Daniel v. Allstate Life Ins. Co.

• Decision Date: 13 August 1979
• Citation: 419 N.Y.S.2d 662,71 A.D.2d 872
• Parties: Charles DANIEL, Jr., Respondent, v. ALLSTATE LIFE INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 662

419 N.Y.S.2d 662

71 A.D.2d 872

Charles DANIEL, Jr., Respondent, v. ALLSTATE LIFE INSURANCE COMPANY, Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 13, 1979.

Beasley & Andes, Riverhead (William Beasley, Jr., Riverhead, of counsel), for respondent.

Cordes, Purcell, Fritz & Ingrao, P.C., Mineola (John F. Cordes, Jr., Mineola, of counsel), for appellant.

Before HOPKINS, J. P., and DAMIANI, TITONE and MARGETT, JJ.

MEMORANDUM BY THE COURT.

In an action by an insured to recover the proceeds of an accident insurance policy, the defendant insurer appeals from a judgment of the Supreme Court, Suffolk County, entered September 22, 1978, which was in favor of the plaintiff in the principal sum of $20,000, after a nonjury trial.

Judgment reversed, on the law and the facts, without costs or disbursements, and complaint dismissed.

In this case the plaintiff had a policy of life and accident insurance with the defendant, Allstate Life Insurance Company, which provided, Inter alia, that if the insured sustained an "injury" while occupying a private passenger automobile, Allstate would pay certain benefits based upon a schedule of insurance. The schedule required Allstate to pay the $20,000 principal sum of the policy if the assured lost the sight of both eyes in an accident covered by the policy. So far as relevant here, "injury" was defined by the policy as "bodily injury caused by an accident occurring while the insurance is in force and which injury results * * * directly and independently of all other causes". With reference to the loss of an eye the policy definition required the "total and irrecoverable loss of entire sight".

Plaintiff was involved in an automobile accident and made a claim to defendant for payment of the principal sum of the policy based upon the representation that he had lost the sight of both eyes as a result of the accident. The defendant declined coverage and plaintiff sued.

At the trial plaintiff had the burden of proving that his alleged injury was covered by the terms of the accident policy (see 30 N.Y.Jur., Insurance, § 1096, p. 481, Plotkin v. Disability and Cas Inter-Ins Exch., 27 A.D.2d 719, 720, 277 N.Y.S.2d 464). Specifically it was incumbent upon plaintiff to show that (1) there was an actual total loss of sight of both eyes, (2) the loss of sight was irrecoverable, (3) the loss was sustained due to an accident occurring while he was the occupant of a private passenger automobile and (4) the loss was due to the accident directly and independently of all other causes. Defendant concedes the happening of the accident but contests (1) the alleged loss of sight, (2) that if such loss occurred it is irrecoverable and (3) that it was due to the accident only, independent of any other cause. Since the defendant does not contend that the alleged loss fell into any of the policy limitations, or exclusions, it bore no burden of proof in this case (cf. 30 N.Y.Jur., Insurance, § 1096, p. 481; Cohen v. National Cas. Co., 275 App.Div. 1062, 92 N.Y.S.2d 438).

It is our opinion that the plaintiff failed to prove his case by a preponderance of the credible evidence. The plaintiff attempted to establish that although he suffered no physical or organic damage to any part of his optic system, he lost his sight due to an unconscious mental process known as hysterical neurosis with conversion reaction. The defense adduced strong proof in the form of the testimony of several of plaintiff's neighbors, his pastor, and his...