant (Insurer) and plaintiff (Administratrix of the Estate of the Insured) has appealed. We affirm.

The Insurer had reinsured decedent under a Cancer Insurance Policy issued by Century Life Insurance Company. The policy of insurance was issued on April 26, 1965, and, insofar as here pertinent, provided:

'* * * (T)he Company, does hereby insure the Insured * * *, to the extent herein provided, against loss resulting from hospital confinement and other specified expenses in accordance with the provisions, conditions, and limitations stated in this policy caused exclusively by cancer, hereinafter called 'such sickness"

'If any Insured shall become afflicted with cancer * * * while this policy is in force, the Company will pay indemnities according to the Schedule of Benefits, * * * for the expenses incurred by any Insured within three years from the date of the first treatment for such sickness, * * *.'

'No loss shall be payable under this policy unless cancer is positively so diagnosed by a legally qualified Pathologist based on tissue examination * * *.'

The trial court made the following pertinent findings of fact which are not challenged:

'In February, 1968, surgical and pathological examination disclosed that (Insured) was suffering from cancer of the colon.

'The cancer of the colon was treated surgically in February of 1968.

'(Insured) filed a claim with (Insurer) for the benefits to which he was entitled under (the) policy * * * as a result of suffering from medically diagnosed cancer.

'For a period of three years, until February, 1971, all benefits to which (Insured) was entitled as a result of the medically diagnosed cancer were paid (by the Insurer).

'The cancer in the colon spread or metastasized from the colon to the let lung. The spread of the cancer was discovered by surgical and pathological examination in January, 1972.

'Metastasis is the transfer or spreading of disease from one part of the body to another not directly connected with it.

'At all times from the first treatment of the cancer in February, 1968, to the discovery of the cancer in the lung in January, 1972, cancer disease remained in (Insured's) body.

'In February, 1972, (Insured) filed a claim with (the Insurer) for the benefits to which he claimed to be entitled under (the) policy * * * as a result of the discovery of the cancer of the lung.'

The sole question presented to the trial court was whether the Insured was entitled to recover under the policy for expenses incurred for treatment of the cancer after the lapse of three years from the date of the first treatment therefor because the cancer had spread to the lung.

Plaintiff takes the position that the policy was ambiguous and uncertain. This position is predicated upon her contentions that (1) cancer was not, but should have been, defined in the policy; (2) metastasis was not, but should have been defined and expressly excluded from the policy coverage, if this is what the Insurer intended; and (3) the trial court 'equates cancer and metastasis as being one and the same thing, when they are not.'

The term 'cancer' is commonly understood to mean a malignant growth which expands and often spreads to other sites or parts of the body. See definitions in Webster's Third New International Dictionary Unabridged (1961); Random House American Dictionary (1968); American Heritage Dictionary of the English Language (1969).

The fact that words and terms used in contracts of insurance, as...