Opinion
36265.
DECIDED SEPTEMBER 24, 1956.
Action on scholastic accident policy. Before Judge Mulling. Savannah Municipal Court. April 17, 1956.
William F. Braziel, George W. Williams, Bouhan, Lawrence, Williams Levy, for plaintiff in error.
Alton D. Kitchings, contra.
A scholastic accident insurance policy, insuring school children of a named county against designated accidental injuries and medical expenses resulting therefrom, does not, when properly construed, cover medical expenses incurred in repairing a hernia, where, by the exclusions clause of the policy, it is provided that "no payment of any kind shall be made for injury, death or any other loss caused, wholly or partly, directly or indirectly, by . . . hernia of any kind, however caused," although the hernia may have been occasioned by an accidental injury within the meaning of the general insurance agreement.
DECIDED SEPTEMBER 24, 1956.
On March 21, 1956, H. G. Morgan, as guardian and next friend of his son, Richard Morgan, brought an action in the Municipal Court of Savannah upon a scholastic accident insurance policy against the Pilot Life Insurance Company. The material allegations of the petition as finally amended are substantially as follows: The defendant was, and is, in the business of issuing school accident insurance covering children attending the schools in Chatham County, and at the time of the accident hereinafter described, the defendant had a blanket policy filed with the Board of Education of Chatham County, and the plaintiff's son was insured under that policy and plan of insurance. On October 11, 1955, the plaintiff's son was a student of the Thunderbolt School and was in attendance upon the school ground. He was engaged in a game of play and received a severe blow in the stomach when he collided with a fellow schoolmate. Among his injuries, he sustained a severe bruise in the stomach. A large knot immediately arose about the area and it was immediately thereafter determined that the blow and accident had caused a hernia on the child's right side. The child was, at the time, playing touch football with several of his schoolmates and collided with one of them and some part of the other child's body struck the plaintiff's son on the right side of his lower stomach. It was necessary to perform an operation on the plaintiff's son to repair the damage and this operation was performed on November 11, 1955. The hospital bill amounted to $93.75, and the doctor's bill amounted to $165, making a total medical expense of $258.75. Prior to the operation, the child's parents called upon the defendant's agency, located in Savannah, and were assured that the defendant would pay the claim. Thereafter, when the claim was submitted to the home office in Greensboro, North Carolina, on or about November 18, 1955, the defendant refused to pay the claim and has continued to refuse to pay it although repeated demand has been made for a longer period than 60 days. The entire theme of the policy is to afford protection against school accidents and to provide medical benefits for which a premium was paid. The plaintiff's son was injured in a school accident and the defendant has, in bad faith, refused to pay the medical benefits provided for under the terms of its insurance policy, and the plaintiff claims damages for which provision is made in Code § 56-706.
The relevant provisions of the policy attached to the petition are substantially as follows. On the first page the policy is headed by a statement in bold-faced type that "This policy insures against loss due to accidental bodily injuries only to the extent provided and limited herein." Following the caption is a boxed schedule showing the effective date, the termination date, the premium rate per person, the accidental death benefit of $1,500, the maximum medical and rental expense benefit of $2,500. The insuring clause following this schedule provides: "In consideration of the application of the policyholder for this policy, a copy of which application is attached hereto and made a part hereof, and in consideration of the payment of the premiums for this policy as hereinafter provided, Pilot Life hereby agrees to make the payments herein provided with respect to the several persons insured hereunder in accordance with and subject to the provisions of this policy, the provisions hereinafter contained are part of this policy as fully as if recited over the signatures hereto affixed." Following the signatures is the following provision in bold-faced type: "This is a limited policy. Read it carefully. This policy is not renewable. It provides benefits for loss of life, limbs, or sight caused by accidental bodily injuries and for medical expenses incurred due to accidental bodily injuries, to the extent herein limited and provided." On Page 2, the terms and provisions of the policy under capitalized captions are set forth as follows: "Persons insured hereunder"; "Definitions"; "The insuring agreements" which in part provide: "If any person, as a result, directly and independently of all other causes, of bodily injury caused by an accident occurring while insured hereunder and while (1) attending school during the hours and on the days when school is in session; (2) . . . (3) . . . (4) . . .(5) . . . (which injuries are herein called `such injuries') shall suffer loss of life, hands, feet, or sight within ninety days following the date of the accident causing such injuries or shall incur expenses for hospital confinement, professional ambulance service or the services of a physician, dentist, or registered nurse commencing within sixty days and occurring within twelve months following the date of the accident causing such injuries, Pilot Life shall pay, subject to the terms and conditions of this policy, the benefits hereinafter provided." The insuring agreements are followed by Part A. "Accidental death benefit"; Part B. "Accidental dismemberment benefit" (including the dismemberment schedule); Part C. "Medical and dental expense benefits" which provides as follows: "If, as the result of such injuries and upon the recommendation of a physician, an insured person is confined to a hospital, treated by a physician or dentist, transported to or from a hospital by a professional ambulance service or requires private duty nursing service by a registered nurse, and if such confinement, treatment or service commences within sixty days and occurs within twelve months following the date of the accident causing `such injuries' Pilot Life shall pay an amount equal to the insured proportion as specified in the schedule on the face page of this policy [100 percent], of the reasonable and customary charges actually made for such confinement, treatment and services which exceed the deductible amount, if any, shown in such schedule, provided that the total payment for all such confinement, treatment and services on account of the injuries sustained in any one accident shall not exceed the maximum medical and dental expense benefit shown in such schedule"; Part D. "Benefits for deferred dental treatment"; and then "Exclusions," which among other things provide: "No payment of any kind shall be made for injuries, death, or any other loss caused, wholly or partly, directly or indirectly, by (1) . . ; (2) . . ; (3) . . ; (4) Hernia of any kind, however caused, . ." The policy also provides that "All benefits of this policy shall be payable to the persons insured, if living, (otherwise to the executors or administrators of the person insured) except that if the person insured be a minor, such payments will be made to the parent, guardian, or other person appearing to Pilot Life to be actually supporting the person insured."
The defendant's general demurrer to the petition as finally amended was overruled and it assigns error here upon that judgment.
It is admitted by counsel for the defendant that the accident occurred at a time and in a manner, which under the terms of the policy, would impose liability upon the defendant for the medical and hospital expenses incident to the repair of the hernia sustained by the plaintiff's son were it not for the exclusion provisions contained in the policy.
The only issue presented for determination is whether, as a matter of law, the policy of insurance, properly construed, covers the medical and hospital expenses necessitated by the accident. Counsel for the defendant contend that the expenses sought to be recovered were caused by the hernia which the plaintiff's son sustained as the result of an insurable accidental injury, and the expenses occasioned by hernia are, by the terms of the policy excluded. Counsel for the plaintiff contends on the other hand that the expenses were occasioned by an insurable accidental injury, were not caused by the hernia, and that the hernia was only one of the incidents of the insurable accidental injury.
The words used in policies of insurance, as in all other contracts, bear their usual and common significance (Code § 20-704 (2)), and policies of insurance are, as all other contracts, to be construed in their ordinary meaning. "In construing contracts, "The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.' Code, § 20-702. `The contract of insurance should be construed so as to carry out the true intention of the parties.' § 56-815. It was said by this court in Great American Indemnity Co. v. Southern Feed Stores, 51 Ga. App. 591 ( 181 S.E. 115): `While a policy of insurance is to be construed liberally in favor of the object to be accomplished, and its provisions will be strictly construed against the insurance company, and where it is susceptible of two constructions, that construction will be adopted that is most favorable to the insured, yet a contract of insurance should be so construed as to carry out the true intention of the parties, and their rights are to be determined by its terms so far as they are lawful, and the language of the contract should be construed in its entirety, and should receive a reasonable construction and not be extended beyond what is fairly within its plain terms; and where the language fixing the extent of the liability of the insurer is unambiguous and but one reasonable construction is possible, the court must expound the contract as made.' See Quillian v. Equitable Life Assurance Society, 61 Ga. App. 138 ( 6 S.E.2d 108); Morris Plan Bank v. Ginn, 56 Ga. App. 681 ( 193 S.E. 783); Fisher v. American Casualty Co., 194 Ga. 157 ( 21 S.E.2d 68); Marbut v. Empire Life Insurance Co., 143 Ga. 654 (b) ( 85 S.E. 834.)" Robinson v. Washington National Ins. Co., 72 Ga. App. 19 ( 32 S.E.2d 855). These rules of construction are rather cogently summarized by the supreme court of one of our sister States in a case involving a policy of insurance containing almost the same language as the policy under consideration as follows: "It is the function of the court to construe a contract of insurance as it is written, and the court by construction cannot create a liability not assumed by the insurer, nor make a new contract for the parties, or one different from that plainly intended, nor add words to the contract of insurance to either create or avoid liability." Miller v. World Insurance Co., 76 Idaho 355 ( 283 P.2d 581).
We think the contract of insurance is unambiguous and subject only to the construction implied by the policy. Under the "exclusions" clause of the policy, "No payment of any kind shall be made for injury, death or any other loss caused, wholly or partly, directly or indirectly, by . . . hernia of any kind, however caused." This language is clear. The medical expenses covered by the policy under the general insurance agreements are such as result from an insurable accidental injury. The injury sustained by the plaintiff's son was such an injury under the general insurance agreements. He was accidentally struck in the stomach and injured by a fellow student while playing touch football at school. However, losses caused, wholly or partly, directly or indirectly, by hernia, however caused, are, by the exclusions clause, removed from the general insurance agreements. The hernia sustained by the plaintiff's son was caused by his accidental injury, but the expenses sought to be recovered were occasioned by the hernia — the petition reveals no expenses save those occasioned in repairing the hernia — and those expenses are not covered by the terms of the policy, for, by the exclusions clause, it is provided that losses caused by hernia are not compensable "however" the hernia was caused. The expenses sought to be recovered, consequently, come within the terms of the exclusions clause and not within the terms of the general insurance agreements even though the hernia was occasioned by an insurable accidental injury, for it matters not how the hernia was caused, no payment is to be paid for losses caused, "wholly or partly, directly or indirectly, by hernia."
The line of cases, exemplified by Atlanta Accident Association v. Alexander, 104 Ga. 709 (2) ( 30 S.E. 939, 42 L.R.A. 188), upon which the plaintiff relies, are distinguishable from the present case on the basis of the language in which the exclusion clause in those cases was couched.
In Thornton v. Travelers Ins. Co., 116 Ga. 121, 126 ( 42 S.E. 287, 94 Am. St. R. 99), a case following the Alexander case, the Supreme Court said: "Accident policies generally contain a clause, the purpose of which is to relieve the insurer from responsibility in case of death or disability of the insurer from disease. The language of this clause is not the same in all policies, and the determination of the question whether under such a clause the company is relieved in a particular case, depends upon the exact language in which the exception [exclusion] is couched."
The plain import of the language of the exclusion clause of the policy presently under consideration is that the policy is not to insure against injuries resulting from disease, nor injuries resulting in hernia or as the result of hernia. The phrase, "hernia, however caused," can have no other reasonable import, as the phrase, "however caused," is to our minds all inclusive. The word "however" used in this context in the exclusion clause bears its usual and ordinary meaning, and is defined by every reputable dictionary to mean "in whatever manner, way, or state; by whatever means."
The expenses sought to be recovered by the plaintiff are not covered by the terms of the policy, construed as an entire contract, and the trial court, consequently, erred in overruling the defendant's general demurrer thereto.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.