Continental Cas. Co. v. Davidson
| Decision Date | 01 March 1971 |
| Docket Number | No. 5--5475,5--5475 |
| Citation | 463 S.W.2d 652,250 Ark. 35 |
| Parties | CONTINENTAL CASUALTY COMPANY, Appellant, v. Robert H. DAVIDSON, Appellee. |
| Court | Arkansas Supreme Court |
Rose, Barron, Nash, Williamson, Carroll & Clay, Little Rock, for appellant.
McMath, Leatherman, & Woods, Little Rock, for appellee.
Appellant asserts that the circuit court's instructions defining total disability were erroneous, in the light of the policy on which appellee sued. We find reversible error in that regard.
A review of the evidence would serve no useful purpose. It is sufficient to say that there was evidence sufficient to support a finding of total disability whether the court's definition or appellant's is used. The pertinent policy provision is as follows:
TOTAL DISABILITY. When, as the result of injury and commencing within thirty days after the date of the accident, the Insured is wholly and continuously disabled and prevented from performing each and every duty pertaining to his occupation, the Company will pay periodically the Monthly Indemnity stated in the Schedule for the period the Insured is so disabled, not to exceed twelve consecutive months. Subject to the 'Maximum Period Total Disability Accident Indemnity' stated in the Schedule and after the payment of Monthly Indemnity for twelve months as aforesaid, the Company will continue the periodic payment of Monthly Indemnity so long as the Insured is wholly and continuously disabled and prevented by reason of said injury from engaging in each and every occupation of employment for wage or profit for which he is reasonably qualified by reason of education, training or experience.
It is conceded that appellant paid total disability benefits to appellee for more than 12 months prior to September 17, 1968. Appellee then sued for benefits from that date until the date of trial and recovered judgment for these payments at the policy rate of $100 per month with statutory penalty and attorney's fees. As one of its defenses appellant denied that appellee was permanently disabled so that in the future he would be unable to return to his former employment or engage in any occupation for wages or profit.
The circuit judge gave only the following instruction defining total disability:
You are instructed that the provisions of the policy which I have quoted relating to disability do not mean a state of absolute helplessness. But they mean that, if there was any substantial and material acts necessary to be done pertaining to his occupation that he could not perform in the usual and customary. not perform in the usual and customary the meaning of this policy.
Appellant objected because the instruction would preclude the jury from considering appellee's ability to engage in any occupation for which he was reasonably qualified by reason of education, training and experience, other than his previous occupation.
Appellant offered, and the court refused, the following instructions pertaining to total disability:
The term 'total disability,' as contemplated by an accident insurance policy such as the one sued on in this case does not mean what a literal reading would require, that is, a state of absolute helplessness, but rather contemplates such a disability as renders the insured unable to perform all the substantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which the insured is reasonably (R. 94) qualified by reason of his education, training and experience.
You are instructed that even though you believe from the evidence in this case that the plaintiff is and has been unable to return to his former occupation with the Missouri Pacific Railroad, yet if you further believe from the evidence that the plaintiff has not been prevented as a result of his injury from performing all the substantial and material acts necessary to the prosecution, in a customary manner, of any occupation or business for which he is reasonably qualified by reason of his education, training or experience, then the Court instructs you that the plaintiff would not be entitled to the benefits for which he is suing, and your verdict should be for the defendant.
Appellant concedes that the instruction given by the court would be correct were it not for the fact that total disability benefits are payable under two different conditions, i.e.: (1) benefits for a maximum of 12 months while the insured was totally disabled from performing any substantial and material duties of his former occupation; and (2) benefits thereafter so long as the insured is disabled from performing the material duties of any occupation for which he is reasonably qualified by reason of education, training and experience. We agree with appellant that all our previous cases, save one, have dealt with policies that were substantially similar, but which did not have two separate and distinct categories for payment of disability benefits. While the one exception involved only the question of liability for total disability in the usual sense, it was clearly recognized there that different considerations might have been involved had liability in the second category set out above been in issue. See Franklin Life Insurance Company v. Burgess, 219 Ark. 834, 245 S.W.2d 210. Part I of the policy there involved entitled the insured to monthly benefits for a maximum of 12 months while prevented by illness or injury from performing each and every duty pertaining to his occupation. Thereafter, the payments were to be continued so long as the insured should be wholly, necessarily and continuously disabled and prevented by such injury or illness from engaging in any occupation for wages or profit. In reducing the amount of attorney's fees allowed, the court noted that we had previously approved fees in excess of the amount of recovery in similar cases where the determination of questions involved also determined the liability of the insurance company for future disability payments. We said:
It is noted that the second paragraph of Part I of the policy provides for payment of monthly indemnity after the twelve-month period provided in...
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