Lusk v. Aetna Life Ins. Co., 13169

• Decision Date: 27 March 1973
• Docket Number: No. 13169,13169
• Citation: 195 S.E.2d 163,156 W.Va. 549
• Court: West Virginia Supreme Court
• Parties: Fred LUSK v. AETNA LIFE INSURANCE COMPANY, a corporation.

Page 163

195 S.E.2d 163

156 W.Va. 549

Fred LUSK v. AETNA LIFE INSURANCE COMPANY, a corporation.

No. 13169.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 6, 1973.

Decided March 27, 1973.

Syllabus by the Court

1. A provision in a group accident and health insurance policy which provides that an employee will be entitled to benefits for any period during which the employee is wholly disabled by a disease or an accident if he is prevented by such disability from performing any and every duty pertaining to his occupation does not mean that the employee must be absolutely helpless.

2. Clauses and provisions in insurance policies are construed most liberally in favor of the insured.

D. Grove Moler, Mullens, for appellant.

Bailey, Worrell & Viers, Robert D. Bailey, Pineville, for appellee.

BERRY, President:

The Aetna Life Insurance Company, hereinafter referred to as defendant, appeals from a final order of the Circuit Court of Wyoming County entered August 30, 1971 wherein the Court, sitting in lieu of a jury, found in favor of Fred Lusk, hereinafter referred to as plaintiff, in the amount of $1200 based on a group disability insurance policy which covered Fred Lusk as an employee of Island Creek Coal Company. The defendant contends that the trial court erred in awarding the plaintiff $1200 in addition to the $1400 the defendant had already paid the plaintiff for his disability under the insurance policy. This Court granted defendant's petition for an appeal on December 6, 1971 and the case was submitted for decision on February 6, 1973 on the briefs of the attorneys on behalf of the respective parties.

It appears from the record that Fred Lusk sustained serious facial injuries in a coal mine accident on October 18, 1967. Lusk sustained a broken nose, broken chin and a bilateral broken jaw, and underwent several operations as a result of these injuries. The group insurance policy stated that $50 per week would be paid to the insured up to a maximum of 52 weeks, but that no disability payments would be made for the first ninety days of any disability. The contract also stated that disability payments would be paid '* * * for any period during which the Employee is wholly disabled by a disease or by an accidental bodily injury, and is prevented by such disability from performing any and every duty pertaining to the Employee's occupation; * * *.' The policy also stated that no disability payments would be paid for any period during which the employee was not under the care of a qualified physician.

Under the terms of the insurance policy, the defendant began paying $50 per week to the plaintiff on January 17, 1968 and continued paying plaintiff through May 7, 1968. The defendant ceased making payments at that time because of a physician's report from Dr. W. C. Moorman, who had reduced the fractures of plaintiff's jaw bone and chin. The report, dated May 13, 1968, said: 'This man is 65 yrs. old and retired. He is not planning to return to work as a miner. He does work around home in garden, etc. I only see him periodically.' However, defendant subsequently paid the plaintiff disability payments through July 30, 1968 based on a letter from Dr. Moorman to the defendant dated May 15, 1969, which stated: 'As a result of these injuries Mr. Lusk was unable to work from the date of the accident until July 30, 1968.' The plaintiff brought an action in the Circuit Court of Wyoming County contending that he was entitled to disability payments for 24 weeks after July 30, 1968 in addition to the 28 weeks for which he had received disability payments.

It appears from the depositions of the plaintiff and his wife that plaintiff had two 'Sherman plates' inserted in his jaw after the accident. However, one side of his jaw became infected and Dr. Moorman removed one of the plates, scraped the jaw and wired the jaw back together. It appears that plaintiff's jaw was wired together for several weeks after July 30, 1968 and he was only able to eat by using a straw.

The depositions and exhibits also reveal that plaintiff was scheduled for corrective surgery on October 11, 1968 on his nose in order to relieve a breathing difficulty he was experiencing. However, the operation was cancelled until July of 1969 because the plaintiff's blood pressure began fluctuating as a result of an attack of hypertension. The defendant subsequently sent a letter to Dr. Capinpin, the doctor who was to perform the nasal passage operation in October of 1968, and asked whether or not he thought the plaintiff was disabled from May through August of 1968. Dr. Capinpin replied on October 14, 1969:

'During this period the patient had limited activities doing normal chores and from this...