Pilot Life Ins. Co. v. Karcher, 751264
| Decision Date | 24 November 1976 |
| Docket Number | No. 751264,751264 |
| Citation | 229 S.E.2d 884,217 Va. 497 |
| Parties | PILOT LIFE INSURANCE COMPANY v. Melvin J. KARCHER. Record |
| Court | Virginia Supreme Court |
Roderick B. Mathews, Richmond (R. Harvey Chappell, Jr., Christian, Barton, Epps, Brent & Chappell, Richmond, on briefs), for plaintiff in error.
David C. Dickey, Stanardsville (C. Waverly Parker, Stanardsville, on brief), for defendant in error.
Before CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
Pilot Life Insurance Company (Pilot) is before us on a writ of error and supersedeas to a final order of the trial court awarding judgment to Melvin J. Karcher (Karcher) for $12,950 with interest from June 9, 1974, on a jury verdict in Karcher's favor.
Since the record contains no transcript or written statement of the facts, testimony or incidents of the trial below, Karcher moves for dismissal of the appeal on the ground that, in the absence of such a transcript or written statement, there can be no showing that Pilot's objections to instructions were stated with reasonable certainty before the trial court so as to preserve those objections. Rule 5:7*, Rules of Court. While a transcript or written statement is generally the vehicle for showing that timely objection to instructions was made before the trial court to preserve the point on appeal, such objection may also be shown and preserved where, in a refused instruction, the objecting party propounds the contrary theory to one set forth in a granted instruction. Powell v. Orphanage, 148 Va. 331, 345, 138 S.E. 637, 641--42 (1927). This is the case here, as our later discussion will show, so the motion to dismiss is denied.
Karcher's claim against Pilot arose under a sickness and accident insurance policy issued by Pilot to Karcher on July 1, 1971. Under this policy, in consideration of a monthly premium of $10.65, Pilot agreed to provide a $500 monthly indemnity, after an elimination period of 30 days, to Karcher for life if he became and remained totally disabled because of injury. The term 'injury', as defined by the policy '. . . means bodily injury caused by an Accident occurring while the policy is in force with respect to the person whose injury is the basis of claim And which, while this policy is in force, results directly and independently of all other causes In loss covered by this policy.' (emphasis supplied).
The policy also provided a monthly indemnity of $500, after an elimination period of 30 days, for total disability due to 'sickness or disease contacted or Commencing after the (e)ffective (d)ate of this policy . . . and which, while the policy is in force, results in loss covered by this policy.' (emphasis supplied). The maximum indemnity for total disability due to sickness was limited to a period of two years by the policy provisions.
Under additional definitions the policy provides:
'RECURRENT DISABILITIES: If a period of total disability due to injury or due to sickness, commencing while this Policy is in force, results from causes which are the same as, or related to, the cause of any prior period of total disability with respect to which Monthly Indemnity has been payable under this Policy, the subsequent period shall be considered as a continuation of the prior period for the purposes of this Policy, unless the Insured has performed every duty pertaining to his occupation on a full-time basis for a continuous period of at least 6 whole months between such periods of total disability, in which event such total disability shall be deemed to be a new period of total disability and subject to a new Elimination Period.'
The parties agree that Pilot paid Karcher indemnity for total disability because of accidental injury from September 24, 1971 to January 3, 1972 and a lump sum in lieu of indemnity for the period of March 5, 1972 to August 22, 1972. Karcher's action sought indemnity for total disability from April 29, 1973 to the day of trial in the amount of $12,950.
Pilot's position, that the policy had lapsed for nonpayment of premiums, is shown by Instruction A which it tendered and the court refused. This instruction, as tendered, would have told the jury that:
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