OPINION
By LIEGHLEY, J.
Plaintiff instituted an action in the Municipal Court of Cleveland to recover certain benefits under a total and permanent disability provision attached to a contract of insurance entered into by and between plaintiff and defendant on or about December 2, 1929. The trial below was had upon an agreed statement of facts and resulted in a judgment for plaintiff. The case is now here for review on an appeal on questions of law.
The pertinent provisions of the policy read as follows:
“Hereby agrees, that upon receipt by the Company at its Home Office in the City of New York of due proof, on forms which will be furnished by the Company, on request, that the insured has, while said policy and this supplementary contract are in full force and prior to the anniversary date of said policy nearest to the sixtieth birthday of the insured become totally and permanently disabled as the result of bodily injury or disease occurring and originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation or performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will during the continuance of such disability,—
“1. Waive the payment of each premium falling due under said policy and this supplementary contract, and,
“2. Pay to the insured, or a person designated by him for the purpose, or if -such disability is due to, or is accompanied by, mental incapacity, to the beneficiary of record under said policy, a monthly income of $10,00 for each $1000.00 of insurance, or of commuted value of installments, if any, under said policy.
“Such waiver shall begin as of the anniversary of said policy next succeeding the date of the commencement of such disability, and such payments shall begin as of the date of the commencement of such disability, provided, however, that in no case shall such waiver begin as of any such anniversary occurring, nor shall such payments begin as of a date, more than six months prior to the date of receipt of the required proof.
“Notwithstanding that proof of disability may have been accepted by the Comp.any as satisfactory, the insured shall at any time on demand from the Company, furnish due proof of the continuance of such disability but after such disability shall nave continued for two full years the Company will not demand such proof more often rhan once in each subsequent year. If the insured shall fail to furnish such proof, or if the insured shall be able to perform any work or engage in any business whatsoever for compensation or profit, the monthly income herein provided shall immediately cease and all premiums thereafter failing due shall be payable according to the terms of said policy and of this supplementary contract.”
Plaintiff seeks to recover benefits for total and permanent disability for the period extending from October 18, 1931 to July 18, 1932. A proof of claim was duly filed on or about February 8, 1932, in compliance with the terms of the policy. It is stipulated that plaintiff became totally disabled on October 18, 1931, and that such disability continued to July 18, 1932.
On February 5, 1932, plaintiff was examined on behalf of defendant by Dr. Allison who reported to his company that he did not know whether plaintiff was totally and permanently disabled.
On February 8, 1932, at about the same time the proof of claim was filed, plaintiff submitted to defendant a written statement of Dr. Gilbert concerning his illness, in which Dr. Gilbert stated that plaintiff was totally and permanently disabled. On March 28, 1932 plaintiff submitted to defendant a letter of Dr. Gilbert to the effect that his disability has been complete up to date.
On April 22, 1932, Dr. Gilbert made a statement that plaintiff was probably permanently disabled.
On May 9, 1932, Dr. Allison reported to his company that the disability of plain
tiff was temporary, and that he would probably be able to resume his work in three months.
It is contended by defendant that this constitutes a temporary disability and there is no liability therefor under this contract of insurance.
Defendant contends that the case of Rose v New York Life Insurance Co., 127 Oh St 265, is controlling and determinative of the question involved in this action. It is our view that this case is not in point. In the Rose case the policy provided that the insured should file a proof of claim while the disability existed. This proof was not filed until after the disability ceased. Plaintiff in that case did not comply with the terms of the contract. He did not perform as by the terms of the contract he agreed to perform, to entitle him to the disability benefits. There is good reason for the provision that the proof be filed during the disability. The insurer has a right, by reason of this requirement, and should ha.ve the opportunity to examine the insured at the time the disability is claimed. In the Rose case the insurer was expressly given this right but the opportunity was denied by filing the proof after the disability ceased.
The facts in the case at bar are different. The insured became disabled on October 18, 1931 and filed his proof of claim for total and permanent disability on February 8, 1932, and submitted therewith medical proof of such disability. It is conceded that he was then totally disabled and that his disability extended to July thereafter. The provision of the policy is that the insured shall file a proof of claim to the effect that he “has become” totally and permanently disabled, which language imports “is.” The insured complied with this requirement.
The language of the policy is unambiguous and couched in plain English defining what each party thereto shall and must do. It is expressly agreed that in the event the insured shall file “due proof that he has * * * become totally and permanently disabled as the result of bodily injury or disease, so as to prevent him from engaging in any occupation * * * for a period of at least three months’ the insurer will then do certain things. It agrees to waive premiums; it agrees to pay insured $10.00 on each $1000.00. of insurance monthly from the time the disability began. In this case the plaintiff fulfilled his part of these requirements. The insurer has not paid for the claimed reason that the disability is temporary.
If the Rose case. determines this case, it would be helpful to bench and bar to know it that the question may be forever settled as there is a considerable analogous litigation over the question.
We are not in accord with those courts that hold this and similar contracts ambiguous. Reading the entire contract as all contracts should be read, it is perfectly clear what the rights and obligations of the parties are.
It is entirely clear that both parties had in contemplation a period of ■ permanent disability less than life. This is made certain by the provision that benefits shall cease in the event such disability ceases.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
By LIEGHLEY, J.
Plaintiff instituted an action in the Municipal Court of Cleveland to recover certain benefits under a total and permanent disability provision attached to a contract of insurance entered into by and between plaintiff and defendant on or about December 2, 1929. The trial below was had upon an agreed statement of facts and resulted in a judgment for plaintiff. The case is now here for review on an appeal on questions of law.
The pertinent provisions of the policy read as follows:
“Hereby agrees, that upon receipt by the Company at its Home Office in the City of New York of due proof, on forms which will be furnished by the Company, on request, that the insured has, while said policy and this supplementary contract are in full force and prior to the anniversary date of said policy nearest to the sixtieth birthday of the insured become totally and permanently disabled as the result of bodily injury or disease occurring and originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation or performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will during the continuance of such disability,—
“1. Waive the payment of each premium falling due under said policy and this supplementary contract, and,
“2. Pay to the insured, or a person designated by him for the purpose, or if -such disability is due to, or is accompanied by, mental incapacity, to the beneficiary of record under said policy, a monthly income of $10,00 for each $1000.00 of insurance, or of commuted value of installments, if any, under said policy.
“Such waiver shall begin as of the anniversary of said policy next succeeding the date of the commencement of such disability, and such payments shall begin as of the date of the commencement of such disability, provided, however, that in no case shall such waiver begin as of any such anniversary occurring, nor shall such payments begin as of a date, more than six months prior to the date of receipt of the required proof.
“Notwithstanding that proof of disability may have been accepted by the Comp.any as satisfactory, the insured shall at any time on demand from the Company, furnish due proof of the continuance of such disability but after such disability shall nave continued for two full years the Company will not demand such proof more often rhan once in each subsequent year. If the insured shall fail to furnish such proof, or if the insured shall be able to perform any work or engage in any business whatsoever for compensation or profit, the monthly income herein provided shall immediately cease and all premiums thereafter failing due shall be payable according to the terms of said policy and of this supplementary contract.”
Plaintiff seeks to recover benefits for total and permanent disability for the period extending from October 18, 1931 to July 18, 1932. A proof of claim was duly filed on or about February 8, 1932, in compliance with the terms of the policy. It is stipulated that plaintiff became totally disabled on October 18, 1931, and that such disability continued to July 18, 1932.
On February 5, 1932, plaintiff was examined on behalf of defendant by Dr. Allison who reported to his company that he did not know whether plaintiff was totally and permanently disabled.
On February 8, 1932, at about the same time the proof of claim was filed, plaintiff submitted to defendant a written statement of Dr. Gilbert concerning his illness, in which Dr. Gilbert stated that plaintiff was totally and permanently disabled. On March 28, 1932 plaintiff submitted to defendant a letter of Dr. Gilbert to the effect that his disability has been complete up to date.
On April 22, 1932, Dr. Gilbert made a statement that plaintiff was probably permanently disabled.
On May 9, 1932, Dr. Allison reported to his company that the disability of plain
tiff was temporary, and that he would probably be able to resume his work in three months.
It is contended by defendant that this constitutes a temporary disability and there is no liability therefor under this contract of insurance.
Defendant contends that the case of Rose v New York Life Insurance Co., 127 Oh St 265, is controlling and determinative of the question involved in this action. It is our view that this case is not in point. In the Rose case the policy provided that the insured should file a proof of claim while the disability existed. This proof was not filed until after the disability ceased. Plaintiff in that case did not comply with the terms of the contract. He did not perform as by the terms of the contract he agreed to perform, to entitle him to the disability benefits. There is good reason for the provision that the proof be filed during the disability. The insurer has a right, by reason of this requirement, and should ha.ve the opportunity to examine the insured at the time the disability is claimed. In the Rose case the insurer was expressly given this right but the opportunity was denied by filing the proof after the disability ceased.
The facts in the case at bar are different. The insured became disabled on October 18, 1931 and filed his proof of claim for total and permanent disability on February 8, 1932, and submitted therewith medical proof of such disability. It is conceded that he was then totally disabled and that his disability extended to July thereafter. The provision of the policy is that the insured shall file a proof of claim to the effect that he “has become” totally and permanently disabled, which language imports “is.” The insured complied with this requirement.
The language of the policy is unambiguous and couched in plain English defining what each party thereto shall and must do. It is expressly agreed that in the event the insured shall file “due proof that he has * * * become totally and permanently disabled as the result of bodily injury or disease, so as to prevent him from engaging in any occupation * * * for a period of at least three months’ the insurer will then do certain things. It agrees to waive premiums; it agrees to pay insured $10.00 on each $1000.00. of insurance monthly from the time the disability began. In this case the plaintiff fulfilled his part of these requirements. The insurer has not paid for the claimed reason that the disability is temporary.
If the Rose case. determines this case, it would be helpful to bench and bar to know it that the question may be forever settled as there is a considerable analogous litigation over the question.
We are not in accord with those courts that hold this and similar contracts ambiguous. Reading the entire contract as all contracts should be read, it is perfectly clear what the rights and obligations of the parties are.
It is entirely clear that both parties had in contemplation a period of ■ permanent disability less than life. This is made certain by the provision that benefits shall cease in the event such disability ceases.
If the fact of total and permanent disability be established as existing when proof was duly filed, and that such disability is probably permanent and total for the future of the insured, the insurer then became obligated for the stipulated benefits for the period beginning from the date of such disability. This is exactly what the contract says. '
The plaintiff filed such proof on the 8th day of February, 1932. His doctor certified to such disability. The doctor for defendant then asserted he did not know. The defendant some months later refused to pay benefits of a claim that the Insured was only temporarily disabled at the time the proof was filed. This presented an issue of fact. The trial court resolved this issue of fact in favor of plaintiff. There was credible evidence to sustain this finding.
The defendant undoubtedly had a reasonable time after the proof was filed to examine, inquire and check the proof and the insured to ascertain the truth of this claim, and accept or reject the claim. The defendant rejected the claim while total disability concededly existed because not permanent. The trier of the facts found that the proof was true within the terms of the contract of insurance and the contemplation of the parties.
If the date of filing the proof in exact accord with the terms of the policy is not thfe pivotal date, then there would be strong incentive for an insurer to resort to. dilatory tactics and litigation in the fond hope that the lapse of time might result in converting a seeming permanency into a temporary disability. If subsequent developments shall operate in the case at bar 'to relieve defendant of its obligations under its contract, it wait be permitted to escape doing what it expressly agreed to
do. Potentially the insurer may insist that this policy means disability for life not probably but positively.
Summarily plaintiff and defendant entered into ’ a contract of insurance with disability provision attached in 1929. No claim that the premiums were not duly paid. In the event of permanent and total disability the insured agreed to file proof thereof after the lapse of three months from the beginning thereof. If true, the company agrees to waive premiums and pay specified benefits from the date of the inception of such disability. This is their agreement. The court found the claim of plaintiff that he was so disabled for over three months on the 8th day of February, 1932. This obligates defendant to pay the benefits that accrued prior to said date and so long as such disability continued. This agreement so to do is not qualified by any provision in the contract. There is nothing in the contract to the effect that in the event the insured, months after having duly filed proper proof of such disability, shall fortunately improve in health that such change shall operate to relieve the insurer from paying what it agreed to pay upon the happening of specified contingencies. The Plaintiff performed as he agreed to perform. The defendant will perform his contract only by being required to pay.
For the foregoing reasons the judgment is affirmed.
LEVINE, PJ, concurs in judgment.
TERRELL, J, dissents.