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Kirk v. Financial Security Life Ins. Co.





APPEAL from the Circuit Court of Sangamon County; the Hon. BEN K. MILLER, Judge, presiding.


As is typical in appeals from dismissal pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 48), we will in the instant case follow the rule that uncontested, well-pleaded allegations of fact shall be, for the purposes of review, deemed to be true. Bulk Terminals Co. v. Environmental Protection Agency (1976), 65 Ill.2d 31, 37, 357 N.E.2d 430, 432.

The plaintiff, Christine E. Kirk, is the beneficiary of an insurance policy issued by the defendant, Financial Security Life Insurance Company, which insured the life of her now-deceased husband, John W. Kirk. Under the caption "MULTIPLE ACCIDENTAL DEATH BENEFIT," the policy contained an increased or double indemnity provision which stated:

"ACCIDENTAL DEATH BENEFIT. The Company, while this policy is in full force and effect, other than under the nonforfeiture provisions, WILL PAY an Accidental Death Benefit to the Beneficiary upon receipt at its Home Office of due proof of the accidental death of the Insured which directly shows the accidental death occurred; (1) death resulted directly and solely from an accidental bodily injury, and (2) death occurred within ninety (90) days after the bodily injury, and (3) both the injury and death occurred while this policy was in full force and effect.

The Multiple Accidental Death Benefit will be payable in addition to the Face Amount and will be: DOUBLE INDEMNITY, an amount equal to the Face Amount, or TRIPLE INDEMNITY, an Amount equal to twice the Face Amount if the required due proof also shows that the accidental injury was sustained while he was a fare-paying passenger in or upon a public conveyance operated by a common carrier for passenger service. Any amount payable under the Accidental Death Benefit as either Double, or Triple Indemnity upon the death of the Insured shall be reduced by any amount paid or payable under `Benefit for Loss of Insured's Hands or Feet or Sight' as a result of the same accident, but in no event shall the amount payable hereunder for death benefits be less than the face amount.

The Accidental Death Benefit will be payable in one sum unless otherwise provided by written notice from the Beneficiary.

ACCIDENTAL DEATH DEFINED. The phrase `Accidental Death' means death resulting directly and solely from, (1) an accidental injury visible on the surface of the body or disclosed by an autopsy, or (2) a disease or infection resulting directly from an accidental injury described and beginning within ninety (90) days after the date of the injury, or (3) an accidental drowning."

On January 26, 1974, while the insurance contract was alleged to be in full force and effect, the insured was involved in an automobile accident which severely injured him. The insured was subsequently placed in the intensive care unit of the University Hospital in Jackson, Mississippi, where he underwent two surgical operations and where extraordinary measures were taken to prolong his life. The insured remained at the hospital until April 28, 1974, the date of his death. The date of death was on the 92nd day following the automobile accident which the plaintiff has alleged to be the direct and proximate cause of death.

After unsuccessfully demanding that defendant pay benefits under the double indemnity clause quoted above, plaintiff filed the instant action on January 20, 1976, alleging that the 90-day restriction contained in the clause violated the public policy of Illinois. After defendant filed a motion to dismiss under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 48), the court dismissed the complaint while granting plaintiff leave to file an amended complaint. On July 12, 1976, that amended complaint was filed but, in response to another motion to dismiss, the court orally dismissed the action on November 18, 1976. A written order to that effect was entered on February 8, 1977.

• 1 On appeal, the plaintiff alleges: (1) that the 90-day limitation period contained in the double indemnity clause violates the public policy of Illinois; and (2) that the policy's definition of accidental death is ambiguous, uncertain and incapable of being applied against the plaintiff.

Owing to the fact that we are reviewing a dismissal pursuant to section 48 of the Civil Practice Act, we are not reviewing an issue concerning the causative factor involved in the insured's death. Rather, the scope of this opinion is limited solely to the question of whether the 90-day limitation clause contained in the instant contract violates this State's public policy. Our research has disclosed no Illinois case holding that the 90-day limitation period which is commonly included in double indemnity clauses is against the public policy of this State. Our attention has been directed, however, to Burne v. Franklin Life Insurance Co. (1973), 451 Pa. 218, 301 A.2d 799, wherein the Pennsylvania Supreme Court held that a similar 90-day limitation violated that State's public policy and was unenforceable in circumstances where no question existed as to the insured's cause of death. See Note, Death be not Proud-The Demise of Double Indemnity Time Limitations (1974), 23 DePaul L. Rev. 854; but see Annot., 39 A.L.R. 3d 1311 (1971).

The facts of Burne can be briefly stated. The Franklin Life Insurance Company issued a policy bearing a $15,000 face amount to Bartholomew Burne in 1949. A double indemnity rider providing for an additional accidental death benefit of $15,000 was attached to the policy, but the rider stated that the benefit would only be payable if death occurred within 90 days of an accident. The insured was accidentally struck by an automobile in North Miami, Florida, on January 30, 1957, and, although he suffered severe brain injuries, the use of sophisticated medical equipment and techniques prolonged the insured's life for 4 1/2 years. After the insured's death the insurer conceded that the injuries were the direct cause of death and paid the face amount of the policy. The insurer, however, denied liability under the double indemnity accidental death rider for the reason that death did not ensue within 90 days of the accident.

In ordering that a summary judgment in favor of the insurer be reversed and in directing that a summary judgment be entered in favor of the insured's beneficiary, the court stated:

"The result reached by the trial court presents a gruesome paradox indeed — it would permit double indemnity recovery for the death of an accident victim who dies instantly or within ninety days of an accident, but would deny such recovery for the death of an accident victim who endures the agony of prolonged illness, suffers longer, and necessitates greater expense by his family in hopes of sustaining life even momentarily beyond the ninety day period. To predicate liability under a life insurance policy upon death occurring only on or prior to a specific date, while denying policy recovery if death occurs after that fixed date, ...

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