Dowdall v. Commercial Travelers Mutual Accident Ass'n of America
Dowdall v. Commercial Travelers Mutual Accident Ass'n of America
Opinion of the Court
This is an action on an insurance policy to recover disability benefits. At the close of the evidence the defendant presented a motion for a directed verdict, which was granted, subject to the plaintiff’s exception. The judge thereupon reported the case, and the sole question is whether the judge erred in allowing the motion.
It was agreed that the plaintiff was a holder of an insurance policy issued by the defendant on November 10, 1952, and that the plaintiff had paid the required premiums up to the time he became incapacitated. The policy provided for weekly payments of $50 for a period of fifty-two weeks in case the assured was totally disabled by disease or sickness. For twenty-one years prior to the issuance of this policy the plaintiff was the holder of a similar type of policy issued by the defendant. The weekly benefits under the earlier policy were one half the amount called for in the later policy. Attached to the new policy was a photostat of the plaintiff’s application for that policy; a photostat of the plaintiff’s application for the old policy was likewise attached. It was agreed that the plaintiff was totally disabled from December 18,1958, to the time of the trial. And the cause of this disability (multiple sclerosis) is not in dispute.
On January 2, 1959, the plaintiff filled out and submitted to the defendant a form entitled “Preliminary Report of Sickness” in which, among other things, he stated that he first learned that he had multiple sclerosis in June, 1954, when he consulted an eye doctor. The diagnosis was confirmed in 1955 while the plaintiff was undergoing treatment in a hospital. The plaintiff testified that from ‘ ‘ 1944, with the exception of remissions . . . [he had] had trouble with his arms and legs.” Answers to interrogatories in another action were put in evidence in which the plaintiff stated that he had learned in 1954 that he had “had that disease since 1944.”
On the basis of the foregoing evidence, as to which there was virtually no dispute, we are of opinion that the plaintiff’s disability resulted from a disease “originating” several years prior to the issuance of the policy on November 10,1952. While the definitive diagnosis was not made until later, it is apparent that the progress of the disease was
The plaintiff contends that by attaching to this policy the application for the earlier (1931) policy the defendant “must have intended to convey the meaning that the [second] policy . . . [was] a continuation” of the earlier policy, and “that at least the insured had the continuance of the benefits” of the earlier policy. All that the second policy did, it is argued, was to increase the benefits of the first policy. In support of this contention, the plaintiff relies on a clause under the heading “Standard Provisions” which reads: “1. This certificate includes the endorsements and attached papers.”
Judgment for the defendant.
Although we have referred to the contract of insurance as a policy, it is called a “certificate” in the contract.
In the policy the insurer is called “Association” and the policyholder is called “member.”
The policy contained a clause that it shall “for all purposes be deemed to be executed, issued and delivered within, and to be construed in accordance only with the laws of, the State of Hew York. ’ ’ Whether, in view of the fact that the plaintiff is a resident of this Commonwealth, Hew York rather than Massachusetts law would govern need not be decided (see Restatement 2d: Conflict of Laws, Tent, draft no. 6, I960, § 346h), for the law is the same. See Reiser v. Metropolitan Life Ins. Co. 262 App. Div. (N. Y.) 171, affd. 289 N. Y. 561.
Reference
- Full Case Name
- Thomas H. Dowdall v. The Commercial Travelers Mutual Accident Association of America
- Cited By
- 14 cases
- Status
- Published