Crawford v. Mid-America Ins. Co., MID-AMERICA

• Citation: 488 S.W.2d 255
• Decision Date: 04 December 1972
• Docket Number: MID-AMERICA,No. 25911,25911
• Parties: Roland CRAWFORD, pro ami, Appellant, v.INSURANCE COMPANY, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 255

488 S.W.2d 255

Roland CRAWFORD, pro ami, Appellant, v. MID-AMERICA INSURANCE COMPANY, Respondent.

No. 25911.

Missouri Court of Appeals, Kansas City District.

Dec. 4, 1972.

P. M. Marr, Milan, and Eugene E. Andereck and Terry M. Evans, Trenton, Pickett, Andereck, Hauck & Sharp, Trenton, of counsel, for appellant.

Joseph W. Amick, Kansas City, Jackson & Sherman, Kansas City, of counsel, for respondent.

Before SHANGLER, C.J., PRITCHARD and WASSERSTROM, JJ., and PETERS, Special Judge.

PRITCHARD, Judge.

Roland Crawford appeals from a final judgment upon a 'student accident insurance policy' which set aside a portion of the verdict of the jury allowing $218.00 penalty and $1,000.00 for attorney's fees as damages for respondent's allegedly vexatious refusal to pay the claim under the policy. Mid-America Insurance Company cross-appeals on the final judgment entered against it for $2,180.20 as damages for medical expense of Roland contending that he was not participating in an extracurricular activity under the supervision of the (school) policyholder. It is also claimed that Instruction No. 2 is in error because it did not specify the activity in which Roland was engaged at the time of his injury.

On August 14, 1969, Mid-America issued its master Scholastic Accident Insurance Policy to Putnam County R--I School District effective August 25, 1969 and terminating May 25, 1970. Under the policy Roland was insured under 'Plan Two School Time Accident Coverage.' Roland did not subscribe to the available 'Plan One 24 Hour Accident Coverage' under the school policy. Plan Two, Special Notice To Parents, provided benefits from accidental bodily injuries received by the insured and while covered under the policy and while (as here pertinent), (3) Participating in or attending school-sponsored and supervised activities, except as otherwise provided in the policy, including supervised travel to and from such activities. Attached to the 'Special Notice To Parents' was application for student coverage, and the notice had the sentence: 'See the Master Policy on File with the school for complete Details.'

In somewhat different words the insuring agreements of the master policy provided: 'If any person as a result, directly and independently of all other causes (sic), of bodily injuries caused by accidental means occurring while insured hereunder and while * * * (3) participating in extracurricular activities under the supervision of the Policyholder during a school term in which the insured person is either regularly enrolled as a student or actively employed under the supervision of the Policyholder; * * * (6) * * * For the purposes of this insurance an extracurricular activity shall be deemed to be under the supervision of the Policyholder only if the activity is directly supervised by an employee specifically designated by the Policyholder for that purpose who is physically present at the place where the activity is being conducted.'

According to Elenora Staab, benefits manager for Mid-America, whose duty it was to oversee claims (such as Roland's) and to evaluate them, the application form (Special Notice to Parents) was distributed to parents to purchase the type of coverage which is here involved. The master policy was on file with the Putnam County District, and there were students who did vary in the two or three coverages provided. Roland's parents did purchase the coverage above set forth.

The football field at Putnam R--II School ran east and west, and its east end was about 100 feet from the school buildings. Both on the north and south sides of the field were bleachers for spectators. The school system owned the land behind the bleachers, which land was grassed except for one driveway directly behind the buildings. There was no parking lot as such provided, but the cars were parked directly behind the bleachers on the grass area, being on the north and south sides, with some persons sitting in their cars to watch the game when the weather was cold. The bleachers did not extend to the full length of the football field, but were on a small area on the 50 yard line. In going to and from restrooms, refreshment stands and before the game, spectators passed through the area near where the cars were behind the bleachers. The practice field was the parking lot.

Marcus Hounsom was the High School Principal at Unionville, Missouri (the Putnam R--II School) on September 12, 1969. On that date he was attending a regularly scheduled football game of the school which was an extracurricular activity and he was authorized by the school to be a supervisor. Roland's injury occurred at half-tim of the game when student spectators and other people get up and stretch, and go to restrooms and the refreshment stand. Mr. Hounsom had, during the half-times in the past, observed children running around getting a little rowdy, and he had authority from the school board to stop them, even to put them out of the game and off the school property. At the time of Roland's injury he was at a place, in the parking area, where Mr. Hounson had authority to put him off the grounds if he felt he should be. He directly supervised the grounds where the football game was taking place, moving around over the area as he usually did. In a letter of September 18, 1969, he stated to Mir-America, "I again repeat as I stated in Paragraph 8 of the Claim Form, that the accident did happen while under the supervision of Marcus M. Hounsom." There were several hundred people present at the game, and Mr. Hounsom continued his circulation through the crowd including the area of the parking lot where Roland was injured and the bleachers on the other side. Roland was at the time in Junior High School and was about 14 years old. His injury was a broken right leg between the knee and the thigh for which he was hospitalized and treated by physicians. At the time of the injury, Mr. Hounsom was some 250 feet away from the parking lot and was not aware that Roland and his friends were playing football. There was no school rule that forbade Roland's activity, but probably, Mr. Hounsom would have stopped it if he had seen them, having done so at previous football games and having taken footballs away from boys.

As noted above the policy coverage, '(3) participating in extracurricular activities under the supervision of the policyholder * * *' is certainly more restricted or limited than in the 'Special Notice to Parents' brochure, '(3) Participating in or attending school-sponsored and supervised activities * * * .' Note also that the 'Special Notice to Parents' uses only the words 'supervised activities' while paragraph 6 of the policy requires that the activity the directly supervised by an employee specifically designated by the policyholder for that purpose who is physically present at the place where the activity is being conducted. It was testified to by Mrs. Staab that the application form (Special Notice to Parents) was distributed to parents to purchase the coverage of the policy. In such a case the modern trend of authority is that insurer will not be permitted to assert the more stringent provisions of the policy. In the pocket part of 13 Appleman, Insurance Law and Practice, Section 7534 is found this observation: 'Fortunately the courts, beginning to realize the realities of the relationship between the parties, particularly that the contract as set forth the insurance policy often is practicably unintelligible and generally never read, whereas brochures and other material given out by the insurer are read and relied upon, are now enforcing the contract expected by the insured, that is the contract set out in the brochure or prospectus.' See also Couch on Insurance 2d, Section 4:42. There are several cases from other jurisdictions than Missouri which have adopted the rationale of this observation. In Providential Life Insurance Co. v. Clem, 240 Ark. 922, 403 S.W.2d 68, the insurer circulated a 'pamphlet or application' to the students which stated, in effect, that the policy covered anyone who was killed while traveling 'to and from home and school sponsored activities, providing such travel is adult supervised.' The policy contained the provision: 'In the event that such travel is performed by more than one motor vehicle, direct and immediate supervision shall mean in addition to the above, that at least one parent or adult school employee must be physically present in such motor vehicle; * * *.' Deceased was killed while riding in the second of four cars which carried a team for a track meet. In that car there was no parent of the deceased or any 'adult school employee.' The trip was supervised by school officials, two of whom were in the fourth car. The court said, loc. cit. 403 S.W.2d 69(1): 'It is our conclusion that the trial court was correct (in directing a verdict for deceased's parents). Under Lawrence v. Providential Life Insurance Co., 238 Ark. 981, 385 S.W.2d 936, appellees had a right to rely on the wording contained in the pamphlet or application referred to previously. In that case we said: "* * * the application, the form of which was prepared by the...