Crim v. National Life and Acc. Ins. Co., 61899.

• Court: Missouri Supreme Court
• Writing for the Court: ROBERT R. WELBORN, Special
• Citation: Crim v. National Life and Acc. Ins. Co., 605 S.W.2d 73 (Mo. 1980)
• Decision Date: 15 October 1980
• Docket Number: No. 61899.,61899.
• Parties: James R. CRIM, Respondent, v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellant.

605 S.W.2d 73

James R. CRIM, Respondent, v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellant.

No. 61899.

Supreme Court of Missouri, En Banc.

September 9, 1980.

Rehearing Denied October 15, 1980.

Guy Magruder, David M. Harding, Robert F. Redmond, III, Kansas City, for appellant.

C. Michael Fitzgerald, Warrensburg, for respondent.

ROBERT R. WELBORN, Special Judge.

Action to recover benefits payable for loss of sight under group policy of life, accident and health insurance. On stipulated facts, trial court found in favor of insured. Insurer appealed to the Missouri Court of Appeals, Western District, which, in four to three decision, affirmed judgment. The Court of Appeals transferred the case to this Court.

James R. Crim was covered by a group policy of life, accident and health insurance issued by The National Life and Accident Insurance Company, a Tennessee corporation. Accident coverage included benefit of one half (here $5,000) the principal policy sum for accidental bodily injuries resulting in the loss of "sight of one eye." "With respect to eyes, `loss' means the entire and irrecoverable loss of sight."

On September 29, 1975, Crim received an accidental injury to his right eye which required subsequent surgical removal of a traumatic cataract and of the prolapsed iris, with repair of the extensive corneal laceration and perforation. The left eye was unaffected by the accident.

Following the surgery, the unaided visual acuity of the insured was: Right Eye-2/200; Left Eye-20/20. He was provided a soft contact lens for the right eye. Wearing the corrective lens, the visual acuity of the insured was: Right Eye-20/25-1; Left Eye-20/20 (No Rx). Without the contact lens, depth perception is absent; with the lens, it is essentially normal. Neither additional surgery nor natural repair would restore prior normal vision of the right eye.

The question posed is whether or not the insured sustained, in these circumstances, "irrecoverable loss of sight" of his right eye. ("Entire * * * loss" is not in issue.) The trial court entered a general judgment for plaintiff.

Appellant's basic contention is that the insured did recover the sight in his right eye and therefore he has not suffered a loss within the clear and unambiguous language of the policy. Respondent contends that "irrecoverable loss of sight" does not entail consideration of correction of lost eyesight by the use of artificial lens. His position is that the policy language is ambiguous and therefore should be construed favorably to him.

Courts in other jurisdictions have found the language in question clear and unambiguous. In Home Life Ins. Co. of New York v. Stewart, 114 F.2d 516 (10th Cir. 1940), the language was involved in the case of an insured with 20/400 vision in both eyes, correctable to normal with artificial lenses. In finding for the insurer, the court stated (114 F.2d 518 3):

"Glasses are worn by a substantial proportion of people of all ages. Many of them have very little vision in the natural eye, but with the use of glasses their vision is substantially normal for all practical purposes. They pursue their businesses and professions with success. They meet in competition those with normal vision in the natural eye, and they are not seriously handicapped. It cannot be said that they have suffered the irrecoverable loss of sight. Here it is stipulated that for the purpose of this case, the insured has normal vision when he wears glasses. A court cannot say in a single judicial breath that he has suffered the irrecoverable loss of his sight within the meaning of the policy and at the same time that he has normal vision. The two are so diametrically in conflict that they cannot be brought into parallelism. The provision in the contract embraces the loss of sight by atrophy of the optic nerve or in some other manner which is irrecoverable, but it cannot be reasonably construed to cover a case where sight was lost but through surgery and the use of glasses normal vision is again enjoyed."

In Equitable Life Assurance Society of the United States v. Short, 332 N.E.2d 273 (Ind.App.1975), the court said:

"We hold that the word `irrecoverable' as used in the instant contract is not ambiguous. The root word `recover' has a well understood meaning, i. e., to regain, put back to a former state, or recapture. We believe the word `irrecoverable' is commonly understood to mean not able to regain, et cetera. This, we feel is the plain and ordinary meaning properly assigned to the term presently in dispute." (Id. at p. 2776)

See also Wallace v. Insurance Company of North America, 415 F.2d 542 (Sixth Cir. 1969); Smith v. Great American Life Insurance Company, 125 Ga.App. 587, 188 S.E.2d 439 (1972).

Respondent counters with cases reaching a contrary result. His principal reliance is upon Knuckles v. Metropolitan Life Ins. Co., 25 Utah 2d 319, 480 P.2d 745 (1971). In that case the court said:

"It seems to us that there is considerable merit to both of the antithetical interpretations of the language, subject of this case, not only by the parties here, but by the decisions. We think that the ease with which a policy could cover this situation with so few words, lends some substance to the concept that in case of the interpretation of language that obviously has two schools of thought, as reflected in the cases, the policy here should be construed strictly against its maker, the insurance company." 480 P.2d 748.

The court also took note of the interpretation of the term "total blindness" for purposes of workmen's compensation awards, noting that an award for total blindness had been allowed "even though substantial restoration of eyesight could be effected by the use of an optical lens." Western Contracting Corp. v. Industrial Com'n, 15 Utah 2d 208, 390 P.2d 125, 1271 (1964).

In Winegarden v. Peninsular Life Ins. Co., 363 So.2d 1172 (Fla.App.1978), the court found policies insuring against loss of sight ambiguous because they failed to state that "the measure of any such loss will be applied to corrected vision, as opposed to uncorrected vision." 363 So.2d 11733. The court resolved the ambiguity in favor of the insured.

Appellant has also cited Texas cases in support of its position: Southland Life Ins. Co. v. Dunn, 71 S.W.2d 1103 (Tex.Civ.App. 1934); Reliable Life Insurance Company v. Steptoe, 471 S.W.2d 430 (Tex.Civ.App.1971). Those cases do support appellant's position, although a more recent decision of another panel of the Court of Civil Appeals expresses approval of the Knuckles holding. Boone v. United Founders Life Ins. Co., 565 S.W.2d 380, 382-3832 (Tex.Civ.App.1978).

The logic of the holdings that vision which has been restored by the use of artificial lenses has not been irrecoverably lost is compelling. It is common knowledge that such devices are frequently employed in order to avoid loss of sight. To say that one whose sight has been so restored has lost his sight ignores reality.

The fact that vision might be recovered through medical treatment or naturally does not exclude the fact that it may also be recovered by mechanical or artificial means. The determinative term in the language here in question is the word "irrecoverable." That recovery may come about by more than one means does not make that term ambiguous. The fact that a word or phrase may be accorded a flexible meaning does not make it ambiguous. Winterton v. Van Zandt, 351 S.W.2d 696, 7001, 2 (Mo. 1961); Adams v. Covenant Security Insurance Company, 465 S.W.2d 32, 341 (Mo. App.1971).

The term "irrecoverable loss of sight" has a plain, easily understood meaning. Webster's Third New International Dictionary defines "irrecoverable" as "not capable of being recovered, regained, remedied or rectified." The synonymous cross reference is: "IRREPARABLE."

Appellant's contention that the language in question is clear and unambiguous and must be given its ordinary meaning is meritorious.

The assertion of a contrary position by respondent does not make the language ambiguous. Pierce v. Business Men's Assurance Co. of America, 333 S.W.2d 97, 1002-4 (Mo.1960); J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 2645-8 (Mo.banc 1973).

Respondent relies heavily upon Knuckles. In Knuckles, the court pointed to "* * * the irreconcilability of the cases that have interpreted such language over a long period of time * * *" and concluded that the insurer could have clarified the language by addition of such language as "`not including vision accomplished by artificial means.'" Knuckles describes the cases involving the question as "in confusion." However, it cites no case involving the language before it in which the language had been found ambiguous. Knuckles makes general reference to the annotation at 87 A.L.R.2d 481 (1963): "Fracture or loss of member, or loss of sight, contemplated by accident policy or provision insuring against specific injury." In selecting therefrom two cases as evidence of the "irreconcilability of authority," the court cited Sextet Local Mutual Aid Ass'n v. Covington, 15 S.W.2d 614 (Tex.Civ.App.1929), as favorable to the contention of the insurer. That case involved a policy which provided benefit only upon removal of the eyeball. Although the court found that language unambiguous, its relevance to consideration of the language actually involved in Knuckles is tenuous. As a contrary holding, Knuckles cites Benson v. Grand Lodge, 54 S.W. 132 (Tenn.Ch.App.1899), in which under a policy insuring against total blindness, the court held that improvement of vision by eyeglasses was not contemplated by the policy. 54 S.W. 136. Although the language with respect to eyeglasses was dictum, the case being decided on the grounds that plaintiff's evidence failed to prove his loss of sight, the language there in question was not that of the policy in Knuckles.

As above noted, Knuckles also relied upon the meaning of "total blindness" under...