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Broccolo v. Horace Mann Mut. Cas. Co.

OCTOBER 22, 1962.

MARY S. BROCCOLO, PLAINTIFF-APPELLEE,

v.

HORACE MANN MUTUAL CASUALTY COMPANY, DEFENDANT-APPELLANT.



Appeal from the Municipal Court of Chicago; the Hon. THOMAS H. FITZGERALD, Judge, presiding. Reversed, judgment for defendant entered here.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 15, 1962.

Defendant appeals from a summary judgment of $878.16, entered in favor of plaintiff, for hospital and surgical benefits under a group insurance policy issued by defendant. The facts, including the nature of the operation and the expenses, are not in dispute. The judgment was entered on the pleadings and affidavits.

Prior to December 16, 1955, defendant issued a group policy to the Illinois Education Association to cover its members. Thereafter, plaintiff, a school teacher and an Association member, executed a "consent" statement and received a certificate of insurance for the "Insurance period 12-16-55 to 12-16-56." No medical examination was made or requested of plaintiff, nor was any questionnaire or statement required as to the previous physical or life history of plaintiff. Subsequently, from August 7, 1956, to August 28, 1956, plaintiff was hospitalized for a hysterectomy. The expenses then incurred for hospital, surgical, and nursing care are the basis of plaintiff's claim.

Defendant denies liability because a clause in the policy states:

"This policy does not cover any loss resulting from sickness contracted or commencing prior to the time a person is insured under this policy, except for such loss occurring two years after the effective date of the policy."

A counteraffidavit to the motion for summary judgment, filed on behalf of defendant, includes photostatic copies of documents delivered to defendant by plaintiff in support of her claim for policy benefits. Plaintiff does not dispute the existence or accuracy of the documents represented, which are her written claim, a statement by the attending physician, and a copy of her hospital record. Plaintiff contends that this counteraffidavit should be ignored, because it was not timely filed, and the trial court record fails to indicate an order granting leave to file it. However, as plaintiff states, "It is in the record, and the trial court gave defendant the benefit of the court's consideration of it, for whatever it was worth; and then entered judgment for plaintiff." We find no prejudicial error and believe it is properly in the record for consideration by this court in passing upon the merits of this appeal.

In plaintiff's written claim for benefits, submitted by her to defendant, she states that the commencement of her illness was November, 1955, and that a physician "first" treated her then, with subsequent treatments "about once every two months."

The statement completed by the attending physician, who performed the hysterectomy, shows he first attended plaintiff in November, 1955; that the nature of her illness was "fibromyomatous uterus"; and in response to the question, "If illness, how long prior to your first examination was the disease contracted or begun?" he answered, "Bleeding for 6 mo." He further answered that he had treated her in his office once every two months.

Defendant contends that the summary judgment in favor of plaintiff was improper because the admitted facts defeat her claim. Plaintiff contends the principal question is the "construction of the exclusion clause here in question."

As stated by plaintiff, "ambiguous provisions or equivocal expressions whereby an insurer seeks to limit its liability will be construed most strongly against the insurer and liberally in favor of the insured." Mosby v. Mutual Life Ins. Co. of New York, 405 Ill. 599, 607, 92 N.E.2d 103 (1950).

However, as defendant argues, the rule to be applied here is stated in Lundquist v. Illinois Life and Acc. Ins. Co., 24 Ill. App.2d 316, 323, 164 N.E.2d 293 (1960):

"The usual rule of liberal construction of ambiguous provisions of insurance policies in favor of the insured must yield to rules of reasonable construction, and such does not permit the straining of plain, unambiguous language to create a supposed ambiguity where none in fact exists; where the provisions are plain and certain there is no room for construction, and the language should be taken in its plain, ordinary, popular sense."

It is plaintiff's theory that the phrase "sickness contracted or commencing prior" to the policy is ambiguous and must be construed to mean a "sickness" with attendant disability — that there can be no exclusion of benefits because of a prior sickness without prior disability. The principal case cited in support of this theory is Milam v. ...


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