Shanahan v. Shelby Mutual Insurance

198 S.E.2d 47, 19 N.C. App. 143, 1973 N.C. App. LEXIS 1598
CourtCourt of Appeals of North Carolina
DecidedAugust 1, 1973
DocketNo. 7326SC524
StatusPublished

This text of 198 S.E.2d 47 (Shanahan v. Shelby Mutual Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shanahan v. Shelby Mutual Insurance, 198 S.E.2d 47, 19 N.C. App. 143, 1973 N.C. App. LEXIS 1598 (N.C. Ct. App. 1973).

Opinion

HEDRICK, Judge.

This appeal presents the question of whether the evidence, when considered in the light most favorable to plaintiff, is sufficient to require submission to the jury the issue of whether plaintiff was totally disabled, as defined in the insurance policy, from and after 15 March 1971.

The material evidence offered by plaintiff tends to show the following:

Plaintiff was the exclusive “sales representative” for Jant-zen, Inc., in an area covering western North Carolina and a portion of western Virginia. Plaintiff testified that he was responsible for the promotion and advertising of ladies’ sportswear and swim suits in his territory and received from Jantzen [147]*147at least one sample of each garment manufactured by the ladies’ wear division. Plaintiff’s duties included unpacking, tagging, hanging and pressing of each garment before showing it to a prospective customer. He testified:

“We used a special type of hanger which we could put all types of information on so that it was possible to glance at any one of the five hundred items and immedicately [sic] to be able to adequately describe it to the customers.”
“After hanging the samples in the manner that I have described, it was necessary to put them in the bag or cases and physically load them into an automobile and then drive them where I was about to display them.”

After the accident in Virginia on 29 July 1970, plaintiff was hospitalized in Roanoke until about 21 August 1970, when he was removed by “hospital plane” and taken to Charlotte.

Dr. Harold W. Tracy, an expert in the field of orthopedic surgery, examined plaintiff in the Charlotte Memorial Hospital on 24 August 1970. Dr. Tracy testified that plaintiff:

“ . . . had a fracture dislocation of the fourth upon the fifth cervical vertebra. That is in the neck. And a compression fracture as well of the third lumbar vertebra, which is down in the low back. There has also been a dislocation of the left shoulder which had been reduced, and he had residual neurological loss in both arms as a result of his neck injury.”

Dr. Tracy treated plaintiff until 8 May 1972 and testified that although his fractures and spinal injuries “went on to satisfactory healing,” plaintiff was left with “continuing discomfort in both areas, weakness and tenderness, especially aggravated by fatigue, and he was left with some permanent residual neu-rologic loss in both arms; that is, weakness and numbness. By neurologic I mean weakness that involves the nerve structure.” Dr. Tracy testified that by November, 1971, plaintiff “had reached a plateau of improvement” and estimated that plaintiff had a 40% permanent residual disability in his right arm, a 60% permanent residual disability in his left arm, a 20% permanent residual disability in his neck, and some permanent residual disability resulting from the compression fracture in the low back. In the opinion of Dr. Tracy, the pain suffered by plaintiff as a result of these injuries would affect plaintiff’s ability to [148]*148work by limiting his tolerance for standing, sitting and walking, and necessitating that plaintiff take frequent rest periods. Dr. Tracy did not feel that plaintiff’s condition would improve in the future.

Dr. R. W. Gaul, another expert in the field of orthopedic surgery, examined plaintiff on 11 April 1972. He testified:

“On examination, I saw a middle aged white male, gross loss of motion in all planes of the cervical spine and this motion was painful at the extremes. This means both bending and rotation and lateral and side to side bending of the neck. The left shoulder was partially dislocated, tenderness of the muscle about this and the muscles of the left shoulder were wasted. There was a rather marked weakness of all this muscle group that extends the elbow, weak biceps that bends it, only a fair grip. Fair means just able to work against gravity. * * * Examination of the lumbar spine revealed stiffness and bending to one side. The motion was almost nonexistent. I was able to get almost nothing in the way of motion in the low back area. Examination of reflexes revealed weakness in all the reflexes in the upper extremities, normal in the lower. Stroking of the foot tended to rule out any serious spinal cord damage.”

It was Dr. Gaul’s opinion that plaintiff could engage only in an occupation requiring minimal physical or mental exertion and testified:

“The condition I found would impede such physical action as the unpacking of clothing samples and pressing them. I would certainly think his condition would tend to impede his ability to carry sample cases which weighed more than ten or fifteen pounds.”

Dr. Gaul anticipates no further improvement in plaintiff’s condition.

Plaintiff testified that on 8 December 1970 he “had my wife drive me over to my showroom at the Charlotte Merchandise Mart where a junior salesman [Craig Ficklin], who had been supplied by the company, was showing the line. I was interested in seeing what he was doing, so forth. I stayed there for possibly half an hour or so. I had to leave.” In February, 1971, plaintiff flew to Las Vegas to attend Jantzen’s Fall sales meeting.

[149]*149Commencing about 15 March 1971, plaintiff began riding with Ficklin in the sales area. Ficklin stated that during these trips, plaintiff appeared to be “in severe pain” and would frequently fall asleep in the automobile. He stated that plaintiff was only able to raise his right arm “a little bit” and that plaintiff “couldn’t raise his left arm even up to the level of his shoulder.” Ficklin testified that he did all the driving, handled all the samples, wrote the orders, prepared the line for show, made all the telephone calls and “everything else concerned.”

Plaintiff testified that he was physically unable to perform the duties of his occupation in that he could not carry the bags containing the samples, he could not prepare and display the merchandise, and the pain made it impossible for him to concentrate so as to make the sales and write the orders.

On 27 May 1971, plaintiff’s employment with Jantzen was terminated and he has not been reemployed.

In determining what constitutes total disability within the terms of an insurance policy, “each policy must be construed in relation to its particular provisions and each claim must be considered in relation to the particular profession or occupation in which the insured was engaged when injured.” Greenwood v. Insurance Co., 242 N.C. 745, 89 S.E. 2d 455 (1955) (hereafter cited as Greenwood).

The insurance policy under consideration employs a two stage definition of total disability. Under clause 2 of Coverage C, a disability is total, if, for a period of fifty-two weeks from the commencement of disability, “it shall continuously prevent the insured from performing every duty pertaining to Ms occupation.” (Emphasis added.) The policy of insurance in Greenwood, supra, also employed a two stage definition of total disability. Under the first stage, a disability was defined as total, if, for a period of twelve consecutive months after the injury, it prevented the insured “from performing any and every duty pertaining to the Insured’s business or occupation.” (Emphasis added.) Justice Bobbitt, now Chief Justice, writing for the North Carolina Supreme Court in Greenwood

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

Related

Greenwood v. Inter-Ocean Insurance Company
89 S.E.2d 455 (Supreme Court of North Carolina, 1955)
Bulluck v. Mutual Life Insurance
158 S.E. 185 (Supreme Court of North Carolina, 1931)
Taylor v. Bankers Life & Casualty Co.
188 S.E.2d 728 (Court of Appeals of North Carolina, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
198 S.E.2d 47, 19 N.C. App. 143, 1973 N.C. App. LEXIS 1598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shanahan-v-shelby-mutual-insurance-ncctapp-1973.