Proctor v. Southland Life Ins. Co.

• Decision Date: 11 April 1975
• Docket Number: No. 17598,17598
• Citation: 522 S.W.2d 261
• Parties: William C. PROCTOR, Appellant, v. SOUTHLAND LIFE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 261

522 S.W.2d 261

William C. PROCTOR, Appellant, v. SOUTHLAND LIFE INSURANCE COMPANY, Appellee.

No. 17598.

Court of Civil Appeals of Texas,

Fort Worth.

April 11, 1975.

Rehearing Denied May 9, 1975.

Joe E. Shaddock, Wichita Falls, for appellant.

Fillmore, Parish, Martin, Kramer & Fillmore, and Elmer H. Parish, Wichita Falls, for appellee.

OPINION

MASSEY, Chief Justice.

Suit was by William C. Proctor, plaintiff, against Southland Life Insurance Company, defendant, for insurance policy benefits in the form of an amount representing the accrued sum owing because of amounts per week prescribed by the policy to be payable in the event of total disability.

The defendant company moved for summary judgment, which was granted. The plaintiff appealed.

Reversed and remanded for trial.

In a summary judgment we resolve all doubts against the company, as the moving party. This includes instances where there is conflict in the evidence. We do this in our statement of the case.

Since 1960 the plaintiff had, among several other policies of insurance with Southland Life Insurance Company, that upon which he relies in this case, to-wit: No. AC 37831, dated September 1, 1960, containing in the Schedule of Coverages 'Weekly Indemnity for Total Disability . . . $100.00.'

The Benefit Provision immediately following reads, 'Section 1. Weekly Indemnity--Total Disability: If such injuries shall, within twenty days after the date of accident, result directly and independently of all other causes in total disability which shall continuously prevent the insured from performing each and every duty pertaining to his occupation, the Company will pay weekly indemnity at the rate hereinbefore specified in the Schedule of Coverages for the period of such continuous total disability, but for not exceeding fifty-two consecutive weeks. After the payment of weekly indemnity for fifty-two weeks as aforesaid, the Company will continue the payment of weekly indemnity at the same rate thereafter so long as the insured shall be totally disabled and continuously prevented by such injuries from engaging in any occupation or employment for wage or profit.'

By the rules applicable in construction and interpretation of insurance contracts we view the foregoing in a liberal construction in favor of the insured plaintiff and by strict construction against the company insurer.

The plaintiff sustained on July 28, 1969 injuries which from that moment occasioned the 'total disability' specified by the policy language, both as applied to the initial fifty-two weeks period, and also as applied to the entire period subsequent thereto up until date of the judgment on April 18, 1974.

Unless, under the policy of insurance, there is some provision which prevents it, or frees the company of obligation to make payment of the calculable amount of $100.00 times the number of weeks elapsed between July 28, 1969 and April 18, 1974, such amount is owed to plaintiff.

Substantially tracking the requirements provided by Texas' Insurance Code, V.A.T.S., Subchapter G, 'Accident and Sickness Insurance', Art. 3.70--3, 'Accident and Sickness Policy Provisions', there was policy provision as follows: 'Notice of Claim: 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. Notice given by or on behalf of the Insured or the beneficiary to the Company at Dallas, Texas, or to any authorized agent of the Company, with information sufficient to identify the Insured, shall be deemed notice to the Company.'

Under rules applicable to summary judgments, motion for which is made by a defendant the record in this case shows a failure on the part of the movant company to exhibit that neither plaintiff, nor someone in his behalf, gave the required notice. For our purposes notice is proved. Questions of fact exist which might be material upon a trial of the merits, but such are of no importance to these summary judgment proceedings.

Further substantially tracking the requirements of Art. 3.70--3 of the Insurance Code, the following paragraphs were likewise inserted in the policy:

'Claim Forms: The Company, upon receipt of a notice of claim, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not furnished within fifteen days after the giving of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting, within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, the character and the extent of the loss for which claim is made.'

'Proofs of Loss: Written proof of loss must be furnished to the Company at its said office in case of claim for loss for which this policy provides any periodic payment contingent upon continuing loss within ninety days after the termination of the period for which the Company is liable and in case of claim for any other loss within ninety days after the date of such loss. Failure to furnish such proof within the time required shall not...