Capps v. American Mut. Liability Ins. Co., 20199
| Decision Date | 27 June 1980 |
| Docket Number | No. 20199,20199 |
| Parties | Archie CAPPS, Appellant, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY and St. Regis Paper Company, Appellees. |
| Court | Texas Court of Appeals |
Charles C. Whitener, Dallas, for appellant.
John T. Sears, Gardere, Wynne, Jaffe & DeHay, Dallas, for appellees.
Before GUITTARD, C. J., and AKIN and STOREY, JJ.
Plaintiff, Archie Capps, appeals from a take-nothing judgment entered in favor of defendant, American Mutual Liability Insurance Company, contending that the trial court erred in allowing defendant to deduct both worker's compensation and social security disability payments from the amounts payable to plaintiff under its disability insurance policy. We hold that the policy provisions required that both amounts be deducted, and that the court properly allowed defendant also to deduct attorney's fees awarded plaintiff in the worker's compensation case. Affirmed.
Plaintiff was disabled on November 14, 1972, and disability payments under a disability insurance policy furnished by his employer became payable on February 20, 1973. Payments under the policy continued to age sixty-five at the rate of $597 per month. On January 15, 1974, plaintiff elected to receive a lump-sum settlement of $12,500 from his worker's compensation carrier. Included in the lump-sum settlement was $1,500 allowed as attorney's fees. Additionally, during the period when plaintiff was entitled to disability benefits, he received monthly social security benefits. Defendant made disability payments to plaintiff totalling $4,922.77, which represents the net amount after deducting worker's compensation and social security payments made to plaintiff between February 20, 1973, and the date he reached age sixty-five.
Plaintiff first contends that the anti-duplication clause in the insurance policy limited defendant to deduct one of either worker's compensation or social security payments, but not both. Alternatively, he argues that the clause is ambiguous and must be strictly construed against the insurer. The policy provides:
If the insured employee is entitled to disability benefits payable for himself and his family under the Federal Social Security Act or any Workmen's Compensation or Occupational Disease Law, the amount of monthly indemnity payable under this policy shall be reduced by the total amount payable under Social Security or any Workman's Compensation or Occupational Disease Law. (Emphasis added.)
The use of the word "or" in this anti-duplication clause does not make the clause ambiguous. Where the context demands, in order to give a provision effect and meaning, we must read the word "or" as disjunctive. Witherspoon v. Jernigan, 97 Tex. 98, 76 S.W. 445 (1903); Young v. Rudd, 226 S.W.2d 469 (Tex.Civ.App. Texarkana 1950, writ ref'd n. r. e.). If, on the other hand,...
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