Roy v. Allstate Ins. Co.

• Citation: 383 A.2d 637,34 Conn.Supp. 650
• Decision Date: 01 April 1978
• Docket Number: No. 338,338
• Court: Superior Court of Connecticut
• Parties: Aurelian ROY v. ALLSTATE INSURANCE COMPANY.

Page 637

383 A.2d 637

34 Conn.Supp. 650

Aurelian ROY v. ALLSTATE INSURANCE COMPANY.

No. 338.

Superior Court of Connecticut, Appellate Session.

Argued Jan. 20, 1978.

Decided April 1, 1978.

John W. Lemega, Hartford, for appellant (defendant).

James J. Szerejko, Hartford, for appellee (plaintiff).

ANTHONY J. ARMENTANO, Judge.

In consideration of an annual premium of $36 the defendant issued to the plaintiff a policy of insurance providing certain accidental death and dismemberment benefits. The plaintiff made a claim for accidental dismemberment benefits which the defendant refused to pay and this action was brought. After a trial to the court, judgment was rendered for the plaintiff from which the defendant has appealed.

The trial court's finding reveals that on May 22, 1973, while an accidental death and dismemberment policy issued to the plaintiff by the defendant was in effect, the plaintiff suffered an accidental injury to his right eye. As a result of the injury the plaintiff sustained corneal abrasions, traumatic hyphema, traumatic dislocation of the right lens and secondary glaucoma to the right eye. When the plaintiff returned to work, approximately five weeks after the accident, he had no vision in his right eye. On November 7, 1973, a traumatic cataract was surgically removed from the plaintiff's right eye.

In April or May of 1974 the plaintiff was fitted with a contact lens. At that time the plaintiff could wear the contact lens for a maximum of four hours a day. The contact lens allowed the plaintiff to have some vision in his right eye. Shortly after the contact lens was fitted but subsequent to May 22, 1974, however, the plaintiff stopped wearing the lens because he was unable to get used to it. As of May 28, 1974, a doctor who had examined the plaintiff concluded that his eye injury amounted to a permanent disability. Another doctor reported that, should the plaintiff be unable to tolerate wearing the contact lens, for whatever reason, his right eye would be of little functional value.

The policy issued by the defendant to the plaintiff provided for the payment of $2500 for the loss of the sight of one eye. The policy defined "loss" to mean the "total and irrecoverable loss of (the) entire sight of (an) eye." The policy further provided that the total and irrecoverable loss of sight had to result within 365 days after the date of an accident occurring while the policy was in effect.

The primary issue raised by this appeal is whether the trial court erred in concluding that the plaintiff sustained a loss within the coverage provided by the insurance policy issued by the defendant. The defendant argues that, although the plaintiff may have sustained a total loss of sight within 365 days after the accident, he did not sustain an irrecoverable loss of sight because his sight was "restored" by the use of a prosthetic device within the 365-day period.

"( A)n insurance policy is a contract to be interpreted and enforced in accordance with the real intent of the parties. Lyon v. Aetna Casualty & Surety Co., 140 Conn. 304, 307, 99 A.2d 141. The language used in the policy must be given its ordinary meaning unless some special or technical meaning is intended. Ibid.; Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 513, 123 A.2d 755." Rathbun v. Aetna Casualty & Surety Co., 144 Conn. 165, 168, 128 A.2d 327, 329. In considering the meaning of the phrase "irrecoverable loss of sight," we must ascertain the meaning of the contract which the insured would reasonably expect; see Lewis v. Metropolitan Life Ins. Co., 65 Mich.App. 279, 237 N.W.2d 289; and consider the intent of the insured in procuring the insurance. Morgan v. Prudential Ins. Co., 86 Wash.2d 432, 545 P.2d 1193.

It has been held generally that policies which insure against the total and irrecoverable loss of entire sight protect the insured against the irrecoverable loss of the practical use of sight. Locomotive Engineers Mutual Life & Accident Assn. v. Vandergriff, 192 Ark. 244, 91 S.W.2d 271; Clark v. Standard Accident Ins. Co., 43 Cal.App.2d 563, 111 P.2d 353; Lewis v. Metropolitan Life Ins. Co., 397 Mich. 481, 245 N.W.2d 9; annot., 87 A.L.R.2d 481, 486-94; 15 Couch, Insurance (2d Ed.) § 53:25. "Practical use does not necessarily mean use in a particular calling or occupation, but rather that use which will render practical service in respect to many needs and pleasures." Clark v. Standard Accident Ins. Co., supra, 567, 111 P.2d 355. Recently, the word "irrecoverable," as used in an insurance contract similar to the one in this case, was defined to mean "not able to regain, (put back to a former state, or recapture)." Equitable Life Assurance Society of the United States v. Short, 332 N.E.2d 273, 277 (Ind.Ct.App.). Therefore...