Conklin v. North Am. Life & Cas. Co.
| Decision Date | 18 March 1958 |
| Docket Number | No. 7698,7698 |
| Citation | 88 N.W.2d 825 |
| Parties | Morris M. CONKLIN, Plaintiff and Appellant, v. NORTH AMERICAN LIFE & CASUALTY COMPANY, Defendant and Respondent. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. When the language of a contract is clear and unequivocal it should be construed according to the meaning thereof and the intention of the parties, if that can be ascertained therefrom. It should be construed as a whole and all of its parts considered together.
2. Payment of the indemnity under an accident policy must be made in accordance with the terms of the policy unless the insurer waives the terms of the policy or is estopped from denying a change in the payments of the indemnity, or a new contract agreement in regard thereto is made by the parties.
3. Waiver is the intentional relinquishment of a known right. Its essential elements are the existence of a right, the knowledge thereof and an intention to relinquish such right, advantage or benefit, Voluntary choice is the very essence of waiver.
4. Estoppel refers to an abatement raised by law of rights and privileges of the insurer where it would be inequitable to permit their assertion. It necessarily implies prejudicial reliance of the insured upon some act, conduct or nonaction of the insured.
5. When the policy and the evidence in the case at bar are considered according to the above principles the plaintiff's injuries come under Clause 1 of the policy and particularly under that provision which provides that if there are two losses from the same accident the defendant is liable for the indemnity only for the larger loss and the weekly indemnity from the date of the accident to the date of such loss.
McGee & Van Sickle, Minot, for appellants.
Waldron & Kenner, Minot, for respondent.
Plaintiff brings this suit against the defendant, North American Life & Casualty Company, upon an accident insurance policy, dated May 6, 1946. He claims that on Oct. 8, 1948, while out with a hunting party, a gun in the hands of another member of the party, was accidentally discharged; that the blast penetrated his right leg between the ankle and the knee, injuring both the tibia and flesh of the leg, and as a result thereof he lost his foot and his leg; that since that time he has been wholly and continuously disabled. On that ground he asks payment of $3,400 as indemnity which he claims is due under the terms of the policy, and further claims payments for continued disability. Defendant admits the policy and the injury but claims, not only that it has made full payment under the policy, but has overpaid plaintiff in the sum of $2535.71.
By stipulation a jury was waived and the case was tried to the court. The court found the defendant had fully paid the plaintiff as provided by the policy and that the plaintiff was not totally disabled. Judgment was granted for a dismissal of the action. This is an appeal from that judgment and a trial de novo demanded.
As the plaintiff and defendant differ upon the construction of the policy in regard to classification of injuries and payments, it is necessary to set out the pertinent terms of the policy.
This is an accident policy, issued as a Golden Anniversary Policy of defendant on the special terms of $40 per annum and providing an indemnity of $50 per week for accident injuries to the insured. It provides that the defendant:
'Does hereby insure Morris M. Conklin * * * against loss resulting from accidental bodily injuries sustained during the terms of this policy as hereinafter limited and provided. * * *'
Examination of the policy shows that it provides for three classes of injuries which are indemnified separately. It provides first, for:
'Accident Indemnities.
Clause 1. If such accidental bodily injuries shall wholly and continuously disable the insured within ninety days from date of accident and prevent the Insured from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability shall result in any one of the following losses enumerated in this clause, or within one hundred eighty days from date of accident, irrespective of total disability, result in like manner in any one of such losses, the Company will pay the amount set opposite such loss, and in addition thereto, the weekly indemnity from date of accident to the date of such loss.
For loss of A Sum Equal to Weekly Indemnity
for
Both Hands or Both Feet or Sight of Both Eyes, 200 Weeks
Either an Arm or Leg, 132 Weeks
Either Hand or Foot, 100 Weeks
* * * * * *
* * * * * *
* * * * * *
Provided always, that if more than one of the losses enumerated in this clause shall result from any one accidental injury, the Company will pay only for the loss for which the largest amount is specified.
Or, in the event of the loss of both hands, or of both feet; or of the sight of both eyes, covered and defined as above, if the Insured shall so elect in writing within ninety days after the date of such loss, the Company will pay, in lieu of the specific indemnity enumerated in Clause 1, for such loss, the weekly accident indemnity as provided in Clause 2 for the period during which he shall live and be totally and continuously disabled from performing any and every kind of duty pertaining to his occupation. The Insured shall furnish the Company satisfactory evidence of the continuance of such disability. The occurrence of any loss named in this schedule shall immediately terminate the policy.'
Then it provides for:
'Total Disability
Clause 2. Or, if such accidental bodily injuries shall not result in a loss as specified in Clause 1, but shall, within sixty days from date of accident, continuously and wholly disable and prevent the Insured from performing any and every kind of duty pertaining to his occupation, (Which was designated as keeper of a general store.)
The Company will pay the insured the weekly indemnity for the entire period of such total disability.'
Finally it provided for:
'Partial Disability Indemnity
Clause 3. Or, if such accidental bodily injuries shall not result in a loss as specified in Clause 1, but shall, within sixty days from date of accident, or immediately following, total disability for which claim is made under Clause 2, continuously disable and prevent the Insured from performing one or more important daily duty or duties pertaining to his occupation, the Company will pay the Insured one-half of the weekly indemnity for the period of such partial disability not exceeding one hundred consecutive weeks.'
When the language of a contract is clear and unequivocal it must be construed according to the meaning thereof. Sec. 9-0702, NDRC 1943, and the intention of the parties, if that can be ascertained therefrom. Sec. 9-0703, NDRC 1943. It should be construed as a whole and all of its parts considered together and harmonized. Every clause, sentence or provision should be given effect consistent with the main purpose of the contract. Sec. 9-0703, NDRC 1943. See also 44 C.J.S. Insurance Secs. 294, 298, pp. 1155, 1196; Kinard v. Mutual Benefit Health & Accident Ass'n, D.C., 108 F.Supp. 780.
The language of the policy shows clearly that both parties thereto intended that indemnity was provided for the insured in case of accidental injury resulting in loss of limb, sight or time according to the provisions and limitations prescribed in the policy.
Plaintiff claims that the policy should be construed so that the results of his injuries entitled him to indemnity under Clause 2 of the policy. Defendant claims it should be construed so they come under Clause 1. To determine that, it is necessary to consider not only the provisions of the policy but also the results from the injuries the plaintiff suffered.
On Nov. 12, 1948, plaintiff reported his accident to the defendant and claimed as a result of the injuries he was unable to do any of his work. He had much trouble resulting from that injury. Defendant made its first payment under the policy of $285 on Nov. 17, 1948. That was $50 per week from the date of the accident. On Jan. 21, 1949, plaintiff signed a further report claiming he was still 'not able to do any work.' On Sept. 7, 1950, amputation of the leg six inches below the knee was had. The trouble still continued so that another amputation of the leg was had 3 1/2 inches below the knee. It seems that osteomyelitis had set in on the bone so that a further operation had to be done. On September 10, 1952, the leg was amputated above the knee. There are no other grounds given for that amputation except the original injury. The provision in Clause 1 provides indemnity for the loss of a foot or a leg. Nowhere else in the policy is there any provision made for such a loss. Clause 2 provides for indemnity for total disability and Clause 3 provides indemnity for partial disabilty but both clauses are limited by the provision that such indemnity shall be provided only 'if such accidental bodily injury shall not result in a loss provided in Clause 1.' It is only when total disability develops from an injury not included in the specified losses enumerated in Clause 1, and when both feet or both legs or the sight of both eyes are lost as provided in Clause 1, that indemnity is provided for total disability under Clause 2.
The appellant argues that an insurance policy, if construed according to the intention of the parties, it must be held to mean that the greatest indemnity is applicable to the greatest loss. He claims that, therefore, the plaintiff, if he proves total disability in addition to the loss of a leg, the policy should be construed to allow him indemnity under Clause 2. He cites ...
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