Reliance Mut. Life Ins. Co. of Ill. v. Booher, 3859

• Decision Date: 01 July 1964
• Docket Number: No. 3859,3859
• Citation: 166 So.2d 222,10 A.L.R.3d 458
• Parties: RELIANCE MUTUAL LIFE INSURANCE COMPANY OF ILLINOIS, Appellant, v. Thelma W. BOOHER, Appellee.
• Court: Florida District Court of Appeals

Page 222

166 So.2d 222

10 A.L.R.3d 458

RELIANCE MUTUAL LIFE INSURANCE COMPANY OF ILLINOIS, Appellant, v. Thelma W. BOOHER, Appellee.

No. 3859.

District Court of Appeal of Florida, Second District.

July 1, 1964.

George N. Meros, of Meros & Wilkinson, St. Petersburg, for appellant.

Louis C. Deal, of Robinson, Robinson & Deal, St. Petersburg, for appellee.

SMITH, Chief Judge.

The plaintiff-appellee, Thelma W. Booher, brought an action for a declaratory judgment and other relief, requesting that the Court determine whether or not the defendant insurance company is liable for certain medical expenses incurred by her as a result of injuries she suffered in an automobile accident. The insurance policy in question insured the plaintiff against loss due to medical expense resulting from accidental bodily injury and it contained the following proviso: 'provided that such expense shall be incurred within 52 weeks from the date of such injury.' The trial court found that the quoted proviso was susceptible of more than one meaning or interpretation, and it construed the proviso to mean that if the expenses were brought on, occasioned, or caused within 52 weeks from the date of injury, then the liability for such expenses arose within the time limit. On this premise the court entered judgment for the plaintiff, from which the insurance company appeals. The plaintiff has filed cross assignments of error.

The facts essential to decision are not in dispute. The plaintiff received facial injuries in an automobile accident on October 4, 1959. The original emergency operation could only suture the 'flaps' down. The plaintiff's face was disfigured as a result of the accident. She consulted a plastic surgeon, who advised that further operations could not be commenced until the flesh had begun settling and had partially healed. In May of 1960, plaintiff 'engaged or employed the surgeon to perform the necessary reconstructive surgery.' Operations were performed on May 17 1960, for which the plaintiff was hospitalized through May 21; on November 22, 1960, for which the plaintiff was hospitalized through November 24; and finally on July 26, 1961. In the trial court the insurance company contended that it was not liable for any of the reconstructive surgery because it was not a necessary service and because the expenses of such surgery were not incurred within the 52-week time limit. On appeal, however, the insurance company contends only that the court erred in its interpretation of the time limit provision of the policy. It is urged that the court, in interpreting the policy, in effect re-wrote the parties' contract so that the insurance company would be liable for all expenses no matter when incurred, if the necessity for the expenses manifested itself within 52 weeks from the date of the injury. The insurance company contends that this interpretation is entirely outside the language of the policy and that the lower court's construction is neither reasonable nor equitable. The parties state that they have been unable to find any decision in Florida construing such a provision in an insurance policy, and our independent research has disclosed none. With respect to the general rules governing the construction of insurance contracts, the parties are in agreement. Terms in an insurance policy which are ambiguous, equivocal or uncertain, to the extent that the intention of the parties is not clear and cannot be ascertained by the application of ordinary rules of construction, are to be construed strictly and most strongly against the insurer; however, if the language is clear and unambiguous the court should give the language its natural meaning. See James v. Gulf Life Ins. Co., Fla.1953, 66 So.2d 62.

We find that the words 'provided that such expense shall be incurred within 52 weeks from the date of such injury' are clear and unambiguous. 'Incur' is defined by Webster as follows: 'To meet or fall in with, as something inconvenient or harmful; become liable or subject to; to bring down upon oneself; as, to incur debt, danger, displeasure, penalty, etc.' As used in the insurance policy here involved, the words contained in the proviso mean that the insured must have actually paid or must have become liable for the payment of such expense within 52 weeks from the date of the injury which necessitated the expense. The plaintiff's engagement of the services of the surgeon to perform the necessary reconstructive surgery, although admittedly made during the 52-week period, was not the incurring of an expense at that time, for at that time the fees of the surgeon were neither understood nor agreed upon. The first operation was performed within the 52-week period, and the expense of that operation with resultant hospitalization was incurred prior to the termination of the 52-week period. At the time of the expiration of the 52-week period the plaintiff had not incurred any expenses for medical services to be rendered in the future. An expense is the same as a debt, and it has been incurred when liability for payment attaches. A contingent expense has been incurred when the contingency upon which the payment depends has occurred. Stuyvesant Insurance Co. of New York v. Nardelli, 5 Cir. 1961, 286 F.2d 600. The plaintiff's engagement of the services of the surgeon for his future services constituted a contingent promise to pay for his services, and the expense was not incurred until the contingency occurred, which was the surgeon's performance of the services.

Provisions agreeing to pay for loss incurred by medical expenses within a fixed period of time from the date of the accident or injury necessitating the medical expense are contained in many types of insurance policies. ¹ There are several decisions construing such provisions. Drobne v. Aetna Casualty & Surety Co., Ohio App.1950, 115 N.E.2d 589; Maryland Casualty Company v. Thomas, Tex.Civ.App.1956, 289 S.W.2d 652; Herold v. Aetna Life Ins. Co., Tex.Civ.App.1935, 77 S.W.2d 1060; Pilot Life Insurance Company v. Stephens, 1958, 97 Ga.App. 529, 103 S.E.2d 651; Czarnecki v. American Indemnity Company, 1963, 259 N.C. 718, 131 S.E.2d 347; Kirchoff v. Nationwide Mutual Insurance Company, 1963, 19 A.D.2d 638, 241 N.Y.S.2d 185. These decisions must be examined in the light of the language of each policy and the facts in each case. When so examined, the conflicts become more apparent than real. For instance, in the Drobne and Thomas cases, the insured employed or engaged the doctor's services by a binding contract before the expiration of the policy's period of limitation and paid in advance or became obligated to pay for medical care. On this basis, the expenses in each case were found to have been incurred prior to the expiration of the fixed period. By contrast, in the Herold, Stephens and Czarnecki cases, there had been no contractual employment or prepayment during the period of time specified in the policy. In the Kirchoff case, the company's liability was further restricted because the policy contained an explicit definition of the...