Conford, Foley and Mintz. The opinion of the court was delivered by Conford, S.j.a.d.
This case entails the difficult and important problem of construction of a common form of coverage clause in an accident insurance policy. Its proper solution requires, in our judgment, a more comprehensive study than any yet undertaken by our courts of the extent to which coverage and exclusion clauses in such policies have made recovery thereon dependent upon the absence of any contributory incidence, to the loss insured, of previous disease, infirmity or illness of the assured.
Plaintiffs bring this action on an insurance policy issued by defendant to recover medical and hospital expenses consequent upon injuries sustained April 16, 1957 by the infant plaintiff (deceased July 6, 1959) as a result of accidentally bumping his head against that of a schoolmate during a recess at the school he attended, St. Mary's Grammar School, South Amboy. The boy was nine years of age at the time. Soon after, he developed symptoms indicating neurological pathology, and was subjected to brain surgery. This revealed an abnormal positioning of the brain stem and evoked a medical diagnosis of Arnold-Chiari malformation, described hereinafter, and suspected brain tumor. The defendant resists recovery on the accident policy on the ground, among others, that plaintiffs' loss does not come within the coverage of the policy.
As evidence of the insurance we have before us only a "certificate of insurance," issued to the infant plaintiff as a student at the school, not the "Master Policy" referred to therein, but both sides have submitted the case on the assumption that this document states the contract coverage, and we deal with it as such, as did the trial court. The certificate certifies that the "insured person" is:
"insured against loss resulting directly and independently of all other causes from injury sustained by such Insured Person in the manner and to the extent herein provided. * * * 'Injury' as used in the Master Policy means bodily injury sustained by the Insured Person and caused by accident * * *."
Indemnity under the policy is provided for two kinds of accidental losses: (a) for death, dismemberment and loss of sight, in accordance with a fixed schedule of payments; and (b) for medical, surgical, dental, nurse and hospital expense. It is only the second type of indemnity that is here sought. Plaintiffs recovered a verdict and judgment thereon in the amount of $1,484.
The principal issue raised on this appeal is whether defendant is correct in its contention that the loss in this case was not one which resulted "independently of all other causes" from accidental injury, but at least in part from the pre-existing abnormal condition of the boy's brain, and that it was reversible error for the trial court to have submitted the issue of coverage to the jury and denied defendant's motion for judgment at the end of its case.
The accident in this case occurred when the two boys involved were running, during play, and their heads collided. Plaintiff was the smaller, and the blow raised a "big bump" on his head and a "black and blue" area around his eye. The child was completely free of any physical or health problems before the accident and had been a "very good, healthy, very alert * * * boy." Within a week after the accident he showed symptoms of nausea and lethargy. He had headaches and was unsteady on his feet. Later his vision began to blur. One of the first doctors who treated him, Dr. Hoffman, referred him to Dr. Howard E. Medinets, a neurological specialist and surgeon, who examined him May 26, 1957 at the East Orange General Hospital.
Based upon the history, clinical examination and findings, Dr. Medinets first made a tentative diagnosis of "increased cranial pressure * * * due to either a subdural hematoma [blood clot on the brain] or a tumor of the brain." After testifying to that effect on direct examination as a witness for plaintiffs, the doctor was taken over as a witness for defendant, and testified as follows. He performed two diagnostic operations, one on May 28, 1957, the other May 30, 1957. These revealed "a condition which we call
obstructive hydrocephalus which is a condition of dilatation of the fluid space within the brain due to interference with the passageways that normally conduct the fluid from the inside of the brain to the outside of the brain." The reason for the obstruction was discovered by a major cranial surgical procedure performed June 4, 1957. This showed a condition called "the Arnold-Chiari Malformation." The witness described this as a
"condition in which certain portions of the brain are displaced downward. What we call the cerebellar tonsils are displaced downward and downward displacement of the portion of the brain obstructing the flow of the ventricular fluid. It prevents it from coming out of the brain. This condition is due to any of several causes. At times it is congenital; at times it is due to the presence of a brain tumor within the substance of the cerebellum."
The operation consisted of a decompression, or removal of bone around the displaced brain tissue, to relieve the condition mechanically. The interior of the brain was not explored "because there was no reason to increase the neurological deficit, to increase the damage from whatever was lying within the brain substance."
Diagnosis after discharge from the hospital was "an obstructive hydrocephalus and Arnold Chiari malformation; cerebellar tumor suspected but not verified." No subdural hematoma was found. On further examination by defendant, Dr. Medinets stated it as his opinion that this particular Arnold-Chiari malformation was caused by a cerebellar tumor "deep within the substance of the brain." He said tumors are not caused by a "single blow to the head" but can be aggravated by a blow. He thought the tumor and malformation in this case had been aggravated by the trauma of the blow. He explained:
"The situation prior to the trauma was that the tumor was there probably and some Arnold Chiari malformation but still there was enough room for fluid to get out. Following the injury, probably there was some swelling of the tissue with increased Arnold Chiari malformation. Then there was that obstruction and the acute symptoms developed."
He answered in the negative a question whether the condition requiring surgery was "solely the result of the head bumping injury," and in the affirmative an inquiry whether "that condition was the combination of the tumor, the Arnold Chiari malformation and the aggravation when the boys bumped their heads."
On cross-examination by plaintiffs, Dr. Medinets responded affirmatively to questions whether the "blow to the head caused the swelling of the brain tissue" and whether "the swelling of the brain tissue because of its pressure against the remaining brain tissue probably with reasonable medical certainty further herniated the Arnold Chiari malformation." There was a "[ILLEGIBLE WORD]" between the blow to the head and the increased intercranial pressure. The doctor agreed that prior to the accident the Arnold-Chiari malformation syndrome was in a "quiescent state." The trauma was a "competent producing cause" of the infant plaintiff's intercranial pressure, but, he added on redirect examination, only with the presence of a tumor.
Interrogation by the court brought out the following:
"The Court: The testimony, is, Doctor, uncontradicted that this boy was well and strong and healthy before this happened. And in a matter of a few days trouble developed. What caused the trouble?
The Witness: The trouble was caused by a complete obstruction to the flow of fluid out of the brain. This obstruction was due to pre-existing quiescent abnormalities plus the effects of the trauma.
The Court: Exactly. But it was the effect of the trauma which brought the thing to a head?
The Court: Without it, it might not have occurred?
The Witness: For a further interval of time."
There was no testimony concerning the nature of the tumor itself, i.e. , whether benign or otherwise, or as to its probable prognosis apart from the accident.
A motion for judgment in favor of the defendant on the ground the injury and condition were not covered by the policy was denied, the court stating:
"I am quite sure that the jury has a right to study Dr. Medinets' testimony and decide whether or not the first paragraph of the policy could prevent a recovery in this case."
In respect of coverage, the court charged the jury, so far as here material:
"This is a suit brought under an insurance policy which you will have with you in the jury room.
The second defense which the defendant interposes is that this condition from which the boy was suffering, at least a part of the time, was not caused by the accident itself; that it was not direct and independent of all other causes. I will not attempt to review because you have heard recently the testimony of Dr. Medinets and what he found, and what he said. But it is for you to decide whether or not this injury which this boy sustained and the treatment thereafter including the operation and so forth by Dr. Medinets, was covered by this policy. If you find it was completely covered then your verdict should be for the plaintiff and against the defendant in the amount of $1,520.
If you find it was not then of course your verdict would be no cause of action * * *."
The defendant took exception to the court's letting the "question of construction go to the jury," arguing "there is no dispute in the testimony as to what the condition of the boy was when Dr. Medinets went and opened him up. * * * the construction of the policy is solely within the province of the court."
The parties have tried and argued this case on the assumption that New Jersey law is applicable, and we therefore treat it accordingly.
The much litigated question as to when and the extent to which the presence or contribution of predisposing bodily conditions or diseases affects the right to recovery on an accident insurance policy, or to double indemnity for death by accident on a life policy, see 45 C.J.S. Insurance § 776, pp. 809-814; 29A Am. Jur., Insurance , § 1212, pp. 351, 354; 1 Appleman, Insurance Law and Practice (1941), § 392, pp. 468-473; Annotation 131 A.L.R. 240 (1940); Comment, 21 U. Chi. L. Rev. 266 (1954); Hancock and Grahame, "Are the Courts Destroying the Double Indemnity and Accident Benefit," 1951 Insurance L.J., p. 440, commonly involves one or both of two general kinds of limitation clauses, Hancock and Grahame, op. cit., supra, p. 444. Typical of the first is that found in the instant policy: "loss resulting directly and independently of all other causes from injury * * * caused by accident." Variations in wording are frequent, some policies employing the expressions, "solely," "exclusively" or "sole cause." We refer generally hereinafter to this kind of clause as a "limited coverage" clause. The other, commonly and hereinafter denominated an "exclusionary" clause, and sometimes referred to as a "reduction" or "excepted risk" clause, is typically of the following substantive purport: "* * * which bodily injuries, or their effects, shall not be caused wholly or in part, directly or indirectly, by any bodily or mental disease, defect or infirmity." See Runyon v. Commonwealth Casualty Co. , 109 N.J.L. 238, 239 (E. & A. 1932); cf. Kievit v. Loyal Protective Insurance Company , 64 N.J. Super. 537 (App. Div. 1960), certification granted, 33 N.J. 331 (1960).
Although we have before us here for construction only a limited coverage clause, the absence of an exclusionary clause from the policy appears to us a vitally significant factor in the effort to arrive at a construction fairly according with the intent of the insurer in writing it and the reasonable expectations of the assured in buying it. Ambiguities in insurance contracts should be resolved, where reasonable
to do so, strictly against the insurer. Hunt v. Hospital Service Plan of N.J. , 33 N.J. 98, 102-103 (1960); Yannuzzi v. U.S. Casualty Co. , 19 N.J. 201, 207 (1955). In judging the existence of an ambiguity, and seeking clues to meaning, it is fair to look to the familiar and common recourses available to writers of insurance contracts for qualification of liability. For 70 years or more insurance carriers have sought to limit their liability on accident insurance primarily by means of the two general types of clauses indicated, or variants thereof. One type expressly and unmistakably excises from the coverage losses attributable directly or indirectly to bodily disease or infirmity. The other is equivocal as to any comparable effect or intent. This policy was issued in 1956. The availability of such common alternative usages, while not conclusive, is clearly a permissible aid to construction where only one of the alternatives is employed by the insurer. Cf. Slonim v. Globe Indemnity Co. , 20 N.J. Super. 594, 599 (Law Div. 1952). See the dissenting opinion of Clark, J., in Bush v. Order of United Commercial Travelers , 124 F.2d 528, 531 (2 Cir. 1942) ("such a clause [exclusionary], far from being 'redundant,' puts the purchaser on direct notice that latent defects of the human body may prevent recovery").
While relatively few of the reported opinions draw a clear line distinguishing policies containing limited coverage clauses only, from those containing such a clause and as well an exclusionary clause, most of the decisions involving policies of the former type hold the question of coverage to be one of fact for the finder thereof. Fidelity & Casualty Co. v. Meyer , 106 Ark. 91, 152 S.W. 995, 44 L.R.A., N.S. , 493 (Sup. Ct. 1912) (cancerous kidney); Miller v. United Ins. Co. , 113 Cal. App. 2 d 493, 248 P. 2 d 113 (Ct. App. 1952) (lung adhesion to chest from old injury); Fields v. Metropolitan Life Ins. Co. , 132 Conn. 558, 46 A. 2 d 127 (Sup. Ct. Err. ...