Pacheco v. Continental Cas. Co.

• Decision Date: 10 November 1970
• Docket Number: No. 3821,3821
• Citation: 476 P.2d 166
• Parties: Floyd PACHECO, Appellant (Plaintiff below), v. CONTINENTAL CASUALTY COMPANY, a corporation, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 166

476 P.2d 166

Floyd PACHECO, Appellant (Plaintiff below), v. CONTINENTAL CASUALTY COMPANY, a corporation, Appellee (Defendant below).

No. 3821.

Supreme Court of Wyoming.

Nov. 10, 1970.

Robert L. Bath, of Venta, Bath & Murray, Rock Springs, for appellant.

Edward E. Murane, of Murane, Bostwick, McDaniel, Scott & Greenlee, Casper, for appellee.

Before GRAY, C. J., and McINTYRE, PARKER and McEWAN, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Action was brought in the district court by Floyd Pacheco to recover from Continental Casualty Company on an accident and sickness insurance policy. It is the contention of plaintiff that he is entitled to recover under the accident provisions of the policy from the time of his alleged accident and as long as his disability lasts.

The contention of defendant, the insurer, is that plaintiff's original claim was based upon sickness and that all payments provided for under the policy have been paid. The trial court found there was no genuine issue as to any material fact and granted summary judgment to the insurance company. The insured, Pacheco, has appealed.

The undisputed facts in the case are such that we find no issue of fact be tried; and we approve the entry of summary judgment for defendant.

The policy under which Pacheco was insured covered loss resulting from injury or sickness. Injury is described in the policy as bodily injury caused by an accident resulting directly and independently of all other causes in loss covered by the policy. For total disability from accident an indemnity of $200 per month is provided for life. Such indemnity is what the insured is claiming.

According to the evidence before the court, in connection with defendant's motion for summary judgment, plaintiff is claiming an accident on May 21, 1963. He claims he was struck in the mouth by a piece of iron and knocked into a loader bucket. Plaintiff admits he did not go to the hospital; he did go to a dentist. He was not off work at that time as a result of the accident. He had no cuts or bumps on his body other than from being hit in the face. There was no cut on plaintiff's head nor an egg-shaped bump. No evidence of a bruise or cut or bump was offered. The plaintiff was not knocked unconscious and he was able to get up under his own power and continued working. He finished his shift before going to the dentist. He then continued to work from the time of the accident, May 21, 1963, to December 23, 1963.

Claim for Accident Benefits

The first notification the insurance company had that Pacheco had an accident May 21, 1963 and that a claim for accident benefits might be made was through a letter written to the company by Pacheco's attorney under date of May 20, 1966 (three years after the accident). Counsel for Continental questions whether this letter was a sufficient notice of claim. Without deciding that matter, however, we will assume for purposes of our decision that notice of claim was given by a letter dated May 20, 1966.

In the interim between May 21, 1963 and May 20, 1966, it is undisputed that Pacheco claimed sick benefits under Continental's policy and was paid indemnity for confining sickness and non-confining sickness in the amount of $4,566.67. In addition, hospital and surgical charges were paid in connection with the plaintiff's sickness to the extent of $8,182.01. The policy contains a provision for a maximum period of 24 months in its coverage of sickness indemnity. Apparently plaintiff was paid this maximum.

The plaintiff went to Dr. Wayne M. Hebertson of Salt Lake City for examination and treatment during the latter part of 1963. His complaint was severe headaches. The theory under which the instant suit is brought is that Dr. Hebertson, following his first examinations, believed plaintiff's head complaints were referable to the spine. Thereupon, Pacheco related facts about two earlier accidents-a 1960 head injury on a job and a 1952 automobile accident.

It is admitted plaintiff did not then connect his difficulty with the accident of May 21, 1963. His counsel states there would be no reason for plaintiff to neglect to advise the insurance company of the May, 1963 accident except through 'inadvertence.' Counsel indeed sets forth as appellant's chief contention that plaintiff did not become aware of the exact nature of his ailment until shortly before the letter of May 20, 1966.

Thus, the claim is made that plaintiff furnished or caused to be furnished to the company notice of claim and proofs of loss within the provisions of the policy and applicable Wyoming statutes. In other words, as counsel states, within the 'reasonably possible' terminology provided in the policy.

Policy Provision

The policy provision brought into question by plaintiff's action is the one having to do with notice of claim. The pertinent portion of this provision reads:

'Written notice of claim must be given to the Company within twenty days after the occurrence or commencement of any loss covered by the policy, or as soon thereafter as is reasonably possible.'

It is undisputed that the occurrence or commencement of the alleged loss was May 21, 1963. Therefore, written notice of claim under the accident provisions of the policy was required within 20 days after May 21, 1963, or as soon thereafter as is 'reasonably possible.'

Considerations Present

It must be pointed out that a delay of three years could deprive the insurance company of an effective opportunity to examine the claimant to determine whether his alleged disability is a result of injury caused by an accident on May 21, 1963 and resulting directly and independently of all other causes in disability. This is especially true where it is admitted the insured had other accidents which he connected with his...