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Lang v. Monarch Life Insurance Co.

OPINION FILED AUGUST 29, 1979.

WILLIAM C. LANG, PLAINTIFF-APPELLANT,

v.

MONARCH LIFE INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Tazewell County; the Hon. CHARLES J. PERRIN, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Plaintiff William C. Lang appeals from a judgment entered adversely to him in an action against his insurance carrier, defendant Monarch Life Insurance Company. There is no dispute as to the essential facts of Mr. Lang's disabled condition and the only question for the court was one of law concerning the construction of the insurance contract. The issue is whether a "rider" to the insurance contract, which provides for lifetime payments in the event the insured loses the "total and irrecoverable * * * use of both feet," would be construed to give coverage to Lang in his disabled condition. The trial court determined that Lang's disabilities, which prevented him from returning to his regular occupation, were not covered by the limiting language involving the "total and irrecoverable loss of the use of both feet," which appears in the rider. Judgment was entered for the defendant-company as a result of section 64(3) motion for judgment. (Ill. Rev. Stat. 1977, ch. 110, par. 64(3).) Lang contends, on appeal, that the trial court erred in its construction of the contract and in its consequent entry of judgment for the defendant.

As noted, the facts in this case are not in dispute. In 1967, Lang entered into an insurance contract with Monarch Life. Parts 1 and 2 of the policy provided for monthly "indemnity" payments to Lang in the event he was totally disabled by sickness or injury. Those parts defined "total disability" with reference to an insured's ability to engage in gainful occupation for which he is reasonably fitted by education, training and experience. In the event of such total disability, caused by accident, the policy provided for $300 monthly payments for a maximum period of five years. Part 2 of the policy, and the policy schedule to which it refers, sets forth the nature and timing of the payments.

Another pertinent provision of the policy, Part 3, entitled "Benefits for Specific Loss," states that if injuries result in the

"* * * total and irrecoverable loss (by actual severance or otherwise) of the use of * * * both feet * * * then for as long as the loss continues the Insured will be deemed to be totally disabled regardless of his ability to engage in any occupation * * *."

Also attached to the basic policy provisions was an L B rider (lifetime benefits) which provided, in pertinent part, that if injuries resulted in the

"* * * total and irrecoverable loss * * * (by actual severance or otherwise) of the use of * * * both feet * * * then the indemnity provided by Section A of Part 2 of this policy will be payable for as long as such loss continues during the lifetime of the Insured, regardless of the Maximum Indemnity Period specified in the Policy Schedule."

There was also a P C rider attached to the policy which, in its pertinent part, provided for a lump sum payment to the insured in the event that both feet were actually severed. Other portions of the policy are not pertinent to the issue raised on appeal.

In October of 1972, while he was engaged in his occupation as a plasterer, William Lang fell from a scaffold and sustained serious injury to his back and hips. Since the fall, he has had difficulty walking and moving about. He has been unable to engage in activities requiring any strenuous use of his lower extremities. He has been physically unable to return to his previous occupation as a plasterer. The evidence indicated that Lang suffers considerable pain when walking even short distances and that he must use the aid of a cane. He needs similar support in effecting most movements. He has been unable to cross his legs for six years and experiences extreme pain when squatting. He can only drive short distances in his automobile and then must manually move his leg from accelerator to brake. Any lifting is painful for him, and he is restricted to the most limited manual tasks (occasionally helping with light household chores). He cannot climb a ladder and has difficulty dressing himself. His only education, training and experience, occupationally, have been in the manual trades, specifically laboring and plastering. It is, therefore, clear from the record that he is severely disabled and can no longer engage in such occupations as a result of his disabilities.

An orthopedic surgeon, testifying as to Mr. Lang's problems, concluded that Lang was suffering from a degenerative bilateral aseptic necrosis of the femur bone, combined with narrowing of the joint space in the hip. Essentially, both hip joints are severely damaged. The doctor noted that there was a surgical procedure available, the replacement of the hip joints, which would result in the alleviation of some of the pain and in an increase in mobility for the hip. The doctor noted, however, that even after successful hip replacement surgery, Lang would be unable to return to any strenuous activities. Mr. Lang indicated that unless the pain became unbearable he did not intend to have the surgery performed. The doctor testified that he had successfully performed the surgery a number of times but that it was expensive and involved potential complications. Mr. Lang is 40 years old and has a wife and three children.

Under the terms of the policy in Parts 1 and 2, Mr. Lang received monthly disability payments of $300 for the maximum five-year period specified in the policy schedule. In October 1977, the insurer stopped making payments. Plaintiff Lang then brought the present action, claiming that further payments had become due him under the "total and irrecoverable loss of the use of both feet" coverage provided in the L B rider. The trial court, as we have noted, entered judgment against Lang at the close of this case and found, as a matter of law, that the L B rider did not afford coverage to Lang.

• 1-3 The basic rules with respect to construction of insurance contracts are well established. As noted in J.M. Corbett Co. v. Insurance Co. of North America (1976), 43 Ill. App.3d 624, 626, 357 N.E.2d 125:

"[W]here a contract of insurance consists of a policy and other papers or documents, executed as a part of one transaction and accompanying the policy or incorporated therein by attachment or reference, they must be construed together in order to determine the meaning and effect of the insurance contract. [Citations.]" (See Weiss v. Bituminous Casualty Corp. (1974), 59 Ill.2d 165, 171, 319 N.E.2d 491.)

In the instant case, we must look to the basic policy provisions and the rider attached thereto in construing the language used therein. Other rules applicable to construction of insurance contracts were concisely set forth in Olipra ...


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