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Ohrel v. Continental Casualty Co.

Decided: December 18, 1975.


Talbott, J.c.c.


In this suit plaintiff seeks to establish his right to a $100 a week payment for the period of his total disability up to lifetime for injuries which he sustained by accident on February 21, 1970 under a blanket disability insurance policy issued by defendant Continental Casualty Company (Continental) to the Gibbsboro Volunteer Fire Co. #1 and the Gibbsboro Ambulance Corps (hereafter Fire Company) for the year 1970. Substantial pretrial discovery and proceedings have ensued since issue was joined by pleadings filed late in 1971 and early 1972. These have included depositions, request for admissions, pretrial conference, as well as motion for summary judgment. The parties now waive their right to a jury trial, have stipulated as to the facts and submit the matter for decision to the court as a matter of law.

The stipulation of facts recites that plaintiff Charles W. Ohrel was born on December 31, 1921. He worked as a union carpenter until February 1965, obtaining work from a carpenter's local union in Philadelphia, Pennsylvania. He earned approximately $550 a month at that time.

In February 1965 plaintiff entered Our Lady of Lourdes Hospital in Camden, New Jersey, with marked osteoarthritis of the left hip. An orthrodesis was performed in which the degenerative portion of plaintiff's left hip joint was removed and the remaining portion fused with metal pins. As a result of this operation plaintiff experienced vascular difficulties and was admitted to John F. Kennedy Memorial Hospital in Stratford, New Jersey, in October 1965, with a condition diagnosed as recurrent pulmonary embolism with pneumonitis. Plaintiff was subsequently admitted to Hahneman Medical College in Philadelphia, Pennsylvania, in January 1966, to undergo a vena cava plication to correct this condition. He never returned to his union work as a carpenter.

From the time of the first operation in 1965 until 1969 plaintiff filed no income tax returns because of his low income. He was deemed totally disabled by the Social Security Administration pursuant to 42 U.S.C.A. ยง 406 et seq. and began receiving monthly social security disability benefits in mid-1966. He was also deemed totally disabled under the terms of a Prudential Life Insurance policy for purposes of the waiver of premium benefit. The policy contains the following paragraph:

(a) Definition of Total Disability. Total disability means complete incapacity of the Insured resulting from disease or bodily injury, to perform any work or engage in any business or occupation for remuneration or profit; no premium shall be waived which falls due in any period during which the Insured is working or is so engaged * * *.

Plaintiff became a member of the fire company on October 8, 1966. As a fire policeman his duties included directing traffic as well as placing and removing flares on roadways during fire company operations. On other occasions he worked in the fire hall, where he built new cabinets and closets and installed panelling. He was not compensated for any of this work. From October 8, 1966 to February 21, 1970 plaintiff answered 174 of the 191 alarms received by the fire company and attended 124 of the 149 fire company meetings scheduled during the period of January 1, 1967 to 1970.

Defendant Continental issued a blanket health and accident policy, as authorized and defined by N.J.S.A. 17:38-17, to the fire company, Policy No. SR-68015634, effective from January 15, 1970 to January 15, 1971. The statute defines blanket insurance policies as follows:

Any policy or contract of insurance against death or injury resulting from accident or from accidental means which conforms with the description and complies with the requirements contained in one of the following three paragraphs shall be deemed a blanket insurance policy.

(a) A policy or contract issued to any railroad, steamship, motorbus or airplane carrier of passengers, which carrier shall be deemed

the policy holder, covering a group defined as all persons who may become such passengers and whereby such passengers shall be insured against loss or damage resulting from death or bodily injury either while, or as a result of, being such passengers.

(b) A policy or contract issued in the name of any volunteer fire department, first aid or ambulance squad or volunteer police organization, which shall be deemed the policyholder, and covering all the members of any such organization against loss from accidents resulting from hazards incidental to duties in connection with such organizations.

(c) A policy or contract issued in the name of any established organization whether incorporated or not, having community recognition and operated for the welfare of the community and not for profit, which shall be deemed the policyholder, and covering all volunteer workers who are members of the organization and who serve without pecuniary compensation against loss from accidents occurring while engaged in the actual performance of duties on behalf of such organizations.

The policy in question is a form policy which is applicable only to volunteer fire companies. It contains benefit provisions which either do, or do not apply, depending upon the coverage chosen and granted, as indicated by the schedule attached to the policy.

Provisions relating to total disability are contained in Benefits D and E. In said schedule the applicable disability of Benefit E, entitled "Total Disability, Weekly Indemnity," was chosen and granted and provides $100 for each week of such disability up to a lifetime maximum. Benefit D provides permanent total disability and does not apply in this case, since it is marked "N/A" on the schedule, which presumably means "not applicable."

Both of these benefits define total disability. Total disability is defined in Benefit D, which was not chosen or granted, as follows:

When as a result of injury and commencing within 30 days of the date of the accident, the Insured is totally and permanently disabled and prevented from engaging in each and every occupation or employment for compensation or profit for which he is reasonably qualified by his education, training or experience, the Company will pay the Permanent Total Disability Indemnity stated in the Schedule, provided such disability has continued for a period equal to

the Maximum Period Payable for Total Disability Weekly Indemnity stated in the Schedule for Benefit E, and is total, continuous and permanent at the end of such period.

Benefit E, which is the applicable benefit in this cause of action, defines total disability as follows:

When, as a result of injury commencing within 30 days after the date of the accident, the Insured is totally disabled and continuously prevented from performing each and every duty pertaining to his regular occupation, the Company will pay the amount stated in the Schedule for Benefit E for each week of such disability, ...

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