Chavez v. Continental Ins. Co., 760523

• Decision Date: 10 June 1977
• Docket Number: No. 760523,760523
• Citation: 218 Va. 76,235 S.E.2d 335
• Parties: Carmen C. CHAVEZ v. The CONTINENTAL INSURANCE COMPANY. Record
• Court: Virginia Supreme Court

Page 335

235 S.E.2d 335

218 Va. 76

Carmen C. CHAVEZ v. The CONTINENTAL INSURANCE COMPANY.

Record No. 760523.

Supreme Court of Virginia.

June 10, 1977.

William B. Moore, Arlington (Phillips, Kendrick, Gearheart & Aylor, Arlington, on brief), for plaintiff in error.

Frank B. Miller, III, Richmond (Edward A. Marks, Jr., Sands, Anderson & Marks, Richmond, on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

Carmen C. Chavez filed a motion for judgment in the trial court against The Continental Insurance Company seeking to recover the principal sum of $50,000 under an insurance policy providing for such payment for permanent total disability. On her appeal from the final order of the trial court striking her evidence and entering summary judgment for Continental, the only question is whether the evidence presented by Mrs. Chavez was sufficient to create a jury issue.

Mrs. Chavez, the wife of an employee of Eastern Air Lines, Inc., was insured under a group accident policy issued by Continental to insure eligible employees of the airline "and their eligible dependents, if any," against loss from death or specified bodily injuries caused by accident. Chavez was already insured as a Class I Insured, an eligible, regular, permanent employee, when his wife was added to the policy in January, 1970, as a Class II Insured, the "spouse" of a Class I Insured.

Endorsement No. 7 amended the coverage of the policy to include permanent total disability, therein defined as follows:

"Permanent Total Disability means such disability commencing within 180 days from the date of accident and continuing for twelve consecutive months, which shall prevent the Insured from engaging in any occupation or employment for which he is fitted by reason of education, training and experience for the remainder of his life."

Chavez was insured for the principal sum of $100,000, and his wife for $50,000, and all premiums were paid through monthly deductions from his pay. The principal sum, reduced by any other payments made by Continental under the policy, was payable for permanent total disability. There is no dispute that the amount to which Mrs. Chavez is entitled, if she is totally permanently disabled, is $50,000, plus interest and costs.

The evidence, viewed in the light most favorable to her, shows that Mrs. Chavez was injured in an automobile accident on October 12, 1970, when her vehicle was struck in the rear by another car. Mrs. Chavez suffered injury to her spine, abrasions and contusions on her legs, and injuries to her left shoulder and above her right eye. She received no broken bones. After being treated in the emergency room of a hospital she was treated by her family doctor. She suffered from headaches, vomiting, difficulty in swallowing, weakness, weight loss of 20 pounds in approximately two weeks, difficulty in walking, and pain and stiffness. She remained in bed for the first three and a half weeks after the accident. Thereafter, she underwent physical therapy at a hospital for two and a half to three months. Persistent stiffness from her neck to her legs, causing difficulty in movement, prompted her to consult an orthopedic surgeon, Dr. James J. Scheiner, who put her in a hospital where she remained from January 24, 1971, until February 12, 1971, and was treated with traction physical therapy twice a day, rest, medication, and injections. Although her condition improved somewhat as a result of her hospital stay, she had remained under Dr. Scheiner's care ever since 1971.

Mrs. Chavez, a native of Colombia, South America, graduated from high school there in 1957. For approximately a year she received training as a hairdresser before emigrating in 1958 to the United States, where she was employed as a hairdresser in the Washington, D.C., area until her accident. There was evidence that as a result of her injuries Mrs. Chavez was unable to engage in hairdressing, the only work she had ever done for wages. She had tried several times to resume this work but each time after a few hours she could not continue because of pain and stiffness. There was no evidence that she had sought any other employment. She testified that she could not work as a manicurist, that she was "not a real estate lady," and that she did not know "what there is to do." At the time of trial she was still wearing braces because of her physical condition.

Mrs. Chavez had two children, including a daughter born in 1973. The birth was normal, and Mrs. Chavez was able to care for the baby and to roll her around the neighborhood in a carriage. There was evidence that Mrs. Chavez could do only light housework after the accident and that her husband and son helped her about the house. For some months after the accident her mother-in-law stayed with them to assist her. Mrs. Chavez had resumed cooking for the family and had entertained friends at dinner, but her husband usually set the table. He also shopped for groceries and washed the dishes. Mrs. Chavez testified that she did her own housework, but that she had to take her time and do it slowly.

Mrs. Chavez drove an automobile before her accident, but was unable to do so afterwards, and in riding as a passenger for more than 40 or 45 minutes she found it necessary to stop, rest, and walk before continuing. Some nine months prior to the trial, she and her family flew to Orlando, Florida, for several days and visited Disney World twice for a few hours each visit, during which Mrs. Chavez was moved about in a wheelchair. Five months before the trial, Mrs. Chavez and her family made a trip by air to Bogota, Colombia, to visit her parents for 20 days. When they changed airplanes in Miami, Mrs. Chavez walked; when they arrived at the Bogota airport, and again when they departed, Mrs. Chavez walked the distance between the airplane and an automobile. There was evidence that during the flights Mrs. Chavez walked in the aisle of the airplane to avoid prolonged sitting. There was also evidence that Mrs. Chavez was sick in Bogota, spent the first two days in bed, rested, and during her visit only went out of the house for sight-seeing once or twice.

Dr. Scheiner testified that in his opinion Mrs. Chavez suffered chronic musculo-ligamentous strain of the cervical spine (neck), thoracic spine (region of the shoulder blades), and lumbar spine (region of the pelvis); that he had found that if orthopedic injuries do not heal within a year, there will probably be no healing; and that his objective findings substantiated the complaints which Mrs. Chavez had voiced for almost five years since her accident.

Dr. Scheiner had advised Mrs. Chavez to avoid lifting anything over 15 or 20 pounds. She was unable to participate in athletics, do heavy housework or anything which required much bending, stooping, climbing, jumping, or running, and she was to avoid prolonged standing and prolonged sitting. He testified that Mrs. Chavez could only work part-time, and then only in a "sedentary type of occupation, probably as a receptionist, or something which involves basically sitting for a few hours at a time." He did not know her qualifications for work as a receptionist. In his opinion she was permanently and totally disabled for her previous employment as a hairdresser.

Chavez testified that his wife could not write English very well, and there was evidence that she had difficulty with the spoken language.

In striking the plaintiff's evidence, the...