Ginsburg v. Insurance Company of North America

• Decision Date: 05 June 1970
• Docket Number: No. 19966.,19966.
• Citation: 427 F.2d 1318
• Parties: Mrs. Billie Cox GINSBURG, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

427 F.2d 1318 (1970)

Mrs. Billie Cox GINSBURG, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.

No. 19966.

United States Court of Appeals, Sixth Circuit.

June 5, 1970.

Thomas J. Roberts, Middlesboro, Ky., for plaintiff-appellant; Denham, Ralston & Nagle, Middlesboro, Ky., on the brief.

Robert L. Milby, London, Ky., for defendant-appellee; Hamm, Taylor, Milby & Farmer, London, Ky., on the brief.

Before McCREE, and COMBS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McCREE, Circuit Judge.

Mrs. Billie Cox Ginsburg was injured in an automobile accident on February 6, 1966. After the accident, she was hospitalized several times and did not return to her job as a nurse-anesthetist. At the time of the accident she was insured under a policy obtained through the American Association of Nurse Anesthetists from defendant-appellee. Insurance Company of North America (INA). Following the accident, Mrs. Ginsburg brought an action against INA in the Bell County, Kentucky Circuit Court under Coverage B of the policy. She claimed that she suffered both "continuous total disability" and "permanent and total disability" as defined in the policy, which reads in pertinent part:

Coverage B — Permanent Total Disability: After one year of "continuous total disability", and if the insured is then "permanently and totally disabled" the Company will pay a Permanent Total Disability Benefit equal to the difference between the Principal Sum and any payments made under Coverage A on account of such injuries. The parties agree that Mrs. Ginsburg is not entitled to nor did she receive any payments under Coverage A.

"Continuous total disability", which must result from such injuries and commence within 30 days after the date of the accident, means the Insured\'s complete inability during the first year thereof to perform every duty of his occupation.

"Permanently and totally disabled", means the Insured\'s complete inability, after one year of total disability as defined above, to engage in an occupation or employment for which the Insured is fitted by reason of education, training or experience for the remainder of his life.

The case was removed from the state court to the United States District Court and tried before a jury. Mrs. Ginsburg was awarded a verdict of $100,000, the full amount of the policy. However, the District Judge, on motion of the defendant, directed the entry of judgment for INA notwithstanding the verdict. From this final order Mrs. Ginsburg appeals. We reverse the judgment of the District Court and order the verdict of the jury reinstated.

The District Judge granted defendant's motion for judgment n. o. v. on the grounds that there was insufficient evidence before the jury to support its verdict on both the issues of continuous total disability and permanent and total disability. We hold that this conclusion is erroneous. Mrs. Ginsburg introduced medical testimony that she had received severe back injuries in the accident, and that such injuries prevented her from performing the duties of a nurse-anesthetist not only for the year following the accident but also permanently. There was, in addition, testimony casting this conclusion into doubt, including evidence that she had previously suffered similar injuries, and that her disability may have resulted from these non-insured injuries. But the resolution of factual conflicts in the testimony, and the drawing of inferences from conflicting medical testimony were obviously matters for the jury. Clearly appellant had presented sufficient evidence to raise an issue of fact. Cf. Rudder v. Ohio State Life Ins. Co., 389 S.W.2d 448, 449-450 (Ky.1965).

In support of the judgment n. o. v., appellee further contends that plaintiff did not prove that she was unable to perform "every duty of her occupation." Appellee's contention is that since there were some tasks a nurse-anesthetist must perform which appellant could admittedly perform, then she was not disabled under the terms of the policy. We think that this contention strains both the policy language and common sense. We believe that the proper construction is that she may recover if she is unable to perform the duties substantially required for her to obtain employment as a nurse-anesthetist. There was testimony, which the jury apparently credited, that Mrs. Ginsburg could not intubate patients, i. e., administer anesthetics through tubes, and that intubation was one of the tasks every nurse-anesthetist must perform. Since there was at least one essential task which appellant could not perform, she could not perform "every duty." Obviously, this disability might well prevent anyone from hiring her as a nurse-anesthetist, and that is precisely one of the things against which the policy insured her. Accordingly, we hold that there was evidence to support the jury's verdict that Mrs. Ginsburg suffered from continuous total disability for the year following her accident as a result of injuries she sustained therein.

The portion of Coverage B which protected appellant against "permanent and total disability" presents another question. Under Kentucky law, which governs in this diversity case, that portion of the policy is considered as "nonoccupational". Mutual Life Ins. Co. of New York v. Bryant, 296 Ky. 815, 177 S.W.2d 588 (1943). According to the Kentucky Court of Appeals, "in such contracts (nonoccupational) the insured should be...