Gehner v. Equitable Life Assur. Soc. of U.S., 32930

• Decision Date: 21 May 1968
• Docket Number: No. 32930,32930
• Citation: 430 S.W.2d 621
• Parties: Ronald GEHNER and Janet Gehner Gardinale, Plaintiffs-Appellants, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 621

430 S.W.2d 621

Ronald GEHNER and Janet Gehner Gardinale, Plaintiffs-Appellants, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a corporation, Defendant-Respondent.

No. 32930.

St. Louis Court of Appeals, Missouri.

May 21, 1968.

Motion for Rehearing or for Transfer to Supreme Court Denied

June 27, 1968.

Schwartz, Schwartz & Gilden, St. Louis, for appellants.

Henry S. Stolar, Hocker, Goodwin & MacGreevy, St. Louis, for respondent.

TOWNSEND, Commissioner.

The defendant insurance company issued to The Linen Thread Company, Inc., its group life insurance policy affording coverage to the employees of the latter and, to evidence his interest thereunder, a certificate of insurance was issued to Elmer W. Gehner. Thereafter on August 3, 1956, Mr. Gehner suffered a stroke which caused him to become totally disabled. His employment ceased on that date. He continued totally disabled until his death on April 6, 1959 at age fifty-two. The plaintiffs, children of Elmer W. Gehner, maintain this action because of the refusal of defendant to pay them, the beneficiaries designated under the terms of the policy, the amount of insurance provided thereunder. The trial court sustained defendant's motion for judgment on the pleadings. Plaintiffs' motion to set aside the judgment and for new trial was overruled and this appeal from the judgment on the pleadings was taken.

Plaintiffs' petition pleaded the Extended Death Benefit clauses of the certificate.

By its motion for judgment on the pleadings defendant has contended that there was no insurance coverage on the life of Mr. Gehner at the time of his death, and in support of that position it has also summoned the Extended Death Benefit provision, the insuring clause, which defines and delimits the duties of the defendant. In the certificate of insurance it is recited:

'EXTENDED DEATH BENEFIT: It is provided in said policy that if due proof of the death of the Employee shall be submitted in writing to the Society within one year after the death of the Employee whose insurance thereunder shall have terminated due to termination of employment, the Society will pay to the person or persons entitled thereto under the provisions of the policy the amount of the insurance for which the Employee's life was last insured under the policy, provided due proof shall be furnished to the Society that:

1. the Employee's death occurred within thirty-one days following such termination of employment, or

2. at the date of such termination of employment the Employee was totally disabled by bodily injury or disease so as to be prevented from engaging in any occupation for compensation or profit, and that such total disability continued from such termination of employment to such death, and that such death occurred (a) within a period after such termination of employment not longer than the time the Employee's insurance thereunder had therefore been continuously in force and in any event not longer than twelve months, (b) while the policy was in full force and effect, (c) before the Employee attained the sixty-fifth anniversary of his date of birth.'

The opinion of the trial court recited: 'In the instant case the plaintiffs seek to recover under the extended death benefit of the policy involved, claiming it is ambiguous. The court has duly considered plaintiffs' contention and is unable to find any ambiguities in connection therewith. * * * The policy must be read as written, and in the Court's opinion it is plain, definite, certain, and not ambiguous. Therefore, defendant's second amended motion for judgment on the pleadings is sustained. Judgment entered for defendant.'

The contentions of the respective parties pose the question of whether the lettered clauses (a)(b) and (c) above under numeral 2 are to be read disjunctively or conjunctively. As indicated the trial court has had no difficulty with such clauses and has by its ruling found in effect that they are to be applied conjunctively.

The appellants here charge the trial court with error in finding no ambiguity in that it failed to read the provision in question as it would be read by a layman of common understanding, in the light of the entire certificate. They then charge the court with failing to distinguish between determination of the existence of an ambiguity and the resolution of ambiguity by means of construction. We reach the first of such charges only if the second is ruled adversely to appellants. Taking these complaints in inverse order, the argument runs that the determination of whether or not there is an ambiguity raises an issue of law; only if that is the issue is a motion for judgment on the pleadings appropriate. Struckhoff v. Thompson, Mo.App., 241 S.W.2d 39. On the other hand, if there is admittedly an ambiguity, then resolving that ambiguity by means of construction involves an issue of fact; if such be the situation a motion for judgment on the pleadings should not be sustained, citing Ingle v. City of Fulton, Mo.App., 268 S.W.2d 600. Assuming for the moment the validity of the distinctions made by the appellants, the question would then arise: Did the trial court, in stating that there was no ambiguity, really rule that there was no ambiguity or did it thereby merely solve a situation of doubt presented to it?

As an affirmative defence the defendant set up non-compliance with clause (a) and so tacitly claimed that compliance only with conditions (b) and (c) (plaintiffs pleaded only compliance with clause (c)) gave plaintiffs no cause of action. Although not expressly so stated defendant thereby asserted that there was no ambiguity in the conjuncture of (a) (b) and (c). That part of the judgment above quoted leaves no doubt that the appellants presented to the trial court the question of whether or not the Extended Death Benefit provision contained an ambiguity. In addition appellants' brief states: 'Respondent did not raise the question of ambiguity in its motion * * *. Appellants likewise, did not assert in their original and amended petition that ambiguity existed * * *. Only by was of opposition to Respondent's motion did Appellants assert that there was ambiguity in the provision in question and that therefore such ambiguity should be resolved in their favor and strictly against the insurer.'--There was plainly set forth for the attention of the court--and for its ruling--the problem of the existence of any doubt of the meaning of the words used in (a), (b) and (c), either because of the intrinsic meaning of any word or because of their juncture. Thus there was presented an issue of law and a motion for judgment on the pleadings was proper. The court ruled on the motion. The second of appellants' briefed points must be ruled against them.

As to appellants' first point: Did the trial court err in holding that there was no ambiguity in that part of the Extended Death Benefit provision here in question?

The contention of appellants that the extended death benefit provision is ambiguous rests upon the conjuncture of clauses (a), (b) and (c) in the final paragraph of the provision as above quoted. No connecting word joins any two of such clauses and therefore, say appellants, on its face the wording does not tell whether those three clauses are to be...