Duke v. Mutual Life Ins. Co. of New York

• Decision Date: 17 July 1974
• Docket Number: No. 7410SC393,7410SC393
• Parties: Raymond L. DUKE v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK (a New York corporation).
• Court: North Carolina Court of Appeals

Page 796

206 S.E.2d 796

22 N.C.App. 392

Raymond L. DUKE v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK (a New York corporation).

No. 7410SC393.

Court of Appeals of North Carolina.

July 17, 1974.

Dixon & Hunt, by Daniel R. Dixon, and Blanchard, Tucker, Denson & Cline, by Charles F. Blanchard, Raleigh, for plaintiff appellant.

Smith, Anderson, Blount & Mitchell, by Michael E. Weddington and James D. Blount, Jr., Raleigh, for defendant appellee.

BALEY, Judge.

Plaintiff contends that the trial court erred in submitting the second issue to the jury. He argues that he should not have been required to continue seeing Dr. Harer after October 1969, since his knee condition had stabilized by that time and further medical treatment would not have been of benefit to him. Defendant does not contend that plaintiff could have benefitted from further treatment, but simply argues that under the express terms of the policy plaintiff was required to continue to be under the regular care of a doctor as long as he received benefits.

North Carolina law recognizes the rule that insurance contracts are construed in favor of the insured and against the insurer. There are two reasons for this rule. First, insurance policies are drafted by the insurance company. "Its attorneys, officers or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the Court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself." Jolley v. Insurance Co., 199 N.C. 269, 271, 154 S.E. 400, 401; accord, White v. Mote, 270 N.C. 544, 155 S.E.2d 75; Electric Co. v. Insurance Co., 229 N.C. 518, 50 S.E.2d 295; Underwood v. Ins. Co., 185 N.C. 538, 117 S.E. 790. Second, insurance contracts ordinarily are contracts of adhesion. "They are unipartite. They are in the form of receipts from insurers to the insured, embodying covenants to compensate for losses described. They are signed by the insurer only. In general, the insured never sees the policy until after he contracts and pays his premium, and he then most frequently receives it from a distance, when it is too late for him to obtain explanations or modifications of the policy sent him. . . . Out of these circumstances the principle has grown up in the courts that these policies must be construed liberally in respect to the persons insured, and strictly with respect to the insurance company." Barker v. Insurance Co., 241 N.C. 397, 400, 85 S.E.2d 305, 307; see Glenn v. Insurance Co., 220 N.C. 672, 18 S.E.2d 113; Duke v. Assurance Corp., 212 N.C. 682, 194 S.E. 91; Thompson v. Accident Association, 209 N.C. 678, 184 S.E. 695.

The courts of North Carolina have not had occasion to determine whether a clause in an insurance policy requiring regular medical treatment is applicable when such treatment would not improve the insured's condition. A large number of courts in other jurisdictions, however, have dealt with this problem. See Annot., 84 A.L.R.2d 375 (1962). Five states hold that the provision must be construed literally and the insured must visit a doctor regularly, regardless of whether he derives any benefit from such visits. Equitable Life Assurance Soc'y v. Burns, 254 Ky. 487, 71 S.W.2d 1009 (1934); Bruzas v. Peerless Cas. Co., 111 Me. 308, 89 A. 199 (1913); Lustenberger v. Boston Cas. Co., 300 Mass. 130, 14 N.E.2d 148 (1938); Benefit Ass'n of Ry. Employees v. Cason, 346 S.W.2d 670 (Tex.Civ.App.1961); Mills v. Inter-Ocean Cas. Co., 127 W.Va. 400, 33 S.E.2d 90 (1945). But see Shaw v. Commercial Ins. Co., 359 Mass. 601, ---, 270 N.E.2d 817, 822 (1971). (The case of Isaacson v. Wisconsin Cas. Ass'n, 187 Wis. 25, 203 N.W. 918 (1925), cited by defendant, does not deal with a situation in which the insured's condition has stabilized so that he cannot benefit from further treatment.)

Thirteen jurisdictions hold that the provision requiring regular medical treatment applies only when regular medical treatment can benefit the insured. Sullivan v. North Am. Accident Ins. Co., 150 A.2d 467 (D.C.Mun.App.1959); Reserve Life Ins. Co. v. Poole, 99 Ga.App. 83, 107 S.E.2d 887 (1959); Penrose v. Commercial Travelers Ins. Co., 75 Idaho 524, 275 P.2d 969 (1954); Commercial Cas. Ins. Co. v. Campfield, 243 Ill.App. 453 (1927); Brown v. Continental Cas. Co., 209 Kan. 632, 498 P.2d 26 (1972); Mathews v. Louisiana Indus. Life Ins. Co., 11 So.2d 80 (La.App.1942); World Ins. Co. v. McKenzie, 212 Miss. 809, 55 So.2d 462 (1951); Davidson v. First Am. Ins. Co., 129 Neb. 184, 261 N.W. 144 (1935); Yager v. American Life Ins. Ass'n, 44 N.J.Super. 575, 131 A.2d 312 (1957); Hunter v. Federal Cas. Co., 199 App.Div. 223, 191 N.Y.S. 474 (1921); National Life Ins. Co. v. Patrick, 28 Ohio App. 267, 162 N.E. 680 (1927); Massachusetts Bonding & Ins. Co. v. Springston, 283 P.2d 819 (Okl.1955); Music v. United Ins. Co. of America, 59 Wash.2d 765, 370 P.2d 603 (1962). The Missouri cases are in conflict. Compare Mutual Benefit Health & Accident Ass'n v. Cohen, 194 F.2d 232 (8th Cir.), cert. denied, 343 U.S. 965, 72 S.Ct. 1059, 96 L.Ed. 1362 (1952) (applying Missouri law), And Prudence Life Ins. Co. v. Hoppe, 49 Tenn.App. 151, 352 S.W.2d 244 (1961) (applying Missouri law), with Boillot v. Income Guar. Co., 231 Mo.App. 990, 83 S.W.2d 219 (1935).

It is clear that the majority rule is the better reasoned one, and more in line with the principles followed by the North Carolina courts in interpreting insurance contracts. The purposes of a clause requiring regular medical treatment are to protect the insurer against fraudulent disability claims submitted by healthy policyholders, and to compel a disabled claimant to minimize his damages by consulting a physician and regaining his health as quickly as possible. Neither of these purposes is served by requiring the insured to visit a doctor regularly when the doctor cannot help him. It would be entirely futile for the insured to see a doctor under those circumstances, and the courts are reluctant to require the performance of futile acts. As the Illinois court stated in the Campfield case, supra at 456: '(W)e are at a loss to understand why it should be necessary (for the insured) to do such a useless thing as to...