Jacobson v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 29 November 1971 |
| Docket Number | No. 9280,9280 |
| Parties | Elizabeth JACOBSON, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Appellee ('State Farm') was granted summary judgment and appellant ('plaintiff') appeals. We affirm. This case has been here once before. 81 N.M. 600, 471 P.2d 170 (1970).
State Farm issued a policy of insurance to plaintiff which included disability coverage as follows:
'COVERAGE T--Total Disability.
'To pay the applicable amount of weekly indemnity stated as applicable to the insured designated for such coverage in the declarations for each week of continuous total disability of each insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile, provided:
'(1) such disability shall commence within 20 days from the date of such accident, and
'(2) such disability has a duration of not less than seven consecutive days, and
'(3) any disability during the period of one year from its commencement shall be deemed total disability only if it shall continuously prevent the insured from performing any and every duty pertaining to his occupation, and
'(4) any disability after said one year shall be deemed total disability only if it shall continuously prevent the insured from engaging in any and every gainful occupation for which he is reasonably fitted by education, training or experience. * * *'
Plaintiff was injured in an automobile collision on August 8, 1967. She then suffered distress which sometimes required her to leave her work or even miss work for periods of up to three consecutive days, a situation which continued until October 28, 1967 and from time to time thereafter. No claim is made by plaintiff for disability payments on account of this sort of disability.
Ultimately plaintiff was confined in a hospital on more than one occasion for both conservative treatment and surgery, and was disabled for continuous periods of seven days or more on four occasions between October 28, 1967 and December 2, 1968. She says she was intermittently so disabled for a total of forty-one weeks during that time.
On these facts, both parties moved for summary judgment on the disability compensation count of the complaint. The trial court sustained State Farm's motion.
It is plaintiff's theory that her disability 'commenced' within twenty days of the accident because during that time 'on her first day at work following the collision of August 8, 1967 she was in such distress, and was so nauseated that she could not continue at her work for the full day and returned to her home; that on a number of occasions on the days immediately following the collision in the month of August, 1967 she reported for work but was unable to continue because of pain and nausea; that on several occasions during the month of August, 1967 she was so nauseated that she could not drive her automobile and her employer made arrangements for taking her from the office to her home; that on the 24th of August, 1967 she was seen by Dr. H. V. Hedman and saw him on three occasions; * * * that through the kindness of her employer no deductions were made for the considerable amount of time she took off in August, 1967; * * *.'
Plaintiff concedes that no 'continuous total disability' of at least 'seven consecutive days' either occurred or commenced within twenty days of the injury. She asserts that it is sufficient that some disability occurred in the first twenty days and that the features of totality and duration could come later.
Plaintiff further contends that to be entitled to disability payments under the provisions of the policy we have quoted, the entire disability period for which claim is made need not be continuous, but rather may be intermittent so long as each period for which claim is made amounts to seven days or more.
We do not agree with her first premise and therefore need not consider the second.
The first paragraph of Coverage T provides...
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