Hopkins v. North American Co. for Life and Health Ins., s. 10940

• Court: Missouri Court of Appeals
• Writing for the Court: MAUS; FLANIGAN
• Citation: Hopkins v. North American Co. for Life and Health Ins., 594 S.W.2d 310 (Mo. App. 1980)
• Decision Date: 14 January 1980
• Docket Number: Nos. 10940,10947,s. 10940
• Parties: Charles K. HOPKINS, Plaintiff-Respondent-Appellant, v. NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE, Defendant-Appellant-Respondent.

Page 310

594 S.W.2d 310

Charles K. HOPKINS, Plaintiff-Respondent-Appellant, v. NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE Defendant-Appellant-Respondent.

Nos. 10940, 10947.

Missouri Court of Appeals, Southern District, En Banc.

Jan. 14, 1980.

Motion for Rehearing and for Transfer Denied Feb. 6, 1980.

Harold L. Henry, Henry, Henry & Henry, West Plains, for plaintiff-respondent-appellant.

Kenneth A. Wagoner, Moore & Brill, West Plains, for defendant-appellant-respondent.

MAUS, Judge.

By his petition the plaintiff sought a judgment for accrued monthly installments allegedly due under a disability insurance policy, interest, a statutory penalty for vexatious delay and attorney's fees. The jury returned a verdict in favor of the plaintiff for all items for which recovery was sought. Upon hearing the defendant's motion for a new trial, the circuit court sustained the defendant's motion for a directed verdict filed at the close of all the evidence as to the recovery of the penalty, attorney's fees and interest and entered a judgment for the defendant for those items. As to all other matters, the motion for a new trial was overruled. Each party appealed. Since submission the appeals have been consolidated for decision and opinion. The defendant's first point is that the plaintiff did not make a submissible case that he was totally disabled from engaging in his "regular occupation". This point is based upon the assertion that at the time of disability the plaintiff's regular occupation was not, as he contended, as an over-the-road truck driver, but supervising his A & W franchise and farming and that he was not disabled from either of those occupations. A review of the evidence is required.

The policy was issued March 17, 1971. It basically provided that during a period of total disability the defendant would pay the designated monthly indemnity. In the definition section of the policy, as amended by a rider, total disability was defined:

" 'Total Disability' means the complete inability of the Insured due to injury or sickness to engage in his regular occupation until Monthly Indemnity has been payable under the policy during any period of disability for 84 months or for the period for which Monthly Indemnity is payable, if less. After Monthly Indemnity has been payable under the policy during any period of disability due to injury or sickness for 84 months, then during the remainder, if any, of the period for which Monthly Indemnity is payable, 'total disability' means the complete inability of the Insured due to injury or sickness, as the case may be, to engage in any and every gainful occupation for which he is reasonably fitted by education, training or experience, with due regard to prior economic status."

Significantly, the only change made by the rider from the policy as originally printed was to change the words "his occupation" to "his regular occupation".

In general the policy is guaranteed renewable at the stipulated premium to age 65 years. It provides that after the age of 65 years "so long as the insured is actively engaged in a full-time occupation" the insured may continue the policy in force by paying the premiums at the rates then in force. In reference to recurrence of total disability, the policy provides if there is a recurrence of total disability from the same or related cause, the second period will be deemed continuous with the first, "unless between the two periods the insured has performed all the duties of a gainful occupation on a full-time basis for at least six consecutive months." There is no provision prohibiting or providing a different premium upon a change of occupation. In the application, which is made a part of the policy, plaintiff's occupation is given as "long-haul truck driver" and his employer as Gordon's Trans. Co.

The plaintiff was born May 28, 1928. He commenced driving a truck on July 5, 1953. He worked as "an over-the-road" driver for several companies, and for Gordon's Transport of Memphis, Tennessee, from April 7, 1959, to the time in question. The plaintiff was a native of the West Plains area. He moved back to that area in 1973, although he kept a house trailer in Memphis. While it is not entirely clear, he apparently moved the house trailer to the West Plains area sometime shortly before June, 1976. He had owned a farm in that area since about 1966 and ran some cattle on that farm.

About May 28, 1976, the plaintiff took a vacation which was to end June 12, 1976. During that time he was suffering from gout, and he was, as he said, "run down and overworked." About June 12, he called Claude Wallace Bond, Director of Line Drivers for Gordon's and told him that he was going to take some sick leave and after three weeks or three months or whatever time it would take he would come down and either resign or go to work. In the meantime, on June 2, 1976, the plaintiff purchased the A & W franchise in West Plains, as he put it, "for my son to run." The son had been recently discharged from the service. The plans were that the son would operate and manage the business, his wife would keep the books and the plaintiff and his wife would own the business. He intended to continue driving for the next two years so that at the age of 50 he could have taken early retirement. There was evidence that he intended to seek work in driving in the West Plains area. The plaintiff repeatedly testified that he did not then intend to quit driving and that his "main line of business" and his "regular occupation" was truck driving. However, commencing June 2 and continuing until its sale in 1977, the plaintiff did on a daily basis supervise the son's management of the franchise.

In late August or September, 1976, something suddenly happened to his right eye. It got worse and reached the place where he could hardly see, everything was distorted. He consulted an optometrist and physician in West Plains. The latter referred him to an ophthalmologist in Springfield, who examined the plaintiff on October 16 and again on October 28, 1976. His diagnosis was that from an unknown etiology the plaintiff had suffered an occlusion of a vein in the retina of the right eye, resulting in vision in that eye of 20/400 according to the Snellen Visual Acuity Chart. This was approximately a 96.7% loss of vision in that eye. It is a permanent, untreatable uncorrectable condition. The ophthalmologist in his deposition stated that the plaintiff would not be totally disabled from engaging in owning and supervising an A & W franchise and farming; he would be totally disabled from a job which required him to have at least 20/40 vision in both eyes.

The plaintiff testified that as a result of the loss of vision he could no longer meet the physical requirements as a truck driver as required by his company. The circuit court took judicial notice of The Federal Motor Carrier Safety Regulations which includes a requirement that a driver must have "distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses".

The deposition of Bond, taken upon the instance of the defendant, was offered in evidence by the defendant. Bond testified concerning the employment history of the plaintiff. He confirmed the vacation scheduled to end June 12, 1976. He also stated that on or about June 12, 1976, the plaintiff called and said that he was going to take three weeks sick leave and would then be down to resign. When he did not do so, Bond tried to locate the plaintiff by telephone at Mammoth Springs, where the plaintiff said he would be located. After such attempts were unsuccessful, on October 11, 1976, Bond determined to terminate the plaintiff and wrote him a letter. This letter recited Bond's version of the telephone conversation of June 12, 1976, and stated that Gordon's "is accepting your resignation given to me over the phone in June of 1976 and your name is being removed from the seniority list effective this date." Plaintiff's name was removed from the board on October 11, 1976. Bond could not recall any conversations with the plaintiff other than the one he related on June 12.

The plaintiff had, on re-direct, produced telephone bills which he stated showed calls to Gordon's on July 19, October 19 and November 3, 1976. He did not directly identify the subject matter of the July 19 call, but apparently it was to give Bond a current address and phone number. The October 19, 1976, call was made the day plaintiff received Bond's letter and plaintiff told Bond about his eye condition and that he would give him a report just as soon as he made the second visit. On November 3, he apparently told Bond that his condition was permanent and he could never pass an ICC physical again, although this was excluded by the circuit court.

Cases dealing with recovery upon disability insurance policies are legion. Because of the differences in terminology of the insuring clauses declaring the disability insured against, the cases are difficult to categorize for the purpose of precedent. See 21 A.L.R.3d 1155. However, there are two well-defined categories of insuring clauses which are sufficient to recognize for the decision of this case. 44 Am.Jur.2d, Insurance, § 1607. The first is a general disability clause which essentially insures against disability to engage in any occupation. Generally speaking there are three views concerning the construction of such a clause. 44 Am.Jur.2d, Insurance, § 1609. The intermediate view, apparently adopted by Missouri, is that the test for recovery is the inability of the insured "to perform, in the usual and customary way, substantially all of the material acts of any occupation which his age, training, experience, education and physical condition would fit him for except for the infirmity." Stout v. Central National Life Insurance Company, 522 S.W.2d 124, 129 (Mo.App...