Hodge v. Provident Life & Accident Insurance Co.

664 S.W.2d 297, 1983 Tenn. App. LEXIS 655
CourtCourt of Appeals of Tennessee
DecidedNovember 9, 1983
StatusPublished
Cited by8 cases

This text of 664 S.W.2d 297 (Hodge v. Provident Life & Accident Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hodge v. Provident Life & Accident Insurance Co., 664 S.W.2d 297, 1983 Tenn. App. LEXIS 655 (Tenn. Ct. App. 1983).

Opinion

HIGHERS, Judge.

The plaintiff (Hodge) brought suit against Provident Life and Accident Insurance Company (Provident) and Protective Life Insurance Company (Protective), alleging that one or both of these companies owed him disability benefits under a group policy of insurance procured through his employment with the Deutz Corporation in Memphis.

The Deutz Corporation maintained group insurance with Protective until April 1, 1975. On that date the coverage was assumed by Provident.

Hodge suffered a heart attack on February 1, 1975, and he was admitted to the hospital on February 5. He returned to his job on a part-time basis as operations manager of the Memphis office of the Deutz Corporation on March 1, but was readmitted to the hospital from March 4 to 12 for treatment of angina pectoris. He was hospitalized again from April 6 to 9. From the beginning of May, Hodge returned to work on a full-time basis. He was advised by his physician to undertake no emotionally stressful or physically strenuous activity. His supervisor at work had already delegad ed some of Hodge’s duties to other employees. At this same time, however, Hodge did assume the responsibilities of one of the employees who had left the company.

On August 6, 1975, Hodge was again admitted to the hospital after a serious episode of nausea and vomiting. After his return to work, he was relieved of his job as operations manager but was allowed to continue on the payroll as a consultant with no specified responsibilities. He remained in this status until the Memphis office of the Deutz Corporation was closed in July 1976 at which time he instituted this action for disability benefits.

It is the position of Provident that total disability occurred in February 1975 at the time of the heart attack and that Protective is liable for all claims. Protective, on the other hand, contends that total disability [299]*299did not commence until August 1975 and that Provident is solely liable.

The Chancellor, sitting without a jury, made findings in the case which included the following:

The Court finds that the plaintiff could no longer perform the duties of his occupation after his angina attack on August 6, 1975, and that such incapacity continued until the time of the hearing. The Court further finds that it is the contention of the plaintiff that he has sustained a disability permanent in nature, as the result of his myocardial infarction in early February, 1975, and the ischemic heart disease with angina pectoris from which plaintiff has continued to suffer, and the Court so finds from all the proof that the plaintiff has in fact sustained a disability permanent in nature, and that this disability is such that he is and will be unable to engage in any business or occupation or to perform any work for compensation, gain or profit for which he is reasonably fitted by education, training or experience, and that such condition is permanent. Though the myocardial in-farcation resulted in physical damage to plaintiff (before the termination of Protective’s coverage), the extent of disability did not reach the full stage of totality and permanence until August, 1975, during the period of Provident’s coverage.

The findings of fact by the trial court without a jury are presumed to be correct unless, it is found upon a de novo review of the record, that a preponderance of the evidence indicates a contrary conclusion. Rule 13(d), T.R.A.P. Thus, the issue before this Court is whether the evidence preponderates against the finding of the Chancellor that total disability within the meaning of the policy did not occur until August 1975.

In reviewing the finding of the Chancellor it must be noted that Hodge returned to work on a full-time basis on May 1, 1975, and that he continued in that capacity through May, June, and July, working sometimes from ten to eleven hours per day. With respect to his duties during this period of time, Hodge gave the following testimony:

Q. During the period of May, June, and July, did you perform the functions of your job as Operations Manager?
A. Yes, sir, I did.
Q. Did you perform on a full-time basis?
A. Yes, sir, I did.

Further, the treating physician testified that the disability was formed “somewhere in the summer of ’75.... ”

The policy of Protective defined total disability as “the continuous inability of an Employee to engage in each and every occupation or employment for wage or profit for which he is reasonably qualified by education, training, or experience.” In Allen v. Paul Revere Life Insurance Company, 57 Tenn.App. 650, 423 S.W.2d 504, 508 (1967), the Court stated:

Generally, and it is a common-sense application of the policy provisions, “where an accident policy includes the element of continuity and undertakes to insure only for loss resulting from injuries that ‘continuously’ disable insured, that ‘continuously’ means regularly, protracted, enduring, and without any substantial interruption of sequence, as distinguished from irregularly, spasmodically, intermittently or occasionally. ‘Continuously’ does not mean constantly, nor does it denote ceaseless and absolute continuity. Thus, under such a policy, the continuity of the disability is not broken by the fact that insured returns to his work at long intervals, and for only short periods, while still suffering from the injury; but the continuity is broken where insured for protracted periods after the injury performs his regular duties.” 45 C.J.S. Insurance § 901(d), p. 995.

Provident contends that Hodge returned to work as an experiment to determine the extent of his disability and that his return to work does not of itself settle the question of whether he was totally disabled. We agree that his return to work was not conclusive of the question, but it is “a factor to be considered in determining if [300]*300he, in fact, was ‘continuously totally disabled’ as required by the policy.... ” Allen v. Paul Revere Life Insurance Company, supra. The trier of fact could consider his return to work, how long he remained in place, and what type of duties he performed, along with all other factors in the case including the testimony of Hodge himself, the medical evidence, and the testimony of others, in determining the point at which he became totally disabled. The fact that he returned to his employment for three full months, doing substantially his regular work, and that he worked continuously during this period, indicates more than a return “at long intervals, and for only short periods.” We are of the opinion that the evidence does not preponderate against the finding of the Chancellor that Hodge did not become totally disabled until August 1975 at which time Provident afforded coverage under its policy.

Our attention has been directed to Continental Casualty Company v. Equitable Life Assurance Society of the United States, 52 N.Y.2d 228, 437 N.Y.S.2d 279, 418 N.E.2d 1298 (1981), which is described as a “shared liability” case, and we have been urged by appellee Hodge’s brief to adopt its rationale.

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664 S.W.2d 297, 1983 Tenn. App. LEXIS 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodge-v-provident-life-accident-insurance-co-tennctapp-1983.