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Bowler v. Fidelity & Casualty Co.

Decided: March 3, 1969.

JAMES P. BOWLER, PLAINTIFF-APPELLANT,
v.
FIDELITY & CASUALTY COMPANY OF NEW YORK, DEFENDANT-RESPONDENT



For reversal and remandment -- Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.

Francis

[53 NJ Page 317] Plaintiff James B. Bowler as the holder of a "Maximum Benefit Accident" insurance policy issued to him by defendant Fidelity & Casualty Company of New York sought certain benefits allegedly due thereunder. On defendant's motion the trial judge ordered summary judgment in its favor on plaintiff's claim for total and permanent disability benefits. He also entered summary judgment for

plaintiff requiring defendant to pay one week's benefits in addition to those previously paid for total disability as defined in the policy. Both parties appealed from the adverse portions of the judgment. The Appellate Division denied any recovery, holding that plaintiff was barred by the six-year statute of limitations on the institution of suit. Bowler v. Fidelity & Casualty Co. of New York, 99 N.J. Super. 184 (App. Div. 1968); N.J.S. 2 A:14-1. We granted plaintiff's petition for certification. 51 N.J. 578 (1968).

On January 24, 1949, Fidelity & Casualty issued a policy of accident insurance to Bowler. It provided among other things:

"Article 2. If the Insured suffers total disability that within thirty days from the date of the accident continuously prevents the Insured from performing each and every duty pertaining to his occupation, the Company will pay for the period of the said disability, not exceeding two hundred consecutive weeks, [$50] The Weekly Indemnity."

It provided further:

"Article 3. If the Insured suffers total disability that within thirty days from the date of the accident continuously prevents the Insured from performing each and every duty pertaining to his occupation for the period of two hundred consecutive weeks, and if at the end of the said period the Insured is totally and permanently disabled, as the result of the bodily injury causing the said two hundred weeks' disability, and is thereby permanently incapable of engaging in any occupation or employment for wage or profit, the Company, in addition to the Weekly Indemnity paid under Article 2, will pay an amount equal to the [$50] Weekly Indemnity For 600 Weeks."

In an accidental fall on January 31, 1954, Bowler suffered a severe fracture of both lower bones of his right leg. He was unemployed at the time, having lost his employment with Sears Roebuck & Company as a buyer of ladies coats about three weeks earlier. He was hospitalized the next day and underwent an open operation for reduction of the fractures. After 70 days he was allowed

to go home, but it was necessary to return in a short time for a second operation. In October, after a further confinement of 30 days, he went home but was to continue under medical care. Subsequently osteomyelitis developed at the site of the fractures. The condition is a serious bone infection which sometimes develops after fractures. At times, as obviously was the situation in the present case according to the medical reports, the infection becomes chronic and results in the rotting away of the bone, usually accompanied by pus drainage through an ulcer in the outer surface of the leg in the area of the fracture. (For a general description of osteomyelitis, its causes and effects, see 1 Gray's Attorneys' Textbook of Medicine para. 2.47(8), (12) (3 d ed. Supp. 1968); and see, Nickolopulos v. Equitable Life Assurance Society, 113 N.J.L. 450, 452 (E. & A. 1934)

It is undisputed that Proof of Claim for total disability was filed under Article 2 of the policy. Total incapacity was recognized by the company and weekly disability benefits were paid thereunder for 199 weeks or through November 25, 1957. Since the policy required continuous disability as a condition to continued payments, the company frequently sent appropriate forms to Bowler for completion. They were executed by him and his treating physician. Moreover, the insurer had him examined periodically by a physician of its own choice, and being satisfied that the condition of his leg constituted total disability, continued the weekly payments for the period mentioned.

As the end of the 200-week period contemplated by Article 2 approached, Fidelity & Casualty wrote Bowler on November 18, 1957 asking him to report to its Newark, N.J. office. Apparently on that date he was given additional claim forms to be completed by himself and his treating physician. These forms were completed and were stamped received by the New York office of the company on November 26, 1957. In the form signed by Bowler he asserted continuous and total disability "to date." The attending physician's statement

was executed by Dr. Leo Fisher on November 25, 1957. He had been treating Bowler from the day after the accident. The statement referred the company to his previous reports; it said the patient was still under treatment and that the doctor could not state how long Bowler would be continuously totally disabled. On the same date as Dr. Fisher's report the Newark office of the company issued its weekly benefit check for the 199th week of Bowler's continuous disability. The record is not clear as to whether the check dated November 25 went out before or after the doctor's report was received. The probability is that it was sent before the report because the check bears the notation "Case not closed."

It is obvious that when the company sent the check covering the 199th week, it was aware of the significance of the upcoming 200th week payment. The claim had been under close observation. For example, it appears that forms such as those just mentioned had been completed at the company's request about every five weeks (99 N.J. Super., at 191). On the basis of those reports continuous total disability had been recognized and the payments required by the policy made for two years, ten months and three weeks -- 199 weeks. The company knew that if Bowler was totally and permanently disabled within the meaning of Article 3 of the contract when the 200th payment was due and paid, it was obliged under that article to pay an additional amount "equal to the [$50] Weekly Indemnity For 600 Weeks." The company's position is that if at the end of the 200-week period the disability is total and permanent, this 600 weeks' obligation is payable in one lump sum (not in 600 weekly installments). Thus if such disability existed on December 2, 1957, the 200th week, a duty existed to make the last remaining weekly payment of $50, and in addition to make one further payment of $30,000.

The insured urged that the intention of Article 3 as revealed by all of the policy language was to provide weekly

benefits of $50 for 600 additional weeks, rather than a single amount of $30,000. The Appellate Division accepted the insurer's view. It was impressed by the fact that under Article 2 the total disability must be continuous for the 200 weeks to qualify a policyholder for benefits for that period. This requirement contrasted with the Article 3 language which provided for payment of an amount equal to 600 weeks if at the "end" of the 200 weeks the insured is totally and permanently disabled. And the Appellate Division said, "There is no proviso whereby the payment is limited to the weeks during which plaintiff will be disabled thereafter, or whereby the company may terminate payments in the event that total and permanent disability, as therein defined, ceases." 99 N.J. Super., at 195. In view of the disposition we have decided upon for purposes of this case we will accept the insurer's position that benefits due under Article 3 are to be paid in one lump sum.

In light of the company's concession as to the extent of its Article 3 obligation, it is understandable that sometime in the latter part of November Bowler was asked by the company to submit to re-examination by its own physician, Dr. J. G. Siegel. The examination took place on November 26, 1957 at the doctor's office. Dr. Siegel's last previous examination was on April 29, 1957. In his report the doctor noted that Bowler remained under the care of Dr. Fisher, the last visit having been on November 12 at which time the injured leg was dressed and x-rays taken. The next visit was scheduled for January 1958.

In order to achieve the proper perspective for consideration of Dr. Siegel's findings and report, we turn first to the meaning and application of the policy requirement that the insured be "totally and permanently disabled * * * and * * * is thereby permanently incapable of engaging in any occupation or employment for wage or profit." It is fundamental, of course, that courts will interpret insurance policy language liberally in favor of the insured. Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N.J. 1, 7 (1961);

Kievit v. Loyal Protect. Life Ins. Co., 34 N.J. 475, 482 (1961); and see Fannick v. Metropolitan Life Ins. Co., 34 N.J. Super. 556 (App. Div. 1955).

To be totally disabled within the language of such policies a person does not have to be bedridden, or absolutely disabled or paralyzed or completely unable to get about, or unable to carry on any activity whatever. Nickolopulos v. Equitable Life Assurance Society, supra; Gross v. Com. Cas. Ins. Co., 90 N.J.L. 594 (E. & A. 1917); Fannick v. Metropolitan Life Ins. Co., supra; Peterson v. Hartford Accident & Indemnity Co., 32 N.J. Super. 23 (App. Div. 1954); and see Kalson v. Star Elec. Motor Co., 15 N.J. Super. 565 (Cty. Ct. 1951), affirmed 21 N.J. Super. 15 (App. Div. 1952). The disability is total if the insured is unable to engage in a remunerative occupation, or to do work in some profitable employment or enterprise. Feldmann v. Metropolitan Life Ins. Co., 14 N.Y.S. 2 d 652 (App. Div. 1939). The fact that he can do trifling work or a trifling amount of work or work of an unimportant character or light work at irregular intervals does not disqualify him. John Hancock Mut. Life Ins. Co. v. Schroder, 235 Ala. 655, 180 So. 327 (1938); Rickey v. New York Life Ins. Co., 229 Mo. App. 1226, 71 S.W. 2 d 88 (1934); Gross v. Com. Cas. Ins. Co., supra; Leonard v. Pacific Mut. Life Ins. Co., 212 N.C. 151, 193 S.E. 166 (1937). If because of the physical condition, gainful employment cannot be obtained or performed, total disability is established. Work which disqualifies must be profitable or advantageous to the insured, rather than some trivial work which yields only an inconsequential emolument. The remuneration must be something reasonably substantial rather than a mere nominal gain or profit. Mutual Life Ins. Co. v. Bryant, 296 Ky. 815, 177 S.W. 2 d 588, 153 A.L.R. 422 (Ct. App. 1943); Zakon v. Metropolitan Life Ins. Co., 328 Mass. 486, 104 N.E. 2 d 603 (1952); Aetna Life Ins. Co. v. Motheral, 183 S.W. 2 d 677 (Tex. Civ. App. 1944). It has been said that to bar recovery the earnings must approach the dignity of a livelihood. [53 NJ Page 323] Erreca v. Western States Life Ins. Co., 19 Cal. 2 d 388, 121 P. 2 d 689, 695, 141 A.L.R. 68 (1942); and see Hughes v. Mutual Life Ins. Co., 180 F.2d 542 (9 th Cir. 1950). If ability is limited to some temporary work, no bar to policy benefits exists; to be barred the insured must be able to do gainful work with reasonable and substantial continuity and regularity. United States v. Fitzpatrick, 62 F.2d 562 (10 th Cir. 1933); 1 A Appleman, Insurance Law and Practice ยง 682, p. 641 (1965); 15 Couch on Insurance 2 d ยง 53:58, p. 67 (1966). Futile attempts to return to a job would not prevent recovery. Joyce v. United Insurance Co. of America, 202 Cal. App. 2 d 654, 21 Cal. Rptr. 361, 17 A.L.R. 3 d 517 (1962). In fact, some courts have declared that in order to recover for total disability an insured must show that he made an effort to adapt himself to work other than his regular work and that his condition would not permit, or that he tried to do other work and to secure other employment. See Prudential Ins. Co. of America v. Brookman, 167 Md. 616, 175 A. 838 (Ct. App. 1934); White v. Aetna Life Ins. Co., 117 W. Va. 214, 185 S.E. 236 (1936). If he is so incapacitated that substantially all activities of any regular employment are closed to him, he is entitled to the policy benefits. To give the policy ...


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