Herring v. Golden State Mut. Life Ins. Co.

• Decision Date: 03 May 1982
• Docket Number: Docket Nos. 47278,51221
• Citation: 318 N.W.2d 641,114 Mich.App. 148
• Parties: Adam C. HERRING, Plaintiff-Appellee, v. GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellant. Adam C. HERRING, Plaintiff-Appellant, v. GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 641

318 N.W.2d 641

114 Mich.App. 148

Adam C. HERRING, Plaintiff-Appellee, v. GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellant.

Adam C. HERRING, Plaintiff-Appellant, v. GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.

Docket Nos. 47278, 51221.

Court of Appeals of Michigan.

Submitted April 9, 1981.

Decided March 17, 1982.

Released for Publication May 4, 1982.

Rehearing Denied May 3, 1982 in No. 47278.

Nelson S. Chase, Southfield, for plaintiff-appellee, plaintiff-appellant.

Fischer, Franklin, Ford, Simon & Hogg, Detroit (by Arthur J. LeVasseur and Edward B. Harrison, Detroit), for defendant-appellant, defendant-appellee.

Before DANHOF, C. J., and J. H. GILLIS and HOLBROOK, JJ.

HOLBROOK, Judge.

Defendant appeals as of right from a judgment that found it liable to the plaintiff pursuant to a disability contract of insurance. Plaintiff appeals from the denial of his post-judgment motion for 12 percent interest.

In 1943, plaintiff began working as an automobile mechanic while in the Army. Following his discharge, he attended a state college for four years, obtaining a degree in automobile mechanics, painting and bumping. Since 1950, plaintiff has worked as an automobile mechanic, bumper and painter, all of which involve heavy manual labor. On November 6, 1973, plaintiff sustained an injury to his back while he was removing an automobile bumper for repair.

During the year following the accident, plaintiff received various treatments including shots, pain pills, and traction. Finally, based on the results of a myelogram, plaintiff underwent surgery for a ruptured disc. After the surgery, plaintiff was told by his doctor that he could never go back to any type of work which involved heavy lifting.

On February 4, 1974, the plaintiff made a claim for benefits arising from accidental injury pursuant to a disability insurance policy issued by defendant. The defendant paid $4,800 for total disability resulting from sickness over the 12-month benefit period. The policy provides for a maximum benefit period for disability from sickness of 12 months while the maximum period for total disability due to accident is five years. Fourteen days after plaintiff received the twelfth payment from the insurance company, he commenced this action.

Following a bench trial, the court ruled that the plaintiff was totally disabled as a result of accidental bodily injury and that a ruptured disc was not within the "Exceptions and Limitations" provisions of the policy. The trial judge subtracted the $4,800 received by plaintiff from the $24,000 due and awarded a judgment of $19,200.

Defendant first asserts that the trial court erred in deciding that plaintiff was totally disabled under the terms of the insurance policy even though he was, and is, physically qualified to engage in some occupation. The question here involves interpretation of the disability provisions of the insurance policy issued by defendant.

The definition of total disability as used in the policy means "inability of the Insured, because of accidental bodily injuries, or sickness, to engage in any and every gainful occupation for which the Insured is fitted by education, training or experience". The policy language covers "any and every gainful occupation" but the words "any and every gainful occupation" are modified by the clause, and limited to those "for which the insured is fitted by education, training or experience". Thus, there is an ambiguity in the definition provision as to the meaning of "fitted".

Any ambiguities in insurance contracts are liberally construed in favor of the insured and the court's duty is to ascertain the meaning which the insured would reasonably expect. Foremost Life Ins. Co. v. Waters, 88 Mich.App. 599, 604, 278 N.W.2d 688 (1979). There exists a continuum of possible interpretations between the two obvious points at which we could say that the plaintiff is or is not totally disabled. At one extreme, total disability exists whenever the insured is unable to perform the duties of his particular occupation. At the other extreme, total disability could exist only when there is incapacity to pursue any occupation whatever. A panel of this Court in Chalmers v. Metropolitan Life Ins. Co., 86 Mich.App. 25, 31, 272 N.W.2d 188 (1978), lv. den. 406 Mich. 858 (1979), interpreted Michigan cases to follow a view between these two extremes. The Chalmers panel labeled this the intermediate view, "which regards total disability as a relative term, which rejects both of the two extreme views and which employs differing language to explain the degree of incapacity required to constitute total disability". We agree that this is the proper view to apply to the facts of this case.

There is considerable evidence of record to indicate that plaintiff is totally disabled from pursuing his former occupation of automobile mechanic, bumper and painter. The record reveals that all education, training and experience accumulated by plaintiff was geared to his preparation for the occupation he has pursued for over 20 years. It is this particular occupation for which plaintiff is fitted.

Defendant argues that although plaintiff is no longer able to do heavy manual work required of automobile mechanics and bumpers, there are many jobs that he is physically capable of doing for which he is fitted by education and experience. Defendant points to the plaintiff's employment after his injury as a teacher's aide in an auto mechanics class and as a claims adjuster for an automobile insurance company.

To hold as defendant contends would be to interpret the policy as affording very limited coverage. We believe that a reasonable expectation of coverage under this policy would not defeat this claim. The panel in Chalmers interpreted almost identical language in a similar factual situation to find that an airline pilot was totally disabled within the meaning of the language of the insurance policy.

In the present case, the trial judge said:

"Now, there is evidence before this Court that the Plaintiff has worked at certain jobs, and I suppose I have had to wrestle with the fact that they may be closely related as it contended by Defendant, but this Plaintiff has had some Army training and has had a technical school training at Savannah College in the field of automobile mechanics and painting and bumping, and it would appear that for some 21 years of his adult life and some 7 years in another job, this is all he has done, which seems very similar to this Court to the Chalmers v. Metro Life situation, where the record revealed that the Plaintiff is totally disabled from pursuing his former occupation of airplane pilot.

"Now, of course, I realize, having done some little flying with airplane pilots, not personally flying, I realize that his is a very complex occupation. But, the principle of significant education, training and experience accumulated by the Plaintiff here is the same type of a background that Chalmers had, unless one wants to say, well, if you can learn to be an auto mechanic or a bumper or a painter in a lesser period of time than you can learn to be an airplane pilot, etc., but I don't think that is quite what the Supreme Court is saying. I think the Supreme Court is saying that if all of your significant education, training and experience is geared to preparation for a particular field, I think that is the test.

"I don't feel that the Plaintiff here should be forced to sell apples or something else other than what he is trained for in order to come within the total disability provision."

Since his finding of fact was not clearly erroneous, it must be upheld. GCR 1963, 517.1, Tuttle v. Dep't of State Highways, 397 Mich. 44, 243 N.W.2d 244 (1976). We hold, therefore, that under the terms of the insurance policy plaintiff is unable to engage in any and every gainful occupation for which he is fitted by education, training or experience.

Defendant next contends that the trial court erred in determining that a ruptured disc was not a "hernia of any kind, or strained or sprained back". This controversy concerns Part B of the "Exceptions and Limitations" provision of the policy which reads in pertinent part:

"A disability shall not be considered as having resulted from accidental bodily injuries, within the meaning of BENEFIT PROVISION, Part 1, Part 2 and Part 3, if such disability is caused or contributed to by:"

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"3. Hernia of any kind, or...