Rigel v. National Cas. Co.
| Citation | 76 So.2d 285 |
| Parties | Edward M. RIGEL, Appellant, v. NATIONAL CASUALTY COMPANY, a corporation, Appellee. |
| Decision Date | 07 December 1954 |
| Court | United States State Supreme Court of Florida |
Richard W. Rodgers, Miami, for appellant.
Knight, Smith & Underwood, Miami, for appellee.
The chancellor dismissed the appellant's bill and this appeal followed.
From the allegations of the bill and the exhibit, we take the facts upon which the appellant relied to support not only a declaratory decree but a judgment for the amount claimed by him from the appellee under an insurance policy. The appellant held appellee's policy indemnifying him against expenses for hospital care and nursing services that might be incurred by reason of the illness of the appellant or any member of his family. Appellant's wife developed carcinoma of the left breast and the claim for her expenses was paid. Then the policy was cancelled. Later the insurance company revived the policy when the appellant signed a 'special agreement' to be attached to the contract reading:
'To induce the National Casualty Company to issue (or if it be already issued then to continue) its policy of above number, notwithstanding the fact that I have heretofore suffered from Carcinoma of the left breast, I hereby agree to relieve the Company from any liability for any loss sustained by me from Carcinoma or any disease of the breasts and/or operation therefor and that no amount shall be payable to me therefor * * *.' (Italics supplied.)
More than two years later the appellant's wife was treated in the hospital for a primary carcinoma of the stomach or intestine, and underwent a surgical operation for relief from the disease. The appellee rejected the claims for the costs of hospitalization and operation during the second illness on the ground that the rider we have quoted relieved it from liability.
The appellant claimed that the rider, prepared by the appellee, was ambiguous; sought an interpretation holding the company liable, and a judgment for the amount found to be due.
The appellee moved to dismiss the bill on the grounds, among others, that the terms and provisions of the policy and rider were 'plain and unambiguous' and that no claim was stated upon which relief could be granted.
The appellant presented his motion for a decree on the pleadings, consisting only of the bill and the motion to dismiss, and the chancellor then held that the language of policy and rider was clear 'in the light of the facts alleged in the bill.' Just what averments in the bill aided him to his conclusion is not clear because the rider itself disclosed the first experience of appellant's wife with carcinoma.
We will not pause to discuss the procedure the appellant followed in seeking a summary decree at this particular stage of the case, or to determine his point that the chancellor erred in deciding the primary issue at the very time that the appellant was asking for an adjudication. Certainly he could not seek a decision at that stage of the case and then complain that the adverse ruling was premature. In his motion for decree on the pleadings, the appellant, in effect, had asked the court to consider the motion to dismiss as an answer.
Without further comment on the procedure, we now decide the issue.
Once the chancellor concluded the question of ambiguity he decided that the agreement clearly expressed an intent of the parties that there would be no liability 'for carcinoma, irrespective of what part of the body may be affected, as well as 'any...
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