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Kirk v. Financial Security Life Ins. Co.

OPINION FILED DECEMBER 4, 1978.

CHRISTINE E. KIRK, APPELLEE,

v.

FINANCIAL SECURITY LIFE INSURANCE COMPANY, APPELLANT.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. Ben K. Miller, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Christine Kirk brought this action as beneficiary under the double indemnity accident provision of her husband's life insurance policy. The defendant insurer, Financial Security Life Insurance Company, moved to dismiss the complaint because the insured died 92 days after the accident. The double indemnity provision takes effect only if the assured dies within 90 days of the accident. The Sangamon County circuit court dismissed the complaint and the appellate court reversed, holding that the 90-day provision violates public policy. One justice dissented. 54 Ill. App.3d 192.

The facts are not disputed. On January 26, 1974, John Kirk was seriously injured in an automobile accident in Jackson, Mississippi. From that day until his death, Kirk was given little chance of survival. He died at the University Hospital in Jackson on April 28, 1974, 92 days after the accident.

The defendant insurance company paid the face amount of Kirk's life insurance policy, but refused to pay under the double indemnity provision because the assured died more than 90 days after the accident. The policy provided double indemnity benefits if the following provision was complied with:

"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."

Thus, the benefit provision specifically limits double indemnity recovery to death occurring within 90 days of the fatal accident. The primary question posed by this appeal is whether this 90-day limitation on double indemnity recovery for accidental death is void as against public policy. We hold that this limitation is not against the public policy of Illinois and, as a consequence, we reverse.

As a preliminary matter, it is important to note that where the provisions of an insurance policy are clear and unambiguous, courts> do not hesitate to enforce those provisions fully. (Cobbins v. General Accident Fire & Life Assurance Corp. (1972), 53 Ill.2d 285.) If there is an ambiguity in the policy then that ambiguity is resolved against the maker of the policy, the insurance company. (Lenkutis v. New York Life Insurance Co. (1940), 374 Ill. 136.) Here, the 90-day provision is clear and unambiguous. In order to collect double the face amount of the policy, the assured must meet three requirements. The death must result directly and solely from an accident, the date of death must be within 90 days of the accident, and both the injury and death must occur while the policy is in full force. There is no ambiguity in these three requirements.

The primary question posed is whether this unambiguous 90-day requirement violates Illinois public policy. Similar limitation periods appear in many life insurance policies and until very recently every jurisdiction faced with a challenge to these provisions had upheld them. (Contois v. State Mut. Life Assur. Co. (7th Cir. 1946), 156 F.2d 44, 46 (Ill.); Spaunhorst v. Equitable Life Assur. Soc. of United States (8th Cir. 1937), 88 F.2d 849, 851 (Mo.); Barnett v. Travelers' Ins. Co. (8th Cir. 1929), 32 F.2d 479, 480 (Mo.); Kerns v. Aetna Life Ins. Co. (8th Cir. 1923), 291 F. 289, 290 (S.D.); Orrill v. Prudential Life Ins. Co. of America (N.D. Cal. 1942), 44 F. Supp. 902, 904; Brown v. United States Casualty Co. (N.D. Cal. 1899), 95 F. 935, 936; Bennett v. Life & Casualty Insurance Co. (1939), 60 Ga. App. 228, 3 S.E.2d 794, 795; Clarke v. Illinois Commercial Men's Association (1913), 180 Ill. App. 300, 303; Hickey v. Washington National Insurance Co. (1939), 302 Ill. App. 388; Mullins v. National Casualty Co. (1938), 273 Ky. 686, 688-89, 117 S.W.2d 928, 930; Fontenot v. New York Life Insurance Co. (La. App. 1978), 357 So.2d 1185, 1188; Drinan v. Clover Leaf Casualty Co. (1919), 207 Mich. 677, 679, 175 N.W. 176, 177; Hudson v. Mutual Ben. Health & Acc. Ass'n (Mo. App. 1944), 184 S.W.2d 188, 189; Weickselbaum v. Commercial Travelers Mut. Acc. Ass'n of America (Sup. Ct. Kings County 1954), 129 N.Y.S.2d 612, 612-13; Rhoades v. Equitable Life Assurance Society of the United States (1978), 54 Ohio St.2d 45, 374 N.E.2d 643, 645; Douglas v. Southwestern Life Insurance Co. (Tex. Civ. App. 1964), 374 S.W.2d 788, 791; Crowe v. North American Acc. Ins. Co. (Tex. Civ. App. 1936), 96 S.W.2d 670, 671; 1A J. Appleman, Insurance sec. 612 (1965); Annot., 39 A.L.R.3d 1311 (1971).) Recently, at least two courts> have held these provisions invalid on public policy grounds. Burne v. Franklin Life Insurance Co. (1973), 451 Pa. 218, 301 A.2d 799; Karl v. New York Life Insurance Co. (1977), 154 N.J. Super. 182, 381 A.2d 62.

Though this precise issue has not previously been addressed by this court, several Illinois appellate courts> have approved this type of time limitation. In Clarke v. Illinois Commercial Men's Association (1913), 180 Ill. App. 300, the decedent had been injured on June 14, 1909, and died November 17, 1909. The insurer refused to pay under the double indemnity provision noting that the assured had died beyond the association's 90-day limitation period. The appellate court affirmed the dismissal of the suit, noting:

"The proximate cause of death, especially when it follows at a time somewhat remote from the accident to which it may be attributed, is often the subject of controversy and litigation. Provisions of different kinds, designed to remove or limit a controversy on that subject, are found sometimes in the policies and sometimes in by-laws. Doubtless, the by-law in question had some such end in view.

Its reasonableness would seem to rest upon a theory that if death does not usually result from the injuries received from an accident within ninety days therefrom, it may be reasonably ascribed to other causes prior or intervening. We cannot say that such a time limit is unreasonable." (180 Ill. App. 300, 302.)

A similar time limitation was upheld in Hickey v. Washington National Insurance Co. (1939), 302 Ill. App. 388, where the assured died 60 days after an accident and the accident policy provided benefits only if the assured died within 30 days. Finally, in Shelton v. Equitable Life Assurance Society of the United States (1961), 28 Ill. App.2d 461, the assured lost his leg nearly 3 years after the precipitating accident. Benefits under his policy were denied when the court held that a 90-day provision in the policy violated no known public policy.

Until 1973 the Illinois cases reflected a unanimous rule. In that year the primary case relied on by the plaintiff, Burne v. Franklin Life Insurance Co., held that a 90-day time limitation for double indemnity accidental death benefits violated public policy. In Burne, the assured was kept alive 4 1/2 years by sophisticated medical techniques. The insurer conceded that the sole cause of death was the accident, but argued that under the 90-day requirement the assured's death was outside the policy. The Pennsylvania Supreme Court held that requirement invalid. First, the court noted that the leading cases were well before modern advances in medical science. (451 Pa. 218, 301 A.2d 799, 801.) Such advances had, in that court's view, made the 90-day limit obsolete. Second, the court felt that extraneous matters, such as the eventual receipt of insurance proceeds, should not be a factor in the deliberations on whether and how to prolong life. (451 Pa. 218, 301 A.2d 799, 802.) Third, the court ...


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