Cordes v. Prudential Ins. Co. of America

• Decision Date: 26 May 1967
• Docket Number: No. 36496,36496
• Citation: Cordes v. Prudential Ins. Co. of America, 150 N.W.2d 905, 181 Neb. 794 (Neb. 1967)
• Parties: LeRoy H. CORDES, Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.
• Court: Nebraska Supreme Court

Page 905

150 N.W.2d 905

181 Neb. 794

LeRoy H. CORDES, Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.

No. 36496.

Supreme Court of Nebraska.

May 26, 1967.

Syllabus by the Court

1. Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in plain, ordinary, and popular sense.

2. In construing an insurance contract, the court must give effect to the instrument as a whole, and if possible, to every part thereof.

3. Where the language is plain and unambiguous, the court will not read an ambiguity into plain language in order to construe it against the one who prepared the contract.

4. The construction of a written contract is ordinarily a question of law for the court.

H. E. Hurt, Jr., Scribner, for appellant.

Young, Holm, McEachen & Hamann, Vard R. Johnson, Omaha, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ., and MURPHY, District Judge.

McCOWN, Justice.

This was an action at law to recover medical expense benefits under a policy of insurance. A motion for summary judgment for the defendant insurance company was sustained and the plaintiff has appealed.

On August 15, 1964, the defendant Prudential Insurance Company of America issued to the plaintiff LeRoy H. Cordes, a policy of insurance providing life insurance benefits for the plaintiff, accidental death and dismemberment benefits for the plaintiff, nonoccupational vehicle accidental death benefits for the plaintiff, and extended medical benefits for plaintiff and plaintiff's covered dependents as defined in the policy.

Roger Cordes was the son of plaintiff, 20 years old and unmarried, and dependent upon his father for support and maintenance. On June 6, 1964, Roger Cordes became ill and from June 9 to 12, and from June 15 to 21, 1964, was hospitalized for diagnostic purposes. The diagnosis made was seminoma of testes with metastic lesions to the neck (a more particularized expression for carcinoma of the tests, metastic, which is a form of cancer). On various dates from June 8 through June 21, charges were incurred for examinations and biopsies upon Roger Cordes. From June 22, 1964, to August 12, 1964, excepting weekends, Roger Cordes was treated with telecobalt therapy treatments and charges were incurred for these services. On or about September 15, 1964, Roger Cordes was admitted as a patient in Dodge County Community Hospital with his condition diagnosed as carcinoma of testes, metastic, and later hospitalized at Nebraska Methodist Hospital in Omaha for the same condition. Roger Cordes died January 4, 1965. Medical expenses were also incurred during the period September 15, 1964, to the date of his death and these medical expenses incurred were all for the same illness.

The plaintiff's claim was for a portion of the medical expenses he had incurred for the illness of Roger Cordes. The defendant asserted three defenses, but moved for summary judgment only on the second defense. The second defense was based on what might be termed a 90-day preexisting condition limitation or exclusion.

The particular portions of the contract directly involved are those under Part EM, Extended Medical Expense Benefits. The first paragraph of Part EM provides: 'The benefits of this Part EM are payable with respect to service and supply charges incurred for medical care and treatment of the Insured or a covered dependent deemed necessary by a licensed physician, in accordance with the following provisions of this Part EM and the applicable provisions of this Policy pertaining to claims.'

Section F of Part EM is headed 'Eligible Charges.' The first 11 numbered paragraphs of section F describe various kinds of medical services and supply charges.

Paragraph (12) of section F provides: 'Charge limitations for certain illnesses: The extent to which charges are included above is limited as follows--

'(a) Charges incurred in connection with mental illnesses or functional nervous disorders or any type or cause of a person will be included only to the following extent--* * *.

'(b) Charges incurred in connection with pregnancy including resulting childbirth, abortion or miscarriage...