Hunter v. Fireman's Fund Insurance Company

• Decision Date: 29 September 1971
• Docket Number: No. 383-70.,383-70.
• Citation: 448 F.2d 805
• Parties: Vaughn B. HUNTER, Plaintiff-Appellant, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

448 F.2d 805 (1971)

Vaughn B. HUNTER, Plaintiff-Appellant, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant-Appellee.

No. 383-70.

United States Court of Appeals, Tenth Circuit.

September 29, 1971.

Richard W. Giauque, Salt Lake City, Utah (Clifford L. Ashton, Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, on the brief), for plaintiff-appellant.

Ray R. Christensen, Salt Lake City, Utah (Christensen & Jensen, Salt Lake City, Utah, on the brief), for defendant-appellee.

Before HILL and McWILLIAMS, Circuit Judges, and BRATTON, District Judge.

McWILLIAMS, Circuit Judge.

Dr. Vaughn B. Hunter, a Salt Lake City dentist, brought an action against the Fireman's Fund Insurance Company on a policy of accident insurance issued him by the Fund, alleging that he had sustained an accidental injury within the meaning of the policy when as the result of a fall from a stool in his dental office he suffered a detached retina of the left eye with the ensuing entire loss of sight in that eye. Trial was to a jury with the trial court, after evidence had been presented by both Dr. Hunter and the Fund, directing a verdict for the Fund.

In its formal judgment the trial court did not state its reasons for entering a judgment of no cause of action in favor of the Fund and against Hunter. However, in his extended colloquy with counsel in connection with the motion for a directed verdict interposed by the Fund after all the evidence was in, the trial judge clearly indicated that in his view the evidence was legally insufficient to warrant submission to the jury in each of the following particulars: (1) Insufficient evidence that the detached retina with the resultant loss of sight in the left eye resulted from the fall from the stool and (2) insufficient evidence that Dr. Hunter had complied with the provisions of the policy regarding the giving of notice of claim and the furnishing of proof of loss.

We agree generally with the trial court that the evidence is legally insufficient as concerns Dr. Hunter's compliance with the provisions of the policy concerning the related matters of the giving of notice of claim and the furnishing of proof of loss. Being of that view, then, we need not here determine whether Dr. Hunter established prima facie that his loss of sight was caused by his fall from the stool.

Actually, as will become evident, we elect to turn our decision on the failure of Dr. Hunter to furnish proof of loss within the time prescribed by the policy. However, the provisions of the policy requiring the giving of notice of claim and the furnishing of proof of loss, though distinct and separate, are nonetheless related, and the consideration of one necessarily involves some consideration of the other. Furthermore, legal principles applicable to one frequently apply with equal force to the other. Hence, we will consider the provisions of the policy, and the evidence pertaining thereto, as such relate to both the giving of notice and the furnishing of proof of loss.

As concerns notice of claim, the policy provides that written notice of claim shall be given the Fund within twenty days after the occurrence or commencement of any loss covered by the policy or as soon thereafter as is reasonably possible. The policy then provides that written proof of loss must be furnished the Fund within 90 days after the date of loss for which claim is made. In this regard the policy goes on to provide that failure to furnish such proof within the 90 day period shall not invalidate nor reduce any claim if it was not "reasonably possible" to give proof within such time, provided such proof is thereafter furnished as soon as "reasonably possible" and in no event, except in the absence of legal capacity, later than one year from the time proof of loss is otherwise required, i. e., 90 days after date of loss. It is noted that applicable Utah statutes require the inclusion in the policy of the provisions above referred to. Utah Code Ann. (1953), 31-33-3, 8 and 10.

It is agreed that as of the date of the alleged accident there was in full force and effect an accident policy wherein Dr. Hunter was the insured and the Fund was the insurer which provided among other things for the payment to the insured of $30,000 in the event of the loss of the entire sight of one eye as a result of an accident, with the further requirement that the "loss" must occur within 120 days after the date of accident. This particular policy had been sold Dr. Hunter by one Larry Moss, a general insurance agent in Salt Lake City. Dr. Hunter for some considerable period of time had apparently been dealing with Moss for all his insurance needs, including his home and office insurance, automobile insurance, professional liability insurance, and the like. Moss placed these several policies with different insurance companies, with the accident policy here in question being placed with the Fund.

The undisputed evidence established that Dr. Hunter had been experiencing at least some degree of "eye trouble" for some time prior to the accident here in question and that about two weeks before the fall from the stool he had cataracts removed from both eyes. As concerns the accident itself, Dr. Hunter testified that on March 30, 1965, while relaxing for a moment in his dental laboratory after a tooth extraction he proposed to sit on a stool and enjoy a coke and that in so doing he somehow missed the stool and fell to the floor, striking the left side of his head. His testimony was that within a matter of an hour or so the vision in his left eye became shadowy or cloudy and that by the following day when he went to San Francisco to undergo corrective eye surgery he had no sight whatsoever in his left eye. This entire loss of sight in his left eye persisted, continuously and uninterruptedly, according to Dr. Hunter, from that time up to the time of his testimony at trial.

Immediately after the fall Dr. Hunter consulted an ophthalmologist in Salt Lake City who had treated him after the cataract removal above referred to. This doctor determined that the retina of the left eye was in fact detached and recommended corrective surgery. As indicated, the following day Dr. Hunter flew to San Francisco where a photo coagulation operation was performed in an attempt to fuse the detachment. This operation in a limited sense was successful in that it did succeed in attaching the retina, but the operation was unsuccessful in that because of macular changes following the detachment it did not restore sight to Dr. Hunter's left eye.

As mentioned, according to Dr. Hunter, he has suffered the entire and continuous loss of sight in his left eye since March 31, 1965. Insofar as postoperative treatment was concerned, upon his return from San Francisco Dr. Hunter was treated for about eight months by another Salt Lake City ophthalmologist. Dr. Hunter ceased going to this ophthalmologist on January 5, 1966, and he then went periodically to an optometrist, who was still examining him from time to time as of the time of trial. After a short period of convalescence following his return from San Francisco, Dr. Hunter resumed his practice of dentistry and was thus engaged as of the time of trial.

The testimony regarding the giving of notice of claim and the furnishing of proof of loss is not in any real dispute, as Dr. Hunter and his insurance agent, Larry Moss, are in general accord on the matter. Both agreed that on March 31, 1965, the day following the alleged accident, Dr. Hunter telephoned Moss and informed him that he (Dr. Hunter) "had a fall and had * * * apparently had a detached retina, in fact it was diagnosed as such" and that he was going to San Francisco for treatment. Dr. Hunter also recalled that he made specific inquiry as to whether his "insurance covered any...