Pilot Life Ins. Co. v. Crosswhite

• Decision Date: 29 November 1965
• Citation: Pilot Life Ins. Co. v. Crosswhite, 206 Va. 558, 145 S.E.2d 143 (1965)
• Parties: PILOT LIFE INSURANCE COMPANY v. Larry K. CROSSWHITE, an Infant, etc.
• Court: Virginia Supreme Court

Page 143

145 S.E.2d 143

206 Va. 558

PILOT LIFE INSURANCE COMPANY v.Larry K. CROSSWHITE, an Infant, etc.

Supreme Court of Appeals of Virginia.

Nov. 29, 1965.

William H. Woodward, Bristol (Jones, Woodward, Miles & Greiner, Bristol, on brief), for plaintiff in error.

James E. Nunley, Bristol, for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

I'ANSON, Justice.

This action was instituted by plaintiff, Larry Crosswhite, an infant, by his father and next friend, against defendant, Pilot Life Insurance Company, to recover medical expenses under a 'scholastic accident insurance policy.'Trial by jury was waived and the case was submitted to the trial judge, upon an agreed stipulation of facts, who entered judgment for the plaintiff in the amount of $1,233.15, and defendant is here on a writ of error.

Defendant contends that since the expenses incurred by the plaintiff were for the treatment of an infection which did not occur through an open visible wound resulting from an accident, they were not covered under the provisions of the exclusion clause in the policy.

The stipulation of facts shows that on July 25, 1962, defendant issued a scholastic accident insurance policy to the Superintendent, Bristol, Virginia, Public Schools, insuring school children under his supervision against accidental death or bodily injuries sustained while attending school, or engaged in activities closely related to school attendance.

A clear and concise summary of the plan of insurance and coverage was furnished plaintiff and his parents, and upon application and payment of the premium of $2.50 plaintiff was insured under the master policy for the period from September 1, 1962, to September 1, 1963.

On or about March 15, 1963, plaintiff, while playing basketball in a physical education class, fell on the floor of the Virginia Junior High School gymnasium.No abrasion or open would resulted from the fall.Later in the same day plaintiff developed a fever, and on March 18, 1963, he was admitted to a hospital suffering from pain in his left knee and fever.

An X-ray examination of plaintiff's knee was negative, but a physical examination revealed a tenderness to touch.While in the hospital he developed a pain in his chest.He was discharged from the hospital on March 27, with a diagnosis of virus infection.

Subsequently plaintiff visited his physician's office at monthly intervals during which time the only finding was a slight swelling of the left knee.

In August, 1963, when plaintiff began playing football, he experienced pain in his knee.X-rays taken at this time showed a Brodie's abscess (an infection) in the lower portion of the left femur near the knee.On September 23, 1963, he was readmitted to the hospital and the abscess was opened and removed by curettement.He remained in the hospital until October 11, 1963, and was last seen by his doctor on December 5, 1963, at which time he appeared to have completely recovered.

It was the opinion of plaintiff's physician, an orthopedic surgeon, that the trauma resulting from plaintiff's fall 'caused the infection to develop into the Brodie's abscess.'

The amount of medical expenses incurred by the plaintiff, or on his behalf, is not in dispute.

The contract sued on contains the following relevant provisions:

'THIS IS A LIMITED POLICY--READ IT CAREFULLY.

'THIS POLICY IS NOT RENEWABLE.IT PROVIDES BENEFITS FOR LOSS OF LIFE, LIMBS OR SIGHT CAUSED BY ACCIDENTAL BODILY INJURY, AND FOR MEDICAL EXPENSES INCURRED DUE TO ACCIDENTAL BODILY INJURY, TO THE EXTENT HEREIN LIMITED AND PROVIDED.'

The 'INSURING AGREEMENTS' provide in part:

'If any person, as a result, directly and independently of all other causes, of bodily injuries caused by an accident occurring while insured hereunder and while

(1) attending school during the hours and on the days when school is in session;

* * *

* * *

(which injuries are herein called 'such injuries') shall suffer loss of life, hands, feet or sight within ninety days following the date of the accident causing such injuries or shall actually be examined in person and treated by a physician or dentist within thirty days following the date of such accident and shall incur expenses for such treatment or for hospital confinement, professional ambulance service or the services of a Registered Nurse within twelve months following the date of such accident, Pilot Life shall pay, subject to the terms and conditions of this Policy, the benefits hereinafter provided.'

An 'EXCLUSIONS' clause provides, among other things, that:

'No payment of any kind shall be made for injuries, death or any other loss caused, wholly or partly, directly or indirectly, by

* * *

* * *

(4) * * * infections, other than infections occurring through an open visible wound resulting from 'such injuries'; * * *' (Emphasis added.)

Defendant argues that the terms and provisions of the policy are clear and unambiguous and since the Brodie's abscess did not develop as a result of infection from an open visible wound there was no coverage under the policy for plaintiff's expenses.Thus the sole question presented is that of coverage, which must be determined by a construction of the contract of insurance.

Contracts of insurance are to be liberally construed in favor of the insured, but if they are...