Russell v. Prudential Insurance Company of America

• Decision Date: 10 March 1971
• Docket Number: No. 29361.,29361.
• Citation: 437 F.2d 602
• Parties: John R. RUSSELL, Plaintiff-Appellee, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

437 F.2d 602 (1971)

John R. RUSSELL, Plaintiff-Appellee, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.

No. 29361.

United States Court of Appeals, Fifth Circuit.

January 25, 1971.

Rehearing Denied March 10, 1971.

COPYRIGHT MATERIAL OMITTED

Donald O. Collins, of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendant-appellant.

Reginald T. Badeaux, Jr., J. Michael Cumberland, Badeaux & Discon, New Orleans, La., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

The central issue on this appeal is whether the insured was totally disabled within the terms of Prudential's group disability insurance policy.

After serving six years as a salesman for Georgia-Pacific Corporation, John R. Russell was promoted in 1958 to the position of manager of the company's distribution center in New Orleans, Louisiana. As the center's manager, Russell had complete responsibility for personnel (25 to 30 persons), sales, purchasing, inventories, customer relations, and contract negotiations. During his tenure as manager, Russell elected to take out disability insurance with the Prudential Insurance Company of America under a contract which in pertinent part provides as follows:

"`Total Disability\'

(a) During the portion of any period of disability not exceeding the Initial Duration (schedule determination) `total disability\' means the complete inability of the Employee due to sickness or injury to perform any and every duty pertaining to his occupation with the Policyholder;

In no event, however, shall `total disability\' exist for any purpose of this Rider during any period in which the Employee (i) is engaged in his or any other gainful occupation, * * *".

The physical infirmities which form the basis of this action for disability benefits began in 1953 and 1954 when Russell underwent two operations on his esophagus resulting in a permanent gastrointestinal abnormality which causes weakness after eating and inability to sleep comfortably and normally. In 1965 Russell was hospitalized and put into traction for cervical osteoarthritis, a condition whereby the disks between the neck vertebrae degenerate causing pain in varying degrees of severity. The condition persisted and Russell used a home traction set, a cervical collar, and muscle relaxants in an attempt to relieve the pain. Later in 1965 the insured was struck with inflammation of the optic nerve (optic neuritis) which permanently damaged his eyesight so that reading for long intervals or under mental pressure caused undue fatigue. Finally, the insured had a gall bladder operation in the summer of 1966, and in December of that year he was dismissed from his job at Georgia-Pacific because insufficient attention was being given to various aspects of the business and also because the profits of the New Orleans branch were not as high as the company anticipated.

Three months after his discharge the insured found work as a sales consultant for Pascagoula Veneer Company, a company engaged in a wood products business similar to that of Georgia-Pacific. This position lasted for three months and then terminated when the insured was injured in an automobile accident.

Subsequently, in June of 1967, the insured filed a disability claim with Prudential Insurance Company asserting that he suffered total disability while employed by Georgia-Pacific and that he was entitled to twenty-four monthly payments to commence six months from the date of employment termination according to the terms of the policy. Prudential, however, remained steadfast in its refusal to honor the claim even after requesting and receiving an attending physician's report on the insured's medical condition during his employment at Georgia-Pacific. The insured filed suit for the benefits in December, 1967.

In this same month the insured was employed as a salesman at Evans Products Company but the job ended ten months later when the insured was unable to successfully handle the work.

After a trial before the district court, the trial judge held that, despite the thirteen months' employment with Pascagoula Veneer Company and Evans Products Company, the insured was totally disabled within the policy definition and thus entitled to recover twenty-four months of disability payments plus penalties and attorney's fees as provided in Louisiana Revised Statutes § 22:657. We affirm.

The law is now well settled in Louisiana as elsewhere that the term "total disability" does not mean absolute helplessness on the part of the insured; benefits may be recovered where the insured cannot perform all the substantial and material acts necessary to the prosecution of his business or occupation in the usual and customary manner. Rambin v. Continental Casualty Company (1966), La.App., 186 So.2d 861; Scalia v. Travelers Insurance Company (1968), La.App., 210 So.2d 373. See also Couch On Insurance, § 53:67, 2d ed. ( ); Vol. 1A, Appelman, Insurance Law and Practice, § 651 (1965). Appellant Prudential vigorously maintains this well-established rule does not apply to the case at bar for the reason of the provision in the policy which prohibits disability benefits when the insured is "engaged in his or any other gainful occupation". By becoming employed on two separate occasions, first with Pascagoula Veneer Company and then with Evans Products Company, Prudential argues the insured obtained "gainful employment" and thereby removed himself from coverage under the policy. We cannot accept such an interpretation. Starting with the proposition that ambiguous language must be construed strictly against the insurer, see, e. g., Rambin v. Continental Casualty Company, supra, we construe the phrase "his or any other gainful employment" to refer to a denial of benefits only when the insured obtains other work either identical to or substantially the same as the type of employment initially covered by the policy. Thus, Russell's employment subsequent to his discharge from Georgia-Pacific was not gainful and does not prevent his recovery of disability benefits unless the employment was similar in responsibility and remuneration to his position as manager of the Georgia-Pacific distribution center in New Orleans.¹

Regarding Prudential's contention that Russell's employment after his discharge from Georgia-Pacific was substantially the same as his work as manager of the distribution center, thus preventing a disability qualification, we find the language of the district court particularly dispositive of the issue. The post-discharge employment was "essentially consultive in nature rather than administrative, and did not involve as much responsibility as did the position with Georgia-Pacific". More specifically, the court held the employment "entailed no responsibility for personnel, inventories, profits, collections, or other similar administrative functions, allowed greater flexibility in time, and involved almost no paper work". Cognizant of our duty...