*1 OF CO. CAS. v. AMERICAN HEILMAN READING, PA.

No. Appeals

Municipal for the Court of Columbia. District of

Argued May 20, 1951.

Decided Heilman, Washington, C.,

Joseph W. D. appellant. C., McCarthy, Washington, D. Joseph S. Mclnerney, Washing- whom Wilbert brief, ton, C., appellee. D. was on *2 CAYTON, Judge, and Chief' application Before Plaintiff made original for CLAGETT, Judges. policy Associate in February and appli- HOOD 1945. In his cation he stated that he had been dis- CLAGETT, Judge. Associate by abled either accident or illness or re- or surgical ceived medical Heilman, treatment for Plaintiff, recover sued to Louis previous years. five agreed He that due which he claimed were benefits certain falsity any of application answer in the and health an accident upon him would act recovery as a bar to if defendant, made with by the American policy issued materially intent to deceive or if it by affected Company. The case was tried Casualty acceptance of by the risk assumed de- gave judg- jury, a which court without policy 1, fendant. The was issued March appeals. The Plaintiff for ment defendant. provided 1945. It coverage only for ill- any, stipulated recovery, was if of amount ness or accident during the 1, sustained term September interest from $838.33, with as of expressly provided that 1949, of suit. costs and application part was to abe of the indemnity hospi- provided for policy agreement parties. between the expense for surgical and loss of time tal and indemnity policy lapse also Plaintiff allowed the or illness and to to accident due through In November it life accident. and was not of reinstated for loss June by kidney payment premium a ail- of the plaintiff became ill with until December operated 1947. In his on two- later. was weeks for reinstate ment and plaintiff totally through ment from that he had disabled He received was. June surgical no year. compensa- claims medical or He attention of that for the August previous years of for loss of three other amount than in the what was $838.33 tion expense by company.1 known policy and time, itself hospital and provided expenses. might that Due reinstatement be. other miscellaneous ef by payment furnished the This fected of the premium was due claim but that amount com- such reinstatement recover that was would action to cover injury and accidental 1950. illness sustained menced more days than after ten date reinstate recovery defendant contends bar to aAs Were this all ment. was to the there case kidney prior'to condition existed that finding for defendant would have to be and policy that it had issuance sustained.2 misrepre- knowledge of this because relies, Plaintiff by plaintiff. however, made ob- provision Over on a sentations found in a counsel, rider to support defendant was allowed jections contention that evidence that five- defendant during introduce could challenge recovery original applica- period preceding the basis of plain- year prior tiff's medical history. policy, plaintiff rider, suffered had aft- tion er providing that kidney ailment; that he under- had should not cov- from types er certain medical dur- illness X-ray accident, examinations and gone reads:3 time “The period; and March commencement of ing this sickness shall questionable not be in effect policy had been about one after after saidi Policy has physician been consulted a en- he had maintained in force year, for -a consecutive Hopkins Hospital twenty-four (24J a medical tered John months.” examination. company Hospitalization, Turner v. National Inc., refused to allow defendant 1.The D.C.Mun.App., 52 A.2d 274. 1947 until reinstatement signed plaintiff waiver for vari- provision This was followed another operation cosity. had an Plaintiff “Nothing which read: herein contained veins some time vary, alter, varicose shall be held to waive ex or. any collected Declarations, and had benefits issued was tend Agreements, Exclusions Policy or Conditions of therefor. other than as above stated.” applies rule argues that this is in as to “questioning” Plaintiff the time of beginning of an an illness. elapsed 24 months from the since time *3 policies Often life contain insurance of reinstatement in December 1947 until provisions indemnity in cases of dis 1950, this suit was in filed evidence ability. It has been an held that whether that the prior periods ailment to the existed incontestability clause in a life insurance by policy covered and that defendant the policy applicable is disability provi to the was improp- as to misled this condition was depends sions disability pro on the whether erly admitted in the trial below. He con- visions have been specifically excluded from proper tends that there was no contest the incontestability clause.7 Where the two-year period. of the claim within the disability provisions clause has included the 27, 1949, Proof July of loss was filed policy, in pre the such a clause does not amounts then to be due and further claimed clude the proving insurer from that the dis proof 1, was September loss filed after ease or illness on which insured bases the claim, rejected 1949. Defendant the but his claim prior inception arose to the no policy filed action to cancel the and filed policy the and therefore not was included legal no contest of the claim until its answer specific within its The incon coverage.8 was to this action in 1950. .filed only prevents by testable clause a contest Incontestability generally clauses the liability insurer respecting a incurred policies. are found in: life insurance In by byit the terms of It does not many jurisdictions they required 'by are part affect policy setting forth ordinarily provides statute. Such a clause coverage.9 nature and extent of the that, period expiration of a certain after provision, relating to the time time, incontestable, policy shall be of, commencement of sickness which is e., that the longer i. insurer be able will policy found in the rider to involved up to set formerly matters which would is incontestability here not the usual clause policy.4 have been a to a suit on defense ly policies. found in insurance It does not by appli False answers the insured in an preclude generally policy all defenses on policy may cation for a life insurance applicable only is but to the issue of the up be set as a by to a suit defense bene time of commencement of the sickness. ficiary policy period where the time coverage set by out in the afforded clause has specifically run.5 is An in its terms to illness incontestable clause in limited is effect period arising inception, yet short its after rider limitations and a provides dispute can be that the meaning contested within defendant will by proceedings time of commencement of sickness court to which insured, the insurer and has repre or been in 24 months. apparent beneficiary, parties. sentative or is qualified are Mere the defendant has rejection right question by coverage its the insured’s claim the com afforded pany by policy by provision. is not sufficient.6 believe the same We It is clear Appleman, 4. 1 Pekras v. Prudential Insurance Law Prac- Ins. Co. of Amer tice, ica, Ill.App. (1941) 597, 704; 291 § 311 10 N.E.2d Metropolitan Co., Mills v. Life Ins. 210 Densby Ass’n, 5. 64 v. Acacia Mut. Life 581; 439, Apter N.C. 187 S.E. v. Home App.D.C. 319, 203, 78 101 A.L.R. F.2d York, Life Ins. Co. of New 266 N.Y. 863. 846, 1281; 194 N.E. 98 A.L.R. Pa Densby Ass’n, supra, Life Metropolitan v. Acacia Mut. Co., lumbo v. Life Ins. 293 and cases cited therein. 335; Mass. 199 N.E. John Hancock Hicks, Mut. Life Ins. Co. v. 43 Ohio . Connecticut General Ins. Life Co. v. App. 242, 183 N.E. 93 McClellan, Cir., 445; Pyra 94 F.2d 6 Selkirk, Cir., mid Life Ins. 5 80 Co. v. 9. Apter v. Home Life Ins. Co. of New F.2d 553. York, supra; John Hancock Life Ins. Hicks, supra. Mar 8. John Hancock Mut. Life Ins. Co. v. Co. v. 899; kowitz, Cal.App.2d 144 P.2d years, ceding re- filed and in his original loss was

that when instatement he maintain he not been July 1949 the had received atten- a consecutive no medical or in force for ed pe past except equally years that such tion in as months, clear three such but it is expired claim was first was known state- when the Both riod is unquestionably ments were contested 19S0. legally false where ambiguous they justified trial court were finding rather was in its terms in ambiguous they contract is made intent to deceive and that an insurance to the insured materially favorable terpretation most affected the risk assumed *4 adopted.10 agree is I cannot to that the be rider, opinion, quoted of the in court’s this rider, while to us that the It seems prevented company the this proving from clause, is usual the defense. exactly what it means meaningless unless policy had namely, the says, that after it agree opinion I with statement in the the de months 24 consecutive in effect for been that rider means “that after the the com question the of time could not fendant had been effect 24 in consecutive for reality say that in To illness. question of mencement months could not the defendant had began he first when plaintiff’s illness of time commencement of illness.” As directly contra be kidney would to trouble company matter of also fact the think, This, defend provision. agrees says pro- dict this we for it in its brief that the - would be may situation not do. The to mean ant vision “would seem us to that the think, from illness different,' the question we had insurer cannot the of beginning which he for plaintiff suffered which illness been after the has in effect period preced during’ the twenty-four treated been had months.” consecutive other of the taking modification, out been also with ing agrees, insured some example, heart kidney trouble —for says than because his brief that he the other sicknesses any of listed or “the agreed trouble rider insurer has application blank. questions on policy has in the been consecutive force other illness proof of such question of 24 offering of months it will not had a have would attention date of medical commencement of But sickness.” and at of fraud agreement on the issue bearing the insured adds that also violated the “attempt not have was that not. the insurer to time would would same n questioning prove time inception that sickness its at had- about stipulation sense, prior' is in this time illness. some to the issuance of of the beginning of policy, the sort of in or think, was not existed at the of the applica- that this time we policy.” life insurance tion for the contestability found in From this last ar- he gues proof of time of commencement policies. prohibited of sickness is even for the elapsed before the 24 months Since ’ purpose proving securing fraud in answer to suit ques- in'its defendant policy, brings and this us to the heart of the sickness, commencement tioned the question. history prior medical evidence have excluded. been plaintiff should agree opinion with I provi- that the judg- instructions enter question sion in is not Reversed usual incontest- stipulated. in the amount plaintiff able clause. think I its ment incontestable prevent is to questioning the com- Judge HOOD, (dissenting). Associate of the determining mencement sickness sickness is original for insurance whether coverage within the In I of the do not he received medical think it means that appellant validity pre- or during treatment five existence itself or ridge, App.D.C. Co., 73 Life Ins. 117 New York v. F.2d 10. Stinson 233; U.S.App.D.C. Penn A.L.R. 167 F.2d Indemnity Corp. Ald sylvania Fire v. of fraud ground on canflot contested thé be policy. To of the the issuance securing give it the effect it would be to

so construe I believe clause.

of a true incontestable company the insurance

the clause leaves ground of fraud

free defend incidentally discloses the

if of fraud sickness,' I of commencement time the clause. no violation of

think there is questioning time company is not ques- is sickness; it

commencement a valid contract

tioning the existence judgment should insurance. I think ' be affirmed. *5 HAWKINS. v.

JOHNSON

No. Appeals

Municipal Court of Columbia.

District of

April 1, 1951.