22 N.C. App. 392 | N.C. Ct. App. | 1974
Plaintiff contends that the trial court erred in submitting the second issue to the jury. He argues that he should not have been required to continue seeing Dr. Harer after October 1969, since his knee condition had stabilized by that time and further medical treatment would not have been of benefit to him. Defendant does not contend that plaintiff could have benefited from further treatment, but simply argues that under the express terms of the policy plaintiff was required to continue to be under the regular care of a doctor as long as he received benefits.
North Carolina law recognizes the rule that insurance contracts are construed in favor of the insured and against the insurer. There are two reasons for this rule. First, insurance policies are drafted by the insurance company. “ ‘Its attorneys, officers or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the Court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself.’ ” Jolley v. Insurance Co., 199 N.C. 269, 271, 154 S.E. 400, 401; accord, White v. Mote, 270 N.C. 544, 155 S.E. 2d 75; Electric Co. v. Insurance Co., 229 N.C. 518, 50 S.E. 2d 295; Underwood v. Ins. Co., 185 N.C. 538, 117 S.E. 790. Second, insurance contracts ordinarily are contracts of adhesion. “ ‘They are unipartite. They are in the form of receipts from insurers to the insured, embodying covenants to compensate for losses described. They are signed by the insurer only. In general, the insured never sees the policy until after he contracts and pays his premium, and he then most frequently receives it from a distance, when it is too late for him to obtain explanations or modifications of the policy
The courts of North Carolina have not had occasion to determine whether a clause in an insurance policy requiring regular medical treatment is applicable when such treatment would not improve the insured’s condition. A large number of courts in other jurisdictions, however, have dealt with this problem. See Annot., 84 A.L.R. 2d 375 (1962). Five states hold that the provision must be construed literally and the insured must visit a doctor regularly, regardless of whether he derives any benefit from such visits. Equitable Life Assurance Soc’y v. Burns, 254 Ky. 487, 71 S.W. 2d 1009 (1934) ; Bruzas v. Peerless Cas. Co., 111 Me. 308, 89 A. 199 (1913) ; Lustenberger v. Boston Cas. Co., 300 Mass. 130, 14 N.E. 2d 148 (1938) ; Benefit Ass’n of Ry. Employees v. Cason, 346 S.W. 2d 670 (Tex. Civ. App. 1961) ; Mills v. Inter-Ocean Cas. Co., 127 W.Va. 400, 33 S.E. 2d 90 (1945). But see Shaw v. Commercial Ins. Co., _ Mass. _, _, 270 N.E. 2d 817, 822 (1971). (The case of Isaacson v. Wisconsin Cos. Ass’n, 187 Wis. 25, 203 N.W. 918 (1925), cited by defendant, does not deal with a situation in which the insured’s condition has stabilized so that he cannot benefit from further treatment.)
Thirteen jurisdictions hold that the provision requiring regular medical treatment applies only when regular medical treatment can benefit the insured. Sullivan v. North Am. Accident Ins. Co., 150 A. 2d 467 (D.C. Mun. Ct. App. 1959) ; Reserve Life Ins. Co. v. Poole, 99 Ga. App. 83, 107 S.E. 2d 887 (1959) ; Penrose v. Commercial Travelers Ins. Co., 75 Idaho 524, 275 P. 2d 969 (1954) ; Commercial Cas. Ins. Co. v. Campfield, 243 Ill. App. 453 (1927) ; Brown v. Continental Cos. Co., 209 Kan. 632, 498 P. 2d 26 (1972) ; Mathews v. Louisiana Indus. Life Ins. Co., 11 So. 2d 80 (La. App. 1942) ; World Ins. Co. v. McKenzie, 212 Miss. 809, 55 So. 2d 462 (1951) ; Davidson v. First Am. Ins. Co., 129 Neb. 184, 261 N.W. 144 (1935) ; Yager v. American Life Ins. Ass’n, 44 N.J. Super. 575, 131 A. 2d 312 (1957) ; Hunter v. Federal Cas. Co., 199 App. Div. 223,
It is clear that the majority rule is the better reasoned one, and more in line with the principles followed by the North Carolina courts in interpreting insurance contracts. The purposes of a clause requiring regular medical treatment are to protect the insurer against fraudulent disability claims submitted by healthy policyholders, and to compel a disabled claimant to minimize his damages by consulting a physician and regaining his health as quickly as possible. Neither of these purposes is served by requiring the insured to visit a doctor regularly when the doctor cannot help him. It would be entirely futile for the insured to see a doctor under those circumstances, and the courts are reluctant to require the performance of futile acts. As the Illinois court stated in the Campfield case, supra at 456: “ [W] e are at a loss to understand why it should be necessary [for the insured] to do such a useless thing as to remain under the treatment of a doctor. No claim is made that his condition could, or might, have been improved by such treatment.” In Hodgson v. Mutual Benefit Health & Accident Ass’n, 153 Kan. 511, 518, 112 P. 2d 121, 126 (1941), the court asked:. “Suppose a policy holder is totally and permanently disabled through the loss of sight in both eyes — would any court require the weekly attendance of a physician in order to secure continuing benefits provided by the policy? Obviously not, and such situations are commented upon in many decisions.”
When properly construed, plaintiff’s insurance policy does not require him to make regular visits to a physician when such visits would not improve his condition. The second issue, therefore, was not an appropriate issue to be submitted to the jury. However, as defendant points out, counsel for plaintiff consented to the submission of this issue. Having done so, he cannot object to the issue on appeal. Baker v. Construction Corp., 255 N.C. 302, 121 S.E. 2d 731; Brant v. Compton, 16
But even though plaintiff is bound by his consent to the submission of the second issue, he is entitled to a correct charge on that issue. In every case the court has the duty to instruct the jury correctly on all substantive features of the case. N.C.R. Civ. P. 51 (a) ; Panhorst v. Panhorst, 277 N.C. 664, 178 S.E. 2d 387; Clay v. Garner, 16 N.C. App. 510, 192 S.E. 2d 672; Braswell v. Purser and Purser v. Braswell, 16 N.C. App. 14, 190 S.E. 2d 857, affd, 282 N.C. 388, 193 S.E. 2d 90. The court should have instructed the jury that plaintiff was not required to be under the regular care and attendance of a physician unless regular medical care could have brought about an improvement in his condition. The court’s failure to give such an instruction constitutes prejudicial error.
Since there was error in the charge, there must be a new trial on all issues.
New trial.
