Heater v. Fireman's Fund Ins. Co.

• Decision Date: 12 April 1966
• Citation: 141 N.W.2d 178,30 Wis.2d 561
• Parties: Albert H. HEATER, Appellant, v. FIREMAN'S FUND INSURANCE CO., a foreign corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 178

141 N.W.2d 178

30 Wis.2d 561

Albert H. HEATER, Appellant, v. FIREMAN'S FUND INSURANCE CO., a foreign corporation, Respondent.

Supreme Court of Wisconsin.

April 12, 1966.

Phillips, Hoffman & Phillips, Milwaukee, for appellant.

Prosser, Zimmermann & Wiedabach, Milwaukee, for respondent.

BEILFUSS, Justice.

It is apparent from the memorandum opinion filed by the trial judge that the appellant made essentially the same argument to the trial court as has been made upon appeal.

The trial court's memorandum, in part, is as follows:

'It is evident from the complaint that the total disability of the plaintiff occurred prior to the issuance of the policy in question. The mortgage security insurance amendment rider to the accident policy, a copy of which is attached to the complaint, reads as follows:

"The definition of 'Sickness' as described in the policy is amended to read:

"'Sickness' wherever used in the policy means sickness or disease causing loss covered by the policy and which loss commences while the policy is in force as to the Insured Mortgagor; provided, however, loss resulting from sickness or disease for which the Insured Mortgagor received treatment or a recommendation for treatment by a legally qualified physician or surgeon during the twelve-month period immediately prior to the effective date of coverage as to the Insured Mortgagor shall not be covered hereunder until the policy has been in force as to the Insured Mortgagor for twelve months. After the policy has been in force for twelve months as to the Insured Mortgagor loss commencing thereafter and resulting from sickness for which treatment was rendered or recommenced during the twelve-month period immediately preceding the effective date of coverage as to such Insured Mortgagor shall be covered hereunder.'

'The claim of total disability is attributable to sickness covered under the primary policy related solely to 'sickness contracted and commencing after the effective date of this policy and resulting in loss covered by this policy.'

'It is contended by the plaintiff that the mortgage security insurance amendment rider, referred to above, broadens the concept of the term 'sickness' as set forth in the primary policy so as to include not only sickness which occurs subsequent to the issuance of the policy but also such illness as occurred prior to the issuance of the policy and continued on during the life of the policy.

'The plaintiff contends that the term 'loss' is...