Appeal from the Circuit Court of Kankakee County; the Hon.
Patrick M. Burns, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Aaron Crowell was insured under a disability income insurance policy by Life Investors Insurance Company of America. According to the terms of that policy, issued January 1, 1975, in the event of Crowell's disability from injury or sickness, the insurer would pay the policy premiums and make payment of Crowell's mortgage obligation. On December 1, 1978, the insurer canceled the policy, and Crowell brought suit in the circuit court of Kankakee County alleging that the cancellation was wrongful under the terms of the policy. The circuit court disagreed with Crowell's allegations, and granted a motion for summary judgment offered by the insurer. Crowell seeks our review of that judgment.
As stated earlier, the subject policy of insurance was issued on January 1, 1975. Thereafter, on January 25, 1977, Crowell came under the care of Dr. Harold Keegan for cervical, muscular and ligamental strain. The terms of the policy require the insured to file written proof of loss, that is, proof of disability, on claim forms furnished by the insurer. In compliance with this requirement, Dr. Keegan sent a claim form to the insurer on February 15, 1977, in which he declared that Crowell was disabled for a period of "undetermined" duration. Again on March 25, 1977, Dr. Keegan reported that Crowell's disability would continue for an "undetermined" period. Finally, on April 27, 1978, the doctor reported that he had not examined Crowell since February 28, 1978, but had referred the patient to Dr. Eugene Anderson.
During the entire period that Crowell was under Dr. Keegan's care, he received disability insurance benefits under the subject policy.
Dr. Anderson examined the insured on at least one occasion in March of 1978. Following that examination, Dr. Anderson submitted a claim form to the insurer in which he concluded that Crowell was disabled and would continue as such until September 4, 1978. Dr. Anderson also suggested that Crowell make an appointment to be examined by Dr. Jonas Mileris. The plaintiff-insured alleged that he again saw Dr. Anderson in early August and late August of 1978, but the occurrence of this is not material to the issues which subsequently arose.
Crowell's benefits continued to be paid by the insurer based upon Dr. Anderson's medical evaluation.
When Crowell telephoned the office of Dr. Mileris in August or September, he was advised that the first available appointment date was February 14, 1979. Before this appointment could be kept, Crowell was contacted by the insurer and reminded that the September 4 date set forth in Dr. Anderson's letter had passed, and if benefits were to continue, Crowell would be required to submit continuing proof of disability. Crowell allegedly advised the insurer that his next appointment was not scheduled until February, but offered to submit to an examination by a physician designated by the insurer. That examination was conducted by Dr. Luis Martinez on September 27, 1978. At that time, according to the plaintiff, the doctor advised him that he continued to be disabled, but in a written report to the insurer, Dr. Martinez stated that Crowell could be "expected to work at some occupation that would not immediately entail * * * stress loads to the upper extremities and to the neck."
The subject policy defined disability as a total inability to engage in any employment for which the insured is qualified, and since Dr. Martinez determined that Crowell could be "expected to work" at occupations with certain limitations, the insurer issued its final disability check and advised Crowell that his benefits were being terminated. Those benefits, as mentioned at the outset, included the periodic payment by the insurer of Crowell's mortgage obligation and the payment of premiums on the subject policy.
Following this notice, Crowell failed to make the premium payments due on the policy, although he alleges that agents of the insurer advised him that the company would take no further action until receiving the results of Dr. Mileris' February exam. On December 1, 1978, because of nonpayment of premiums, the insurer canceled the subject policy.
On the date previously scheduled, Crowell visited Dr. Mileris, who concluded that the plaintiff was disabled. A proof of claim, executed by the doctor, was submitted to the insurer on February 27, 1979. Another proof was submitted on April 16, 1979, and in this report Dr. Mileris stated that Crowell was most likely not able to hold employment because of disability during the six-month period prior to February 14, 1979. Nevertheless, the insurer, having canceled the policy in December of the previous year, refused to reinstate the policy and provide coverage. Crowell's claim was denied and the instant lawsuit commenced.
The circuit court, having before it the pleadings, affidavits, and documentary evidence which, taken together, recount in substantially uncontradicted fashion the facts of this dispute as herein set forth, granted the insurer's motion for summary judgment concluding that the subject policy was properly canceled for nonpayment of premiums. In his brief before this court, Crowell asserts that the judgment of the circuit court ignores four disputed issues of material fact.
First, Crowell argues that he did not cease to be disabled in September 1978, and that Dr. Mileris' diagnosis, filed with the insurer seven months later, substantiates this fact. Second, the plaintiff urges that the medical evaluation conducted by Dr. Martinez was an insufficient basis for terminating his benefits because the doctor failed to conduct a Naffziger test and a Sperling compression test. Third, the briefs of the appellant assert that the insured's disability benefits were wrongfully terminated, as Crowell was under the regular care and personal attendance of a physician during the relevant period as required by the policy. Finally, Crowell contends that he complied with the policy requirements for filing proof of loss in a timely manner. In reviewing the record on appeal, and the terms of the subject policy of insurance, we concur that one or more unresolved disputes of material fact were present in the case at bar such that a motion for summary judgment should not have been granted.
• 1 The certificate of insurance upon which Crowell's claim is based provides for proof of loss as follows:
"Proofs of Loss: Written proof of loss must be furnished to the Company at its said office in case of claim for loss for which the policy provides any periodic payment contingent upon continuing loss within 90 days after the termination of the period for which the Company is liable. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably ...