Coxen v. Western Empire Life Ins. Co.

• Court: Colorado Supreme Court
• Writing for the Court: GROVES
• Citation: Coxen v. Western Empire Life Ins. Co., 452 P.2d 16, 168 Colo. 444 (Colo. 1969)
• Decision Date: 24 March 1969
• Docket Number: No. 22492,22492
• Parties: Thelma COXEN, Executrix of the Estate of Calvin Coxen, Deceased, Plaintiff in Error. v. WESTERN EMPIRE LIFE INSURANCE COMPANY, a Colorado corporation, and Jefferson County Bank of Lakewood, Colorado, a Colorado banking corporation, Defendants in Error.

Page 16

452 P.2d 16

168 Colo. 444

Thelma COXEN, Executrix of the Estate of Calvin Coxen Deceased, Plaintiff in Error. v. WESTERN EMPIRE LIFE INSURANCE COMPANY, a Colorado corporation, and Jefferson County Bank of Lakewood, Colorado, a Colorado banking corporation, Defendants in Error.

No. 22492.

Supreme Court of Colorado, In Department.

March 24, 1969.

Rehearing Denied April 14, 1969.

George J. Robinson, William H. Robinson, III, Lakewood, for plaintiff in error.

Morris Rutland, Denver, for defendant in error Western Empire Life Ins. Co.

GROVES, Justice.

This was an action brought by Thelma Coxen, executrix of the estate of Calvin Coxen, deceased, (herein called the executrix) against Western Empire Life Insurance Company (herein called the company) to recover the proceeds of a credit life insurance policy in the amount of $4275 issued on the life of the decedent in connection with a loan made by the defendant in error bank. It was stipulated between the parties that the executrix might pay the loan in full and be subordinated to the bank's rights under the policy; and accordingly, she paid the loan.

It was also stipulated that the decedent died as a result of heart disease which had commenced prior to the issuance of the policy; that no statement as to a condition or disease originating prior to the issuance of the policy was asked of or given by the insured or any other person prior to issuance of the policy; that the court as a matter of law was to determine the sole issue presented solely from the provisions of the policy; and that, if the executrix is entitled to recover, the amount recoverable is $4232.25 plus interest thereon from July 16, 1965, together with costs. The issue was whether the pre-existing disease was a defense to the action under the following provision of the policy:

'In consideration of the above premium, paid in advance, the company hereby insures the above named insured subject to the provisions and limitations herein contained * * * against loss of life and/or against disability caused by disease originating or injury sustained during the term of this policy.'

The question presented is whether 'disease originating or injury sustained during the term of this policy' relates to 'loss of life' as well as to 'disability.' The trial court answered this in the affirmative and denied relief.

Webster's New International Dictionary 99 (2nd ed. 1958) defines 'and/or' as either 'and' or 'or.' If it is to be construed as meaning 'and' in this situation, then, as the executrix believes, the phrase 'during the term of this policy' relates only to 'disability.' If 'and/or' is to be given the meaning of 'or,' the phrase 'during the term of this policy' modifies 'loss of life' as well as 'disability,' and the company prevails.

We approach this matter with the following basic propositions: (1) the clause is patently ambiguous; (2) under the stipulation one cannot look beyond the policy to ascertain intent; and (3) in case of an ambiguity, the matter is to be construed most strongly against the insurer. Equitable Life Assurance Society v. Hemenover, 100 Colo. 231, 67 P.2d 80, 100 A.L.R. 1270.

The trial court reached its determination principally by reason of another provision of the policy which reads as follows:

'No claim for loss incurred or disability, as defined in the policy, commencing after two years from the date of issue...