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Perschall v. Met. Life Insurance Co.

OPINION FILED MARCH 7, 1983.

TRESEA PERSCHALL, PLAINTIFF-APPELLEE,

v.

METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Disability insurance claim.

"Vexatious" delay in benefits?

The trial court so held.

We affirm.

Tresea Perschall brought this action for insurance benefits under a group disability policy issued by Metropolitan Life. In addition to the claim for disability benefits, she sought punitive damages for defendant's alleged "vexatious and unreasonable" delay in meeting its obligations under the policy. Following a jury trial, the trial court entered judgment on the verdict against the defendant for $9,369.21 in actual damages, allowed attorney's fees and ordered punitive damages equal to 25% of the verdict.

The crucial facts are not in dispute. Plaintiff was covered by a group long-term disability insurance policy issued by the defendant. Benefits were payable under this policy during an insured's "total disability." By the terms of the policy, an insured is deemed totally disabled during his first 12 months of absence if he is "unable, because of illness or injury, to perform any and every duty of his occupation." For absence beyond the first 12 months, however, an insured is entitled to disability benefits if he is, "because of illness or injury, unable to engage in any gainful occupation for which he is reasonably fitted by education, training or experience and is under the care of a physician, if necessary, for any treatment of his disability."

Plaintiff was employed in light assembly at General Electric Company at the onset of her disability. Beginning June 21, 1977, she absented herself from her job for an extended period due to pain and swelling in her right hand and wrist. It is undisputed that plaintiff received disability benefits under the group policy for 12 months following her departure from work, i.e., from June 21, 1977, until June 21, 1978. After that period, however, the defendant repeatedly denied plaintiff's request for benefits.

The evidence showed that Dr. Seymour Goldberg served as plaintiff's family physician from 1966 until some time in 1978. The doctor testified that he treated plaintiff for the wrist condition on June 24, 1977, and told her then to stay off work. He saw her periodically until her final office visit on October 17, 1978. According to Dr. Goldberg, the prescription for plaintiff's medication would have supplied her until the end of 1978. He stated that she could have refilled the prescription beyond that date without his personal knowledge.

In a letter to plaintiff's employer, dated July 5, 1978, Dr. Goldberg indicated that plaintiff would never be capable of gainful employment again. In a second letter, dated October 2, 1978, he again expressed that opinion and diagnosed plaintiff's illness as rheumatoid arthritis. At trial, the doctor recanted this opinion and diagnosis, stating that the diagnosis was never proved and that plaintiff would be capable of sedentary employment.

On January 23, 1980, plaintiff first saw Dr. Chaiyakiati Napombejara, a specialist in rheumatology. On that date the doctor observed tenderness and inflammation in plaintiff's hands, wrists and feet. Based in part on Dr. Goldberg's records of plaintiff's past condition, Dr. Napombejara diagnosed plaintiff's illness as rheumatoid arthritis. He continued to see plaintiff on a regular basis and prescribed new medication to treat her condition. Within six months, the pain and stiffness in plaintiff's joints had improved substantially, and the doctor released her to return to work on June 18, 1980.

I. On appeal, defendant contends that the trial court erred in refusing to grant a motion for directed verdict made at the end of the plaintiff's evidence, because plaintiff did not establish that she was under the care of a physician after June 21, 1978, and as such, the proof of her total disability was insufficient. We find that this issue has not been properly preserved for appeal. The denial of the motion for directed verdict is waived, first, because defendant proceeded to produce evidence of its own following the denial of the motion. (Lynn v. Lynn (1960), 21 Ill.2d 131, 133, 171 N.E.2d 53, 55; see People ex rel. Kubala v. Woods (1972), 52 Ill.2d 48, 54, 284 N.E.2d 286, 290.) Secondly, defendant failed to avail itself of the opportunity to reassert the motion at the end of all the evidence. See Crum v. Krol (1981), 99 Ill. App.3d 651, 658, 425 N.E.2d 1081, 1086; Goldberg v. Capitol Freight Lines, Ltd. (1942), 314 Ill. App. 347, 352, 41 N.E.2d 302, 305.

Even if this issue were properly before this court, reversal would not be required. Plaintiff testified that she could not recall the exact date of her last office visit with Dr. Goldberg, but she indicated that it could have been as late as October 17, 1978. In this court, defendant concedes that plaintiff saw Dr. Goldberg on that date. Plaintiff also testified that she continued using the prescription medicine given to her by Dr. Goldberg into 1979. She followed the doctor's directions to stay off work until early 1980. This evidence would establish prima facie proof that plaintiff was under the care of a physician after June 21, 1978.

Defendant disputes that plaintiff's use of prescription medicine without more does not constitute "care of a physician" within the meaning of the policy. As we have indicated, however, the evidence did show more. Further, any ambiguity in the policy language would be construed in favor of the insured. Menke v. Country Mutual Insurance Co. (1980), 78 Ill.2d 420, 423, 401 N.E.2d 539, ...


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