Rabinovitz v. Travelers Ins. Co.
| Decision Date | 04 November 1960 |
| Citation | 105 N.W.2d 807,11 Wis.2d 545 |
| Parties | Beatrice RABINOVITZ, Plaintiff-Respondent, v. TRAVELERS INSURANCE CO., a foreign corporation, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Clemens, Miller, Hayes & Werner, Sheboygan, for appellant.
Emil Hersh, A. L. Skolnik, Milwaukee, for respondent.
In a summary judgment proceeding when the defendant makes the motion and shows his defenses are sufficient to defeat the plaintiff, he is entitled to summary judgment unless the plaintiff by affidavit or other proof shows facts which the court shall deem sufficient to entitle him to a trial. Sec. 270.635, Stats. It has often been stated by this court that if there is a material issue of fact raised by the affidavits or other proof, summary judgment cannot be granted.
The question presented is whether there is any question of fact to be resolved which entitles the plaintiff to a trial. The defendant contends that the language of the policy is clear and unambiguous and only a question of law is presented. The plaintiff contends that the phrase 'at his customary place of employment' must be disregarded because it is redundant and inconsistent with other provisions of the policy and the purpose of its issuance; that said phrase as used in the policy is ambiguous and capable of several interpretations and resort therefore must be had to the facts as to the insured's activities as well as to the negotiations between the parties preliminary to the issuance of the policy to determine the meaning thereof; and that regardless of the phrase, Morris Rabinovitz returned to active work and the performance of all of his duties after the effective date of the policy.
Generally, the construction of the words and clauses in an insurance policy is a question of law. See Bauman v. Midland Union Ins. Co., 1952, 261 Wis. 449, 53 N.W.2d 529, involving the word 'explosion' in the extended coverage clause of a fire policy in reference to a silo. We stated in Thurston v. Burnett & Beaver Dam Farmers' Mutual Fire Ins. Co., 1898, 98 Wis. 476, 478, 74 N.W. 131, 132, 41 L.R.A. 316:
'* * * Where language is plain and unambiguous, the apparent import of the words must govern, and the rule that where there is no uncertainty as to the meaning of the words used in the contract and where such uncertainty exists, but there is no extrinsic evidence or circumstance bearing on the subject to be considered in determining the meaning attributed to them by the parties when the contract was made, the proper interpretation of the words and construction of the contract are solely for the court.'
We do not find the words 'at his customary place of employment' ambiguous. The difficulty comes in applying the apparent meaning of the words to this particular fact situation. Such difficulty in application does not create an ambiguity in the language of the policy even if ineptly drawn.
The plaintiff argues the clause is redundant and inconsistent with the purpose of and other clauses in the policy. The clause is not inconsistent with exhibits A and B attached to the affidavits. Exhibit A is a brochure describing the plan in brief to the institute's members and includes a request form whereby a member of the institute can request a cost estimate of the plan for his employees. The brochure was not an offer by the defendant, or a contract. Exhibit B is an application of the Sheboygan Iron & Metal Company for participation, dated October 21, 1957, to the Scrap Iron and Steel Group Trust and The Travelers Insurance Company requesting that the three employees in the eligible classifications be insured under the policy to be issued to the trustees, and further stating that in consideration of the granting of this request the Sheboygan Iron & Metal Company agreed to be bound by the terms, conditions, and provisions of the said policy. The application was approved by the Scrap Iron and Steel Group Trust and by the defendant.
We find nothing in these exhibits material to the question of when the group policy should become effective. It is true that no medical examination was required by any employee and is so stated in the plan and in exhibit B. Such fact is not inconsistent with the clause in the policy requiring an eligible employee to be actively at work performing all of the duties of his employment with the employer member at his customary place of employment on the date his insurance is to become effective. Nor can evidence of the nature of Rabinovitz' employment be used to create an ambiguity on the theory that the language of the contract does not express its purpose and the meaning understood by the parties thereto. The policy was a master group life policy negotiated by the defendant and the trustees of the...
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