Turner v. Mutual Ben. Health & Acc. Ass'n

• Decision Date: 18 March 1957
• Citation: 160 N.Y.S.2d 883,5 Misc.2d 524
• Parties: Price G. TURNER, Plaintiff, v. MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION, Defendant.
• Court: New York Supreme Court

Page 883

160 N.Y.S.2d 883

5 Misc.2d 524

Price G. TURNER, Plaintiff, v. MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION, Defendant.

Supreme Court, Special Term, Oneida County.

March 18, 1957.

Harold M. Hartness, Whitesboro, for plaintiff.

Hubbard, Felt & Fuller, Utica, for defendant.

DEL VECCHIO, Justice.

This is a motion for summary judgment in an action to recover on a health and accident policy issued February 26, 1945 by defendant-movant.

By the insurance contract defendant agrees to pay benefits for total disability resulting from accidental injury at the rate of $150 per month until the insured attains age 60 years and thereafter at the rate of $75 per month so long as total loss of time continues. Payments for partial disability from accidental injury are at the rate of $60 per month for a maximum of three consecutive months. With regard to disability resulting from sickness, rather than accidental injury, the policy provides for payment for confining total disability at $150 per month until the insured reaches age 60 and thereafter at $75 per month so long as the confinement remains continuous, and for non-confining total disability at $75 per month during total loss of time not to exceed three continuous months.

The complaint alleges that while the policy was in full force and effect on January 1, 1946 plaintiff sustained an accident 'in that the exhaust mechanism of the truck he was driving and operating became broken and discharged noxious gases of which plaintiff was unaware, into the compartment of said truck where plaintiff was riding, causing grievous and permanent injury to plaintiff's lungs', as a result of which he has since been wholly and continuously disabled thus sustaining a total loss of time. The complaint demands judgment for $12,150, being the payments allegedly due under the total accidental disability provision of the insurance contract, less the sum of $600 admittedly received by plaintiff since January 1, 1946.

It appears without dispute that in January 1946 plaintiff filed with defendant an 'application for sickness benefits', previously furnished him by defendant in which he described his condition as 'coughing, headache, difficult breathing' commencing on January 2, 1946 when he was employed as a truck driver, which employment ceased on account of his condition about January 10, 1946. Accompanying the application was a statement signed by plaintiff's attending physician certifying a diagnosis of bronchial asthma for which plaintiff had first consulted him on January 11, 1946, and a statement by the employer, Keeshin Motor Express Company, that plaintiff 'quit work entirely on account of this illness on January 10th, 1946'. Nowhere in the application was there any reference to or description of any accident causing his condition. Both plaintiff and his physician estimated that he would be able to return to work about February 4, 1946.

On March 1, 1946 plaintiff was still disabled and wrote to defendant requesting that $25.50 be deducted from his claim for sickness benefits and applied to the premium on his policy.

On March second plaintiff and his physician filed a further report substantially repeating the statements contained in the original application for benefits, with the exception of the estimated date for return to work.

On March 27, 1946 defendant's agent and claim adjuster, John E. Van Bloom, called at plaintiff's home and discussed his benefits under the policy. At that time Van Bloom, according to his own affidavit, 'informed him (plaintiff) that under the policy he would not be eligible for disability payments due to the reported sickness beyond April 21st, and that since he claimed that he was still totally disabled on a non-confining basis and expected to continue so for several weeks, we would, if he so desired, settle with him at that time in full by paying him the amount already accrued, plus the amount that would accrue up to April 21st, 1946.' Upon plaintiff's consent, Van Bloom issued checks totalling $275, one of which was for $25.50 which plaintiff redelivered to Van Bloom in payment of his premium and the other for $249.50 was retained and cashed by plaintiff. The latter check contained the following provision:

'Pay Two hundred forty nine and 50/100 dollars ($249.50) to the order of Price George Turner in full settlement of all liability of the Mutual Benefit Health and Accident Association under Policy No. 154 S 72404-45 because of illness or injury sustained by payee on or about January 10, 1946.'

In June 1946 plaintiff filed and received payment of $40 on a claim for accidental disability benefits arising from his stepping on a nail on May 23, 1946. The application stated that plaintiff was self-employed as a plumbing and electrical worker and that he was 'totally disabled' and 'unable to work' from May 24, 1946 to May 31, 1946.

A third claim under the policy was filed in May of the following year when plaintiff made application for sickness benefits based on sciatic pains of the wrist, hip and leg. Plaintiff's occupation was described on the application as plumbing work--self-employed in which he stated he had steady employment at the time of his illness. His final report stated that he was confined to his house from April 3, 1947 to May 23, 1947 and would be able to resume part of his work on June 11, 1947. For the foregoing claim plaintiff received benefits in the amount of $292.50.

Sometime in 1949 an attorney called at defendant's office with regard to receipt of further benefits by plaintiff as a result of the events occurring in January 1946. However, it does not appear that anything further was done at that time nor until the commencement of the present action early in 1953.

Following a pre-trial examination of plaintiff in September 1956, during which he admitted substantially all of the foregoing facts regarding claims and payments under the policy, defendant has moved for summary judgment dismissing the complaint on the following grounds:

(1) That plaintiff failed to give defendant required notice of the alleged accident within the time provided by the policy;

(2) That plaintiff failed to file affirmative proof of loss within the time provided by the policy;

(3) That plaintiff failed to bring the present action within the time limited by the policy;

(4) That defendant has paid in full all moneys due to plaintiff under the policy;

(5) That plaintiff has executed a release for a valid consideration discharging defendant from all liability arising out of the matters alleged in the complaint;

(6) That the parties have effected an accord, satisfaction and compromise of the claims alleged in the complaint.

As to the first alleged ground for the present motion: The insurance contract in question contained the following Standard Provision as then required by Insurance Law, § 164, subd. 3(d)(C):4:

'4. Written notice of injury or of sickness on which claim may be based must be given to the [Association] within twenty days after the date of the accident causing such injury or within ten days after the commencement of disability from such sickness. * * *'

Defendant's affidavits and memorandum of law stress repeatedly the fact that the company--at least until the commencement of this action--had never received any notice of the alleged accident occurring on or about January 1, 1946 giving rise to plaintiff's claimed permanent disability. A careful reading of the above clause makes it clear however that no such advice was required. The contract provides for notice of injury, not--as defendant asserts--notice of the fact of the accident giving rise thereto. If there were any ambiguity in the contract, it would be resolved against the company issuing it. Janneck v. Metropolitan Life Ins. Co., 162 N.Y. 574, 57 N.E. 182; Silverstein v. Commercial Casualty Ins. Co., 237 N.Y. 391, 143 N.E. 231, 35 A.L.R. 32; Hartol Products Corp. v. Prudential Insurance Co., 290 N.Y. 44, 49, 47 N.E.2d 687, 690. However, the language of the policy is plain; all that was required was that defendant be informed of plaintiff's injury.

It is undisputed that plaintiff filed a form with defendant in January 1946 describing his condition and disability. The application contained as complete a description of plaintiff's injury as was known to him, coupled with the statement of his physician detailing plaintiff's condition. The affidavits are in conflict as to the date this was received--plaintiff claiming January 6, 1946 and defendant alleging January 26, 1946--and on this point a factual issue appears to exist. It is agreed however that the form had been given to plaintiff following earlier communication by him with the company. Moreover, defendant accepted the same and treated it as adequate notice upon which to pay benefits under the policy.

The fact that plaintiff may have termed his condition a 'sickness' is not conclusive in determining whether he has complied with the policy requirement of notice. Defendant was advised, insofar as plaintiff was able, as to the nature and extent of the latter's disability; in the view of this Court, the notice was not necessarily rendered invalid because plaintiff characterized his condition as a sickness rather than an injury.

In these circumstances, it may not be said as a matter of law that plaintiff failed to comply with the notice requirement of the insurance contract.

The following cases cited by defendant are not determinative. Burrows v. Loyal Protective Life Insurance Co. (Zeller, J., Chenango Cty., Sept. 25, 1951); Titus v. Travelers Ins. Co., 268 App.Div. 802, 49 N.Y.S.2d 203; Walterman v. Mutual Ben. H. & A. Ass'n, 260 App.Div. 478, 23 N.Y.S.2d 158; Whiteside v. North American Accident Ins. Co., 200 N.Y. 320, 93 N.E. 948, 35 L.R.A.,N.S., 696, are all cases in which no notice of any kind was given to the insurance company until after expiration of the contract period. McKay v. Metropolitan Life...