Whitlock v. Old Am. Ins. Co.

• Decision Date: 06 June 1968
• Docket Number: No. 11019,11019
• Citation: Whitlock v. Old Am. Ins. Co., 442 P.2d 26, 21 Utah 2d 131 (Utah 1968)
• Parties: d 131 Opal WHITLOCK, Plaintiff and Respondent, v. OLD AMERICAN INSURANCE COMPANY, a corporation, Defendant and Appellant.
• Court: Utah Supreme Court

Page 26

442 P.2d 26

21 Utah 2d 131

Opal WHITLOCK, Plaintiff and Respondent, v. OLD AMERICAN INSURANCE COMPANY, a corporation, Defendant and Appellant.

No. 11019.

Supreme Court of Utah.

June 6, 1968.

Patrick H. Fenton, Cedar City, for defendant and appellant.

J. Harlan Burns, Cedar City, for plaintiff and respondent.

CROCKETT, Chief Justice:

Defendant insurance company appeals from an adverse jury verdict, holding it liable under an accident policy for the death of the plaintiff's husband. Its contention is that he did not die from an accident but from a disease.

In April of 1961, Arthur Whitlock, then 54 years of age, in response to a newspaper advertisement, obtained a policy from the defendant company which provided varying compensation for stated injuries and for loss of life resulting from accident. On September 24, 1962, while the policy was in force, his son Sidney was taking him from their home in Enterprise to Cedar City when the car was involved in an accident, causing serious injuries to its occupants. Dennis Jones, his son's boy friend, was killed and Mr. Whitlock received a brain concussion, was hemorrhaging and had severe swelling on the right side of his head. He was taken by ambulance to Cedar City, where he was hospitalized. He did not respond to treatment and did not react normally to his family and surroundings, but lingered until October 18, 1962, when he passed away.

Viewing the facts just stated in the light favorable to the verdict ¹ would seem to establish plaintiff's right to recovery without question. But there is a critical problem in this case arising from defendant's contention that the death of Arthur Whitlock resulted from a disease and not from accident, and that it is therefore not liable because of a provision contained in its policy, Part Three, entitled Exclusions:

This policy does not cover any loss or disability resulting directly or indirectly, in whole or in part, from (a) any mental or bodily sickness or disease * * *

The evidence bearing on this issue is that the year following the issuance of the policy, early in 1962, Mr. Whitlock was found to have cancer and in May of that year had one lung removed. The prognosis by the doctor was that he felt that Mr. Whitlock had about two years to live. He returned to his home in Enterprise, Utah, and lived a comparatively normal life, with limited activity. It was four months after the operation, while his son was taking him into Cedar City for a physical checkup, that their car was involved in the accident above referred to.

In arguing that the court should have ruled as a matter of law that the plaintiff was precluded from recovery, the defendant places reliance on the foregoing facts, supplemented by the further facts that the death certificate and the report of Dr. Graff, submitted to the defendant, listed cancer of the lung as the cause of death. However, as opposed to this, a later report submitted by the doctor listed brain injury as the cause; and in his testimony at the trial, Dr. Graff contradicted the death certificate by disclaiming any definitive knowledge that the cause of death was lung cancer, and stated in substance that inasmuch as no autopsy was performed, he was not certain as to whether Mr. Whitlock's death resulted from lung cancer, or from the injuries he received in the accident, or a combination of both.

Assuming the death certificate and the doctor's first report to be authentic and signed by him, this does not necessarily conclusively establish the fact. ² In Griffin v. Prudential Ins. Co., this court affirmed the rule that even though the information on a death certificate is prima facie evidence of the facts therein stated, it is 'elementary that evidence of that type may be explained or contradicted by competent evidence.' ³

The opinion of the doctor is likewise not necessarily conclusive. The information shown upon the death certificate, the doctor's report, and the doctor's testimony are all evidence to be considered by the jury, along with all of the other facts shown in evidence, in determining the cause of death, which determination of fact is their exclusive prerogative. In that connection it is well to have in mind the burden of proof as to the problem here presented: Where a loss occurs which normally would be compensable under an insurance policy, and the company asserts a defense of noncoverage on the ground of an exception stated in the policy, the general rule of insurance law is that this is in the nature of an affirmative defense; and that the company has the burden of proving by a preponderance of the evidence that the loss comes within the exception stated in the policy. ⁴ Thus if the evidence is such that reasonable minds could remain unpersuaded that the cancer was the proximate cause of Mr. Whitlock's death, then the trial court was justified in refusing to direct such a finding. ⁵

The defendant's argument seems to amount to this: Even though a person insured under an accident policy dies following an injury suffered in an accident, if he had any diseased condition which in any degree contributed in causing his death, in that a more robust person would not have died from that injury, recovery is prevented by the exception in its policy. If this narrow restriction were accepted and followed to its logical conclusion it would in practical effect substantially cut away accident insurance coverage for people over middle age. A high percentage of them have some frailty or affliction from which they would die eventually and because of which an injury might more readily result in death than it would to a person not so afflicted. If this would prevent recovery under an accident policy the insurance sold to cover accidents would be but an illusion and acceptance of the premiums a fraud. It is to avoid that unrealistic and unjust result that in enforcing such policies courts insist on taking a fair and practical view of what must have been the intent of the parties in entering into such a contract.

In the usual situation the insured makes application for a policy which is described to him in general terms. He seldom sees it until it is issued and delivered to him. He is not acquainted with its numerous refinements and particularly the exclusions from coverage. For this reason the rule of strictissimi juris has been applied almost universally to insurance contracts, giving a liberal construction in favor of the insured toward the coverage which the insured reasonably could assume he is buying and for which he pays his premium. We have heretofore held that the insured is entitled to the broadest coverage he could reasonably understand from the policy. ⁶

It is appreciated that insurance companies in issuing these accident policies make perfectly legitimate efforts to so word them as to exclude death caused by disease and to cover only death caused by accident. Notwithstanding differences in wording in attempting to accomplish that objective, it is generally held that insofar as coverage for accident is concerned, the insurer takes the insured as he is; that even though he may have some diseased condition which would eventually result in his death, or that the injury would not have resulted in death to a more robust person, if an accident occurs which hastens his death, recovery can be had under the policy. The critical question to be determined is whether the real and efficient cause, or as sometimes stated, the proximate cause of death was the disease, or the accident, ⁷ and where the evidence would reasonably permit a finding either way, the issue is for the jury.

Instructive in the instant situation is the...