Harris v. First Assurance Life of America

526 So. 2d 245, 1988 La. App. LEXIS 897, 1988 WL 35566
CourtLouisiana Court of Appeal
DecidedApril 19, 1988
DocketNo. CA 86 1577
StatusPublished
Cited by1 cases

This text of 526 So. 2d 245 (Harris v. First Assurance Life of America) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. First Assurance Life of America, 526 So. 2d 245, 1988 La. App. LEXIS 897, 1988 WL 35566 (La. Ct. App. 1988).

Opinions

LANIER, Judge.

This is a suit in contract seeking monthly disability benefit payments under a group insurance policy and statutory penalties for nonpayment. The insurer answered and asserted the insured’s disability was caused by a sickness that preexisted the policy of insurance and there was no coverage for this claim. The trial court found as a fact that “plaintiff’s disability is the result of generalized osteoarthritis existing before the policy was issued” and rendered judgment in favor of the insurer dismissing the suit. This devolutive appeal followed.

FACTS

The trial court judge found the following facts in his written reasons for judgment:

On April 16, 1982, the plaintiff, James Harris, Jr. purchased disability insurance contract Certificate No. 14990 from defendant, First Assurance Life of America, in conjunction with the purchase of an automobile from McPete Chevrolet in Baton Rouge, Louisiana_ The sub-
ject insurance coverage is a group credit policy and is subject to the provisions, conditions and limitations of the Master Group Credit Insurance Policy that is issued to the selling dealer.
Plaintiff claims to have become disabled in October, 1983, and filed this claim [suit] October 23, 1984. The defendant represents that plaintiffs disability, if any, was caused by a pre-exist-ing condition. This is supported to some degree by the testimony of Dr. Herschel Dean, Dr. Douglas Davidson and the plaintiff himself. Dr. Dean has apparently treated the plaintiff for approximately twenty years. His records reflect that he has treated plaintiff for generalized osteoarthritis throughout the 1970’s. Records from Dr. Dean’s office indicate that in August of 1979, the plaintiff was seen for multiple arthritis complaints that resulted in treatment with pain relievers and anti-arthritic drugs at least since 1979. During 1980, plaintiff was [247]*247seen by Dr. Dean with multiple arthritic symptoms and in 1981 he complained of pain in both his shoulders and chest wall.
Dr. Dean feels that plaintiff was disabled at this time due to generalized osteoarthritis, the same condition that his clinic has been treating Mr. Harris for since the 1970’s.
Dr. Davidson’s treatments to plaintiff was not as extensive but did begin in 1979. His initial diagnosis was generalized osteoarthritis. Treatment of plaintiff continued from 1979 through December of 1981 and his records reflect continuous treatment for that condition.
Plaintiff candidly admitted that his arthritis, including shoulder pain, began prior to the date of the defendant’s coverage which is herein sued upon.
Joseph Rohal, testified on behalf of the defendant regarding the denial of plaintiff’s claim. His testimony included the obtaining and review of the plaintiff’s medical records. Based upon his total information he reached the conclusion and advised the defendant that plaintiff may have indeed become disabled but from a pre-existing and consequently a noncovered condition.

The insurance certificate given to Harris provides, in pertinent part, as follows:

PLEASE READ THIS APPLICATION FOR CREDIT INSURANCE
The Applicant understands and agrees that the following statements and representation are offered to the Company as consideration for the insurance applied for in the amount and on the date shown above and becoming a part of any insurance issued and are a part of the evidence used by the Company to determine insurability of the Applicant. The Applicant further understands that the Company may decline to accept the coverage applied for within ninety (90) days from the effective date. If coverage does not take effect, any premium paid shall be refunded.
I do hereby declare that I am gainfully employed and that within the past SIX MONTHS, I have not consulted or been under the care of a doctor or other practitioner for cancer or any disease of the heart, brain, liver, kidneys, or lungs.
I also hereby declare that I am currently in good health and to be best of my knowledge I do not have any physical or mental impairments.
In the event of my death or disability while this policy is in force, First Assurance Life of America is authorized, on my behalf, to obtain information, documents, records and reports concerning me from any doctor, hospital, clinic, or other medical facility.
(Signature of proposed (Signature — Co-debtor) insured)
CREDITOR-DEBTOR INSURANCE ONLY
In consideration of the above premium, the Company does hereby insure the above named insured subject to the provisions, conditions and limitations of the Master Group Credit Insurance Policy issued to the Creditor named above for the initial amount of Life Insurance stipulated above in the event of death and/or for the monthly benefit stipulated above in the event of disability caused by sickness originating after the date of this policy and while this policy is in force or by accidental bodily injuries suffered while this policy is in force.
[Emphasis added.]

Harris was not given a copy of the Master Group Credit Insurance Policy which contains the following:

Exceptions: The insurance afforded by this Policy does not cover any disability: (1) resulting from pre-existing illness, disease of physical condition (whether or not by name or specific description) of which the applicant for insurance was aware or had been treated for within the six months immediately preceding the effective date of his coverage.

EXTENT OF INSURANCE COVERAGE

(Assignment of Error 1)

Plaintiff contends the exclusion listed in the Master Group Credit Insurance Policy [248]*248should not apply since he was not furnished a copy. Plaintiff further contends the language of the certificate which provides coverage for “disability caused by sickness originating after the date of this policy” is ambiguous when read in conjunction with the declaration by plaintiff that he has not been under a doctor’s care “for cancer or any disease of the heart, brain, liver, kidneys, or lungs.” Plaintiff asserts in brief that “[i]f the insurance company wished to exclude claims under the policy for disability resulting from arthritis then it should have so stated in the policy.” Harris also asserts “degenerative arthritic conditions should not be considered a ‘sickness’ as the term is used in the policy” and the trial court decision that his “disability resulted from a pre-existing condition ... was clearly contrary to the evidence.”

Ambiguity of Coverage

An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Courts are bound to give legal effect to the terms of an insurance policy according to the true intent of the parties, and that intent is to be determined from the words of the contract when they are clear and explicit and lead to no absurd consequences. An ambiguity in a policy of insurance is construed against the insurer and in favor of the insured. Fisher v. Morrison, 519 So.2d 805 (La.App. 1st Cir.1987); Miller v.

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Cite This Page — Counsel Stack

Bluebook (online)
526 So. 2d 245, 1988 La. App. LEXIS 897, 1988 WL 35566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-first-assurance-life-of-america-lactapp-1988.