Kyte v. Fireman's Fund American Ins. Companies, No. 10059

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: 549 S.W.2d 366
• Parties: Lawrence A. KYTE, Plaintiff-Respondent, v. FIREMAN'S FUND AMERICAN INSURANCE COMPANIES, Defendant-Appellant.
• Decision Date: 28 March 1977
• Docket Number: No. 10059

Page 366

549 S.W.2d 366 Lawrence A. KYTE, Plaintiff-Respondent,
v.
FIREMAN'S FUND AMERICAN INSURANCE COMPANIES, Defendant-Appellant. No. 10059. Missouri Court of Appeals, Springfield District. March 28, 1977.

William C. Crawford, Frieze, Crandall & Crawford, Carthage, for plaintiff-respondent.

John R. Martin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-appellant.

PER CURIAM.

Plaintiff Lawrence Kyte sued for benefits allegedly due him under a group disability insurance policy issued by defendant Fireman's Fund. Plaintiff claimed defendant had paid some benefits but wrongfully refused to make further payments due under the policy. Defendant denied liability for additional benefits and counterclaimed

Page 367

for recovery of monies it alleged were overpaid plaintiff because of his receipt of benefits under another disability policy. The Circuit Court of Jasper County, sitting without a jury, found for plaintiff on his petition and on defendant's counterclaim, and entered judgment for plaintiff. We affirm.

The sole issue on appeal concerns the applicability of Part XV of the Fireman's Fund group policy which covered plaintiff as an employee of Foremost-McKesson, Incorporated. This clause, entitled "Reduction In Indemnity For Other Disability Insurance Benefits," provides as follows:

The amount of any Indemnity or expense payable under this policy shall be reduced by any benefits paid or payable under any other Disability Policies, or any plan, negotiated by or through any employer or sponsoring entity.

It was stipulated that plaintiff became disabled in 1971 and during June of that year began to receive monthly disability benefits under a policy with the Travelers Insurance Company. Defendant contends this policy with Travelers was "negotiated by or through" plaintiff's employer within the meaning of the above-quoted Part XV of his group policy with Fireman's Fund. It claims the benefits received by plaintiff from Travelers must be deducted from the amounts otherwise payable under its own policy.

The case was tried upon a stipulation of facts, documentary evidence, and the brief testimony of plaintiff. Plaintiff was employed by Foremost-McKesson from 1934 until he became disabled on June 30, 1971. In June 1958, Burt Barkus, an independent insurance agent, and Roy Wharton, a field supervisor for the Travelers Insurance Company, advised certain division officers of Foremost-McKesson that Travelers had a "franchise plan" for key employees. The plan would provide supplemental income in case of disability by illness. Under this plan the company employer had to agree to furnish a list of key employees, permit solicitation of employees on company premises, and make payroll deductions for premiums. If the company agreed to these conditions and at least five employees signed for the plan, it would become effective. After several letters and other communications between plaintiff's employer and representatives of Travelers, the officers of Foremost-McKesson agreed to the plan and the required number of employees applied for policies. Plaintiff Lawrence Kyte executed an application on July 7, 1958, and on October 1, 1958, Travelers issued to him the disability policy under which he began to receive benefits in 1971.

The Travelers "franchise plan" was not group insurance; each policy was individually applied for, and if the application was accepted Travelers issued an individual policy. In the event a policyholder under the plan left...