Kepner v. Durham Life Insurance Co.

596 So. 2d 370, 1992 La. App. LEXIS 706, 1992 WL 47781
CourtLouisiana Court of Appeal
DecidedMarch 17, 1992
DocketNo. 91-CA-1287
StatusPublished
Cited by2 cases

This text of 596 So. 2d 370 (Kepner v. Durham Life Insurance Co.) 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
Kepner v. Durham Life Insurance Co., 596 So. 2d 370, 1992 La. App. LEXIS 706, 1992 WL 47781 (La. Ct. App. 1992).

Opinion

KLEES, Judge.

Defendant, Durham Life Insurance Company (Durham), appeals the judgment of the trial court awarding plaintiff disability benefits, penalties, and attorney fees. After reviewing the record and applicable law, we reverse the portion of the judgment awarding penalties and affirm all other portions of the judgment as amended.

Defendant issued a policy of disability insurance to plaintiff providing for disability benefits in the event that plaintiff should become “totally disabled by reason of accidental bodily injuries or sickness.” The policy defined totally disabled as:

‘Totally disabled’ or ‘total disability’ as used herein means, for the Elimination Period and the first 2 years of any continuous disability for which benefits are payable, the complete inability of the Insured to perform any and every duty of the occupation in which he was engaged immediately prior to commencement of the disability. After payment of benefits for 2 years, if this insurance provides benefits in excess thereof, then for the balance of the period of disability, ‘totally disabled’ or ‘total disability’ means complete inability to perform any duty of any gainful occupation for which the Insured may be reasonably fitted by education, training or experience ... Successive disabilities due to the same related cause or causes shall be deemed one continuous period of disability, unless between cessation and recurrence of such disabilities the Insured has performed the duties of his profession or occupation on a full time basis for at least 6 months.

Plaintiff was engaged in the practice of medicine until 1986 when he became totally disabled due to an arteriosclerotic heart disease. Plaintiff made a claim under the disability policy and was paid benefits of $1200 per month from March 29, 1986 through May 27,1988. Plaintiff was never able to return to his occupation as a physician.

In 1986, plaintiff moved to Mississippi and began developing a blueberry farm. Plaintiff continued to pay the premiums on the disability policy. On January 10, 1989, he filed a second claim for disability benefits under the policy claiming that he became disabled from blueberry farming due to spinal stenosis. In a letter dated May 26, 1989, defendant advised plaintiff that his claim was denied because he did not meet the policy requirements since he had not returned to his profession as a physician and, therefore, a new period of disability had not been established. In a letter dated May 31, 1989, plaintiff was informed that his policy was cancelled. As a result, on December 29, 1989, plaintiff filed suit to recover disability benefits, penalties, and attorney fees. On December 7, 1990, the trial judge ruled in favor of plaintiff and against Durham in the amount of $28,800 in disability benefits for two years, $28,000 in penalties, and $4000 in attorney fees. Defendant appeals. Plaintiff filed an answer to the appeal asking for an additional award of attorney fees for this appeal.

On appeal, defendant argues that the trial judge erred in five respects: (1) the trial judge erred in finding that the policy provided coverage for plaintiff’s alleged disability as a blueberry farmer; (2) the trial judge erred in finding that plaintiff proved he was a blueberry farmer; (3) the trial judge erred in finding that plaintiff proved that he was disabled as of December, 1988; (4) if the appellate court finds that the policy provided coverage to plaintiff and that plaintiff was employed as a blueberry farmer, the trial judge erred in awarding plaintiff $1200 per month for 24 [372]*372months; and (5) the trial judge erred in awarding penalties and attorney fees.

In his first assignment of error, defendant claims that the trial court erred in finding that the policy provided coverage for plaintiffs disability as a blueberry farmer. Defendant argues that they issued a policy to plaintiff in his capacity as a physician; therefore, the policy does not provide for coverage to plaintiff as a blueberry farmer. On the claim form, plaintiff listed his occupation as a physician. Under the terms of the policy, because plaintiff never resumed his position as a physician, defendant claims he cannot recover for the second alleged disability. Furthermore, defendant claims that plaintiffs second disability is based on the same problems as his first disability, making it one continuous period of disability. Therefore, defendant argues that plaintiff is entitled to only one maximum benefits period of two years.

Plaintiff claims that there is no provision in the policy supporting defendant’s position that coverage is limited to the occupation of a physician. The policy provides that benefits are payable upon “the complete inability of the insured to perform any and every duty of the occupation in which he was engaged immediately prior to the commencement of the disability.” Plaintiff further argues that disability from farming caused by spinal stenosis is unrelated to the heart condition which disabled him as a physician in 1986. Furthermore, plaintiff worked as a blueberry farmer for over two years before becoming disabled because of spinal stenosis. Therefore, the 1986 disability and the 1988 disability at issue are not one continuing period of disability.

We agree with plaintiff and find that the trial court did not err in finding that the policy provided coverage for plaintiff as a blueberry farmer. Furthermore, if plaintiff was limited to coverage in his position as a physician, defendant should not have continued accepting premiums following plaintiffs total disability as a physician in 1986. In addition, any ambiguity in a contract of insurance is to be construed in favor of the insured. Nickels v. Guarantee Trust Life Insurance Company, 563 So.2d 924 (La.App. 1st Cir.1990), Carney v. American Fire & Indemnity Co., 371 So.2d 815 (La.1979). Construing the language in the light most favorable to the insured, we cannot say that the trial judge’s finding affording coverage was erroneous.

Defendant’s second assignment of error is that the trial judge erred in finding that plaintiff proved he was a blueberry farmer since the only evidence plaintiff presented was his own self-serving testimony. Plaintiff testified that he purchased twenty-five acres of land in Picayune, Ms. to develop a blueberry farm. He performed extensive work on the land for farming operations. Plaintiff offered a letter from the president of First United Bank evidencing that plaintiff borrowed $24,000 for blueberry farming operations. Defendant offered plaintiff’s tax returns for 1987 through 1989 which showed no evidence that he was a blueberry farmer, but instead indicated that he worked as a medical consultant.

Whenever there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable basis for the trial court’s finding, on review, the appellate court should not disturb this factual finding in the absence of manifest error. The reviewing court must give great weight to the factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, Co., 283 So.2d 716 (La.1973).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kepner v. Durham Life Insurance Co.
600 So. 2d 642 (Supreme Court of Louisiana, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
596 So. 2d 370, 1992 La. App. LEXIS 706, 1992 WL 47781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kepner-v-durham-life-insurance-co-lactapp-1992.