Insurance Company of North America v. Thompson

• Decision Date: 17 November 1967
• Docket Number: No. 20822.,20822.
• Citation: 381 F.2d 677
• Parties: INSURANCE COMPANY OF NORTH AMERICA, a corporation, Appellant, v. Thomas J. THOMPSON, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

381 F.2d 677 (1967)

INSURANCE COMPANY OF NORTH AMERICA, a corporation, Appellant, v. Thomas J. THOMPSON, Appellee.

No. 20822.

United States Court of Appeals Ninth Circuit.

August 4, 1967.

Rehearing Denied November 17, 1967.

COPYRIGHT MATERIAL OMITTED

T. H. Eberle, Richards, Haga & Eberle, Boise, Idaho, for appellant.

Theron E. Roberts, Roberts & Poole, Boise, Idaho, for appellee.

Before MADDEN, Judge, Court of Claims, and DUNIWAY and ELY, Circuit Judges.

ELY, Circuit Judge:

Appellee Thompson, insured under a group policy of accident and disability insurance issued to his employer, commenced this action in an Idaho state court to recover benefits allegedly due under the policy. The cause was removed, on appellant's petition, to the United States District Court for the District of Idaho, where trial to a jury resulted in a verdict and, after denial of appellant's motions for judgment notwithstanding the verdict or for a new trial, judgment in favor of the insured. Jurisdiction below was based upon diversity of citizenship and the requisite amount in controversy. 28 U.S.C. § 1332. Our power of review is conferred by 28 U.S.C. § 1291.

The insurance contract protects against described losses which result "directly and independently of all other causes from bodily injuries caused by accident occurring while this policy is in force. * * *" In addition, the policy contains an exclusionary clause which provides that it "does not cover loss caused by or resulting from * * * bodily infirmity * * *." The benefit sought by and awarded to appellee was the "Permanent Total Disability Benefit," payable "after one year of `continuous total disability' * * * if the insured is then `permanently and totally disabled' * * *."

Thompson, a miner and a worker on heavy construction projects, had been involved in numerous industrial accidents prior to the period during which he was insured under appellant's policy. On September 9, 1963, a date within that period, Thompson was the victim of still another industrial accident. While working in Bogata, Colombia, he slipped on an oily surface and fell backwards, striking his neck on a steel collar brace. Complaining of pains in his neck, shoulders, arms, and head, he was returned to Boise, Idaho. There he consulted several doctors, and on February 21, 1964, while in an Idaho hospital, a myelogram study was made. This diagnostic procedure required injection of a dye, an opaque substance, into the patient's spinal column. Later in the same day of the study, on attempting to arise from his hospital bed, Thompson suffered severe pains in his legs. These pains persisted, and it is this condition which he claims to have disabled him.

Appellee asserts that his leg pains are a result of the accident of September 9, 1963, and that he is, therefore, entitled to the claimed benefit. Appellant contends that Thompson is not permanently disabled within the meaning of the policy and that, even if he were so disabled, the loss was not one which is covered by the policy. To support the latter contention, appellant takes two positions. The first is that the leg pains were not a result of the September 9 accident, but were caused by the incident of February 21, 1964, which, it argues, constituted a separate accident not occurring during the period of coverage. The second is that, even if the pains were caused by the September 9 accident, they did not result from that accident "directly and independently of all other causes," but, at least in part, from bodily infirmity which was the product of Thompson's previous industrial mishaps.

The principal assignment of error relates to the policy's exclusion of losses caused by bodily infirmity. The evidence in the record clearly establishes that appellee was afflicted with bodily infirmity, in some degree at least, prior to his September 9 fall. The problem, however, is whether or not that infirmity was a cause of Thompson's present disability. Judgment in his favor depended, of course, upon the jury's finding that it was not such a cause. Appellant vigorously urges that the evidence was insufficient to support that determination and that the finding was based on erroneous instructions. On the issue the jury was charged as follows:

"In order to recover, the plaintiff must prove, by a preponderance of the evidence, as in these instructions defined, each of the following:

* * * * * *

4. That such disability resulted directly and independently of all other causes from bodily injuries caused by the accident."

Appellant claims that its defense was prejudiced by the court's refusal to present an additional instruction which it had requested be given, as follows:

"I instruct you that the accident insurance policy which Plaintiff is covered by does not cover losses or disabilities which are brought about either directly or indirectly, in whole or in part, caused by or resulting from an illness, disease, bodily infirmity or bacterial infection other than one as is a consequence of a cut or wound in the accident. The policy insures only against disability resulting directly and independently of all other causes from bodily injuries caused by the accident * * *.

* * * I instruct you that the term `bodily infirmity\' as used in the policy means something more than minor and passing or transient disabilities which leave no permanent effect but does include the disabilities which Plaintiff suffered, if any, from previous accidents, illnesses, and supersusceptability sic or allergies to drugs unusual to the average person * * *. Therefore, if you find from the preponderance of the evidence that a disease or bodily infirmity existed as herein defined, and said items contributed, in whole or in part to the disabilities of Plaintiff, you may not find for the Plaintiff."

Appellant's theory is that the instruction, as given, permitted the jury to find for appellee if it should determine that the September 9 accident was a proximate cause of his leg pains, even though his pre-existing infirmity may have...