Jenkins v. New York Life Ins. Co.

• Decision Date: 13 February 1940
• Docket Number: 8980.
• Citation: 7 S.E.2d 343,122 W.Va. 73
• Parties: JENKINS v. NEW YORK LIFE INS. CO.
• Court: West Virginia Supreme Court

7 S.E.2d 343

122 W.Va. 73

JENKINS v. NEW YORK LIFE INS. CO.

No. 8980.

Supreme Court of Appeals of West Virginia.

February 13, 1940

Syllabus by the Court.

The word "income," within disability provision of life policy obligating insurer to pay insured a "monthly income *** beginning immediately on receipt" of proof of disability, means recurrent periodical payments, and limited by the adjective "monthly" the time of payment becomes fixed, and does not contemplate a lump sum payment in part or in whole, and the phrase "beginning immediately on receipt of said proof" relates only to "monthly income" and not to all payments inclusive of a lump sum settlement covering the omitted period.

A disability provision of life policy obligating insurer to pay to insured a monthly income beginning immediately on receipt of proof of disability does not require insurer to make payments covering period which intervened between inception of disability and time of filing of proof of disability.

Under disability provision of life policy obligating insurer to pay insured monthly income beginning immediately on receipt of proof of disability, insured's disability resulting from mental incapacity did not relieve insured from filing necessary proof of disability before payments of monthly income should commence, and hence notice of disability filed long after disability began did not operate retroactively.

Disability provisions of life policy are to be strictly construed, at least to extent of treating their terms as creating "conditions precedent" to be performed before liability arises, while in accident policy conditions not having to do with vital question of inception of liability must be regarded as "conditions subsequent," so that in one case disability does not extend time for required filing of proof of disability, whereas, in the other, it does.

1. A disability provision of a life insurance policy which obligates the insurer to pay to the insured "a monthly income *** beginning immediately on receipt" of proof of disability does not require the insurer to make one or more payments covering the period which intervened between the inception of the disability and the time of filing the proof of disability.

2. Under a life insurance policy that requires proof of disability before the payments of monthly income shall begin the disability of the assured does not relieve him from filing with the insurer the necessary proof of disability before the payments of monthly income shall commence.

3. The term "monthly income" in the disability clause of a life insurance policy, not further defined in the insurance contract, does not include a lump sum payment in whole or in part.

4. The second point in the syllabus of the case of Neill v Fidelity Mutual Life Insurance Co., 119 W.Va. 694, 195 S.E. 860, distinguished from the second point in the syllabus in the case of Hayes v. Prudential Insurance Co etc., 114 W.Va. 323, 171 S.E. 824.

Disability provisions of life policy are to be strictly construed, at least to extent of treating their terms as creating "conditions precedent" to be performed before liability arises, while in accident policy conditions not having to do with vital question of inception of liability must be regarded as "conditions subsequent," so that in one case disability does not extend time for required filing of proof of disability, whereas, in the other, it does.

R. E. O'Connor and A. G. Thompson, both of Charleston, for plaintiff in error.

Brown Jackson & Knight and R. G. Kelly, all of Charleston, for defendant in error.

KENNA Judge.

This is a notice of motion proceeding, brought in the Court of Common Pleas of Kanawha County, in which the demurrer of the New York Life Insurance Company to the plaintiff's notice was sustained, and the proceeding dismissed. The Circuit Court of Kanawha County having declined the plaintiff's application for a writ of error, the prayer of the petition was granted by this court.

According to the allegations of the notice, in December, 1923, the policy under the terms of which recovery is

sought was issued. It remained in effect until the death of the insured in 1934. The only question involved in this proceeding is whether a notice of disability which the company received April 14, 1933, operated retroactively so that the insured was entitled to the monthly payment of disability insurance provided for in the policy from the inception of his total disability, which the notice alleges began June 21, 1929. Upon receiving the proof of disability, the New York Life Insurance Company waived premiums and made the monthly income payments from that time until the death of the insured. As stated, the insured's personal representative now seeks to recover payments which antedate the time of the proof of disability.

The material parts of the life insurance policy forming the basis for the recovery herein sought are contained in paragraph three and read as follows:

"3. Benefits.--Upon receipt at the Company's Home Office, before default in payment of premium, of due proof that the Insured is totally and presumably permanently disabled and that such disability occurred after the insurance under this Policy took effect and before its anniversary on which the Insured's age at nearest birthday is sixty years, the following benefits will be granted:

"(a) Income Payments.--The Company will pay to the Insured a monthly income of $10 per $1,000 of the face of the policy during his lifetime and continued disability, beginning immediately on receipt of said proof. Any income payment due before the Company approves the proof of disability shall be payable upon such approval. If disability results from insanity, income payments under this section will be paid to the beneficiary in lieu of the Insured."

The plaintiff in error (insured) advances three contentions:

(1) That the language of the policy in plain and unequivocal terms entitles the insured to disability insurance covering the full period of a disability arising during the life of the policy, if satisfactorily proven, regardless of the time the insurer received the proof.

(2) That if the policy is not sufficiently explicit to clearly so provide, the language covering the disability provision is ambiguous, and for that reason is susceptible of that interpretation because the policy is to be read most favorable to the insured.

(3) That if both the preceding contentions are found against...