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Kievit v. Loyal Protective Insurance Co.

Decided: July 12, 1960.

DANIEL KIEVIT, PLAINTIFF-APPELLANT,
v.
LOYAL PROTECTIVE INSURANCE COMPANY, ETC., DEFENDANT-RESPONDENT



Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D. Goldmann, S.j.a.d. (concurring).

Haneman

Plaintiff instituted suit in the Superior Court to recover on an accident insurance policy executed by the defendant on March 21, 1952. Plaintiff appeals from a dismissal of his action, from the trial court's denial of his motion for a stay of the judgment and for a new trial, and because the court did not apply the law of Massachusetts.

Under the terms of the policy, defendant agreed to pay plaintiff $200 monthly indemnity "against loss directly and independently of all other causes from accidental bodily injuries," and

"Part IX. Reductions and Exceptions

The insurance under this policy shall not cover disability or other loss resulting from or contributed to by any disease or ailment, * * *."

The trial was had before a judge without a jury. The testimony discloses that:

On August 19, 1957 plaintiff, while in his general employment as a carpenter, was struck over the left eye by a 2 x 4 board and seriously injured. Despite his injuries he continued to work until August 23, 1957, when he was forced to leave work because his right arm began to shake. On that day he was treated by Dr. Manrodt, who prescribed pills and "worked on the shoulder." Dr. Manrodt became ill and plaintiff was referred to Dr. Brown. He was then treated by other doctors, including Dr. Ramundo, and subsequently, in November of 1957, came under the care of Dr. Winkler who, at the trial, was plaintiff's sole medical witness. Plaintiff was confined to a hospital from November 26, 1957 until December 10, 1957, during which time he was under the care of Dr. Winkler and was also treated by Dr. Hirschfeld.

Plaintiff testified that he worked steadily as a carpenter for many years until the date of the accident and that until that time he was in good health. He admitted, however, that he had seen Dr. Manrodt about two weeks prior to the accident, complaining that he "felt tired."

Dr. Winkler testified that on the basis of his examination of plaintiff he concluded that the accident was the "precipitating cause" of the illness which followed and which he diagnosed as "conversion hysteria," described as a "psychiatric term which indicates that the anxiety which a patient normally has is not allowed to come to the surface but instead manifests itself in some physical manner, usually an involuntary or abnormal movement or occasionally in a paralysis or the weakness of an extremity, sometimes pain in a portion of the body." He stated that plaintiff's disability was due in part to an inadequate personality which he felt antedated the accident. On cross-examination, in response to a question as to whether plaintiff's condition

as it developed may have been the result of an inadequate personality plus the accident, he said:

"Yes, or a sudden serious thing of this sort. I think the best way of explaining this is going a little bit further. Some of the illness here is a disease produced, that is, the man had the original illness and then the fact that he is sick causes further anxiety and causes him to retreat further into the actual conversion hysteria * * *."

There was introduced into evidence a written statement dated February 7, 1958 and signed by Dr. Winkler, in which he said:

"It is my opinion that partial relationship to these tremors can possibly be attributed to this blow on the head; all tests were normal."

In other words, Dr. Winkler had then stated there is only a possible relationship between the tremors and the blow on the head.

The sole medical witness who testified for defendant was Dr. Policastro, who appeared in response to a subpoena. Dr. Policastro had previously testified in a workmen's compensation proceeding on behalf of plaintiff. Dr. Policastro did not treat the plaintiff prior to the date of the accident and his testimony and conclusions are a result of his examination of plaintiff over a period of time subsequent thereto. The gist and effect of his testimony was that Parkinson's disease was running in a slow chronic form prior to the accident and that the accident aggravated or accelerated it. He testified that very few people in the medical profession believe that trauma is a cause of Parkinson's disease. He stated that Parkinson's disease is a progressive type of disease and further testified that plaintiff had the two main symptoms of the disease, namely, tremors and muscular rigidity.

There are also in evidence exhibits in connection with the proof of loss claim submitted by plaintiff which consist of

statements by Doctors Hirschfeld and Ramundo. The former stated that plaintiff's disability is due to "Parkinson's syndrome," while Dr. Ramundo stated it is due to a "Jacksonian type of convulsion."

Defendant paid plaintiff total disability payments amounting to $200 a month for a period from August 23, 1957 until December 23, 1957. Defendant then stopped the payments, claiming that its medical investigation disclosed that plaintiff's injuries were not caused "directly" and solely by the accident and, moreover, that the company was absolved from liability by the provision which requires that disability be independent of all other causes. Since disability was, in effect, admitted, the sole issue at the trial was whether plaintiff's disability occurred in such a manner as to bring him within the terms of the policy.

Judgment was rendered for defendant on October 21, 1959. On October 31, 1959 plaintiff filed a motion to stay the judgment and made a motion for a new trial. The motion was heard November 13, 1959, at which time plaintiff indicated his desire to submit into evidence certain documents, including two physicians' reports which had been submitted to defendant as part of plaintiff's proof of loss; testimony of Dr. Mandrodt, taken at a prior workmen's compensation hearing based on this same accident, to the effect that plaintiff showed no tremors when plaintiff visited him some two weeks prior to the accident; and the judgment and part of the opinion of the Morris County Court which affirmed the findings of the deputy director in the workmen's compensation proceeding.

Our initial concern is with the choice of law applicable to the facts as presented. In this regard the contract of insurance provided that it was to become effective only upon the execution of the policy by defendant in the State of Massachusetts; notice of injury had to be submitted on company forms to the company offices in Massachusetts; proof of loss had to be sent to the company's office in Massachusetts for action to be taken thereon; and payments

could only be issued from the company's offices in Massachusetts.

The construction of a contract must be governed by the law of the state in which the contract is made, and this general rule is applicable to insurance policies. Buzzone v. Hartford Accident and Indemnity Co. , 41 N.J. ...


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