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08/07/97 BILLY F. FAULKNER v. ALLSTATE LIFE

August 7, 1997

BILLY F. FAULKNER, PLAINTIFF-APPELLEE,
v.
ALLSTATE LIFE INSURANCE CO., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Jackson County. No. 93-L-193. Honorable C. David Nelson, Judge, presiding.

The Honorable Justice Hopkins delivered the opinion of the court. Maag, J., and Chapman, J., concur.

The opinion of the court was delivered by: Hopkins

The Honorable Justice HOPKINS delivered the opinion of the court:

Defendant, Allstate Life Insurance Company, appeals from the October 15, 1996, order of the Jackson County circuit court in favor of plaintiff, Billy F. Faulkner. This case is on appeal to this court for the second time. In the first appeal, we reversed and remanded for a new trial before a different judge. Faulkner v. Allstate Life Insurance Co., No. 5-95-0343 (May 3, 1996) (unpublished order underSupreme Court Rule 23 (134 Ill. 2d R. 23)). On remand, the trial court found that plaintiff was covered under an accidental death and dismemberment policy is sued by defendant. The trial court ordered defendant to pay plaintiff $50,000 plus the costs of the suit. In this appeal, defendant argues that the trial court's finding that plaintiff's injury was covered under the policy is against the manifest weight of the evidence. We affirm.

For the purpose of this appeal, we will reiterate only those facts relevant to this appeal. For a more complete procedural history and factual scenario, please refer to Faulkner, No. 5-95-0343 (May 3, 1996) (unpublished order under Supreme Court Rule 23).

Plaintiff suffers from diabetes and severe vascular disease. As a result of those conditions, plaintiff underwent surgeries to his left leg in 1988 and 1989. In 1990, plaintiff injured his left leg, which caused a blood clot to form in his leg. The clot was surgically removed, and plaintiff reported that his leg was doing much better when he met with his physician, Dr. Edwin L. Grogan, in May of 1991. On June 21, 1991, defendant twisted his ankle when trying to enter his truck. Surgery was performed on plaintiff's leg to repair occlusion or blockage of his blood vessels and clotting of the grafts on his leg from the previous surgeries. However, the leg could not be saved, and it was amputated above the knee on August 23, 1991.

The issue that was before the trial court and which is presented to this court for the second time is whether the amputation of plaintiff's leg is an injury as defined in the policy of insurance:

"'Injury' means bodily injury caused by an accident occurring while the insurance is in force and which injury results, within 365 days of the accident, directly and independently of all other causes, in any of the losses to which the insurance applies, to wit, death, dismemberment and the total and irrecoverable loss of sight." (Emphasis added.)

Defendant argues that we should reconsider the order we entered in the first appeal and find that it is palpably erroneous. Prior to the first appeal, the trial court entered judgment in favor of defendant, finding in relevant part as follows:

"l. The relevant term of the policy, 'directly and independently of all other causes', is not ambiguous and has no need for interpretation.

m. To be excluded from coverage 'the injury must have been caused solely by a proximate cause which is excluded under the policy.' Stated slightly differently, the amputation must have been caused 'directly and independently of all other causes'.

n. The testimony of Dr. Grogan that 'Mr. Faulkner would haveended up with his leg amputated, regardless of whether or not he had had the incident[,]' clearly and unequivocally resolves the issue of whether the amputation was the result of the incident or of the medical condition of the plaintiff."

Plaintiff appealed to this court, and we rendered our first decision, reversing the trial court's judgment in favor of defendant. In resolving the first appeal, we held that the case of Carlson v. New York Life Insurance Co., 76 Ill. App. 2d 187, 222 N.E.2d 363 (1966), was controlling. In our application of Carlson to the facts of this case, we held that "in order for Allstate to avoid liability in the instant case, it must show that the amputation was not proximately caused by the June 21, 1991, accident." Faulkner, Rule 23 order at 10. We determined, "The issue is not whether the amputation was caused solely by the accident, but whether the amputation was caused solely by the preexisting condition, such that the June 21, 1991, accident was not a proximate cause." Faulkner, Rule 23 order at 12.

After we reversed the trial court's first order, the parties submitted the case to the trial court for a decision on the record without offering any additional evidence. On October 15, 1996, the trial court entered an order in favor of plaintiff, finding that the amputation of plaintiff's leg was not caused solely by his preexisting condition and that the June 21, 1991, accident was a proximate cause of the amputation. The court ordered ...


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