*1 KIRK, Plaintiff-Appellant, v. FINANCIAL SECURITY LIFE CHRISTINE E. COMPANY, Defendant-Appellee. INSURANCE Fourth District No. 14365 Opinion filed November GREEN, J., concurring. P.
WEBBER, J., dissenting. Simhauser,
W. Springfield, appellant. J. Allen, Heyl, Royster, counsel), & Springfield (Gary Peplow, Voelker M. appellee. Mr. REARDON delivered the of the court: JUSTICE typical As is in appeals pursuant from dismissal to section 48 of the Civil (Ill. Practice Act par. 48), Rev. Stat. ch. we will in the instant uncontested, case well-pleaded allegations follow the rule that of fact be, review, shall purposes for the true. deemed to be Bulk Terminals Agency (1976), Co. v. Ill. Environmental Protection 430, 432. N.E.2d Kirk, plaintiff, beneficiary Christine E. is the anof insurance defendant, Security Company,
issued Financial Life Insurance husband, which life W. insured the of her Kirk. now-deceased John BENEFIT,” caption Under “MULTIPLE DEATH ACCIDENTAL indemnity provision contained increased or stated: while this Company,
“ACCIDENTAL DEATH BENEFIT. The effect, than the nonforfeiture policy is full force and other WILL PAY to the provisions, an Accidental Death Benefit Beneficiary proof Office upon receipt at its Home of due directly accidental death the Insured which shows occurred; (1) directiy accidental death death resulted (2) bodily an accidental injury, death occurred ninety (90) days bodily (3) injury, both the death occurred while this policy was in full force and effect. *2 Multiple The Benefit in payable Accidental Death will be addition INDEMNITY, to the Face Amount and will be: DOUBLE an INDEMNITY, Amount, equal amount to the Face or TRIPLE an equal proof Amount if required to twice the Face Amount the due also was a injury shows the accidental was sustained while he in fare-paying passenger upon public conveyance operated or Any amount passenger payable common carrier service. Double, Triple under either the Accidental Death Benefit as or Indemnity upon by any the death the Insured shall of be reduced amount paid payable or ‘Benefit for Loss Hands of Insured’s or Sight’ Feet or as a result in of the same but no event shall the amount payable hereunder for death be less than benefits the face amount.
The Accidental Death Benefit will be in one sum unless payable provided by otherwise notice from Beneficiary. written the ACCIDENTAL DEATH DEFINED. phrase ‘Accidental from, Death’ means (1) resulting directly solely injury accidental visible on surface the body the of or disclosed an autopsy, (2) or a disease from an resulting directly or infection accidental beginning ninety (60) days described and injury, (3) the date of the drowning.” accidental 26, 1974, On January while the in alleged insurance contract was to effect, full force and the insured in an was involved automobile accident injured which severely him. placed The insured was the subsequently intensive care University unit of the Hospital Jackson, Mississippi, where he surgical operations extraordinary underwent two and where measures prolong were taken to his life. at The insured remained the 28,1974, hospital until April the of of date his death. The date death was on 92nd day the following plaintiff automobile accident which the alleged to be direct proximate cause death. unsuccessfully
After demanding pay that defendant under the benefits above, indemnity plaintiff double clause filed instant action on quoted 90-day alleging restriction contained public clause Illinois. violated After defendant filed a motion 1975, to dismiss (Ill. under section 48 of the Civil Practice Act Rev. Stat. 110, par. 48), ch. complaint granting dismissed the court 12, 1976, July On complaint. leave file an amended plaintiff but, motion response to another was filed complaint amended A 1976. dismiss, the action on November orally dismissed 8, February that effect was entered written order to 90-day limitation (1) that the alleges: appeal, plaintiff On public violates the indemnity clause contained the double period Illinois; (2) definition of accidental policy’s being applied against plaintiff. incapable ambiguous, uncertain section pursuant reviewing that we are dismissal Owing to the fact concerning the Act, an issue reviewing we are not 48 of the Civil Practice Rather, scope in the insured’s death. causative factor involved limitation whether the question is limited to the public this State’s in the instant contract violates clause contained holding Illinois case Our research has disclosed no commonly included period which is has been this State. Our attention against clauses (1973),451Pa. directed, however, v. Franklin to Burne Court held Pennsylvania Supreme 301 A.2d wherein was policy and that State’s similar limitation violated as to question existed in circumstances where no unenforceable Note, Demise Death be not Proud-The insured’s cause of death. See 854; L. Rev. but (1974), DePaul Indemnity Time Limitations Double *3 Annot., (1971). 39 A.L.R. see Life Insurance briefly stated. The Franklin
The facts of can be Burne *15,000 a face amount to Bartholomew Company policy bearing issued a an additional providing in 1949. A rider Burne double *15,000 but the policy, attached to the death was accidental benefit of if death occurred only payable be rider stated that the benefit would struck an accidentally was days The insured within accident. 1957,and, although Miami, Florida, in automobile North medical sophisticated use injuries, the he suffered severe brain years. After the insured’slife for 4M techniques prolonged equipment and the direct injuries were insurer conceded the insured’s death the insurer, of the paid the face amount cause of death indemnity accidental death however, liability under double denied within that death did not ensue rider for the reason accident. of the insurer summary judgment favor ordering
In favor summary judgment be entered directing reversed and beneficiary, the court stated: the insured’s paradox gruesome trial presents “The reached result indemnity recovery for the permit indeed—it would days of an ninety instantly dies or of an accident victim who deny recovery but would such death of illness, agony victim who endures the prolonged longer, suffers greater expense by necessitates his family hopes sustaining momentarily beyond ninety day life even predicate To liability policy upon life insurance occurring date, prior on or to a specific denying policy recovery date, if death occurs after that fixed offends the basic concepts objectives and fundamental of life insurance and its Hence, public policy. day ninety limitation is [sic] unenforceable. *** decisions as to what medical treatment should be [T]he accorded an accident victim unhampered which might considerations have a tendency encourage something less than the maximum penalty medical care on financial loss if such care succeeds in extending life 90th day. should, All such factors possible, wherever be removed from the antiseptic halls of the hospital. Rejection arbitrary of the ninety day provision exactly does that.
Aside from considerations of public policy, ninety day provision possesses persuasive no In support. granting decisional appellee’s summary judgment, motion for obviously the trial court relied upon a single thirty year old case. Sidebothom Metropolitan Co., 124, 14 339 Pa. (1940). A.2d 131 case, That as well as virtually every other case which construed ninety day provision, is based on considerations which have no pragmatic applicability to the factual situation here. The judicial earlier interpretation ninety day provision was that its underlying purpose was govern situations where there existed possible some uncertainty injuries over whether sustained in an actually result in ninety day provision death. The attempted to delineate a governing injuries line cases where the may may Ninety days not cause death. arbitrary period was the advanced the carrier within which to ascertain whether death will in fact result from the accident.
The factual situation principles Sidebothom illustrative underlying a ninety day provision. There the suffered insured injuries from exposures two different to carbon monoxide. While *4 the hospital he injuries suffered further hospital from a fall from a bed. In two crucial ways distinguishable case is from First, instant one. involved Sidebothom was not the type any with decree of certainty regarded could be as fatal. In addition presented Sidebothom distinct problems, causation deceased having injuries suffered both within and without these neither of instant case suffers from
ninety day period. The the accident It was clear from the moment of infirmities. thereof, being one only question a result die as husband would being conceded problem, it any time. was there causation Nor injuries was the that the sole cause of death by the defendant 218,-, (451Pa. struck the car.” suffered the husband when 799, 801-02.) 301 A.2d opinion that the thrust of that analysis Sidebothom indicates
Our already problem a which we have problem, relates to the causation that fundamental presented appeal. been in this Because of noted not difference, in Sidebothom. distinguish we decision occasions, scouring the statutes and unsuccessfully
On
infrequent
required
to resort
reporters
binding precedent
point,
on
court
public policy
justice
order to do
between
vague
outlines of
public policy to be
litigants before it. Some courts have defined
morals, health,
public
“community
applied
sense”
to matters of
common
Surety
Casualty
v.
&
safety,
(E.g.,
and welfare.
Hammonds Aetna
controlling
1965),
796.) In the
(N.D.
Supp.
Ohio
243 F.
absence of
legislative
is sometimes
forced to entertain
legislation,
implicitly
scope
public
considerations when it
defines the
(Holmes,
(1881).)
judiciary’s
The Common Law 68
wise reticence
to announce
all-inclusive
attempting
definition
(2d Ed.)
Am. &
practice
Eng.
p.
indeed a well-settled
Enc. Law
—“In
456, it
policy
fluctuating,
is said: ‘Public
is in its
so uncertain and
nature
varying
day,
growth
with the habits
with the
and fashions of
commerce,
trade,
its
that it is difficult to determine
usages
any degree
limits with
of exactness.’ In a note to the text is reference to
Story on
quoting
public
California case
the definition of
courts,
‘It
defined
but has been left
Contracts
has never been
§546:
rule,
definition,
as fraud. This
loose and free of
in the same manner
however,
down,
safely
any
laid
that whenever
contract conflicts
time,
interest of
any
with the morals of the
and contravenes
established
limit
society,
being against public policy.’
‘public
it is void as
To
the term
policy’ within the bounds of a fixed definition would be to render evasion
(Lipscomb
respect
easy
of the law
a matter of
invention.”
530, 542,
Thus,
1046, 1048.)
91 S.W.
(1906),
Adams
Mo.
and,
in the absence
ordinarily
legislature
left for determination
action,
in a
legislative
judge
proper
it is
determination
left for
“* ” *
I
say,
his discretion can
case who
the sound exercise of
* *
184, 197,
it,
(1964), 378 U.S.
v. Ohio
know when see
Jacobellis
Stewart, J.).
(concurring
12 L. Ed. 2d
With we will with our principle instant case. We with the Burne court’s statement that the medical
197 unhampered by treatment of an accident victim should be a consideration fortuitously will if victim of whether insurance benefits be lost the risk beyond arbitrarily period. survives time Avoidance of the selected euthanasia, risk of the of the of inducements to like avoidance Liberty inducements murder which was discussed in National Life 696, 171, 100 (1957), 2d is primary Co. v. Weldon 267Ala. So. of importance to us here. reasoning
We are the Brown States persuaded not of v. United 935, Casualty (C.C.N.D. 1899), freely Cal. F. contract parties 90-day entered into the with full the limitation knowledge of light enforced since such limitation is reasonable death, experience if and directly and statistics which indicate that proximately normally caused the within the 90- follow day period. Clearly, experience are the and statistics alluded to Brown not persuasive light to us in of modem medical advances. 14.05(2)(b) Regulations
Rule of the promulgated Rules and Department currently Illinois Insurance provides increased indemnity clauses contained life insurance policies predicate cannot ensuing recoveries on death within less than 90 In accident. v. 300, Clarke Illinois Commercial Ill. (1913), App. Men's Association judgment court affirmed a pleadings on the favor of defendant ““ ” while stating 90-day limitation was reasonable “if because usually does not result the injuries received from an accident therefrom, ninety days within reasonably ascribed to other Similar, Ill. prior intervening.” (180 300, 303.) causes less App. although explicit is language Equitable contained in Shelton Assurance Life 461, 28 Ill. Society (1961), App. 469, 171 N.E.2d 787. In view of the posture case, however, instant accept must well-pleaded we allegations contained in the complaint, including plaintiff’sallegation that proximate direct and cause insured’s death was the 26, Thus, which, distinguish we Clarke and Shelton mixing discussion timeliness of with a death factor discussion of factor, the causation primarily were concerned with causation alone. We believe that a separate more rational treatment of the timeliness and causation is factors reflected in like v. Metropolitan cases Ebbert Life 306, 16 749, (1938), Insurance Co. 369Ill. (1937), App. N.E.2d 289 Ill. aff'd 7 N.E.2d (1926), and Vollrath v. Central Insurance Co. Ill. App. not do hold reasonable purported reason that most directly proximately deaths caused will occur say
We cannot policy’s that the definition accidental death ambiguous incapable It enforcement. is our finding policy’s limitation contained provision increased We, accordingly, reverse of Illinois. proceedings consistent and we remand
judgment of the circuit court opinion. with and remanded.
Reversed GREEN, concurring: Mr. PRESIDING JUSTICE trial the case concur the decision to reverse the to remand proceedings. to that court for further complaint alleged expiration that the insured lived 90-day period only extraordinary of the use of medical because
surgical preserve taken his life. I measures *6 such methods requires the decision as to whether use lives beyond of whether the insured unhampered consideration reason, agree complaint I stated stated this that the amended For period a cause of action and that enforcement would be agree conditioning
I provision do not insurance the insured payment upon occurring of double benefits the death of per 90 his is invalid se. causing WEBBER, dissenting: Mr. JUSTICE nor majority
I reached cannot with either conclusion assigned. the reasons judgment, is court is phrase majority my in the key opinion, “[A] to do vague order
required to resort to outlines holding for litigants justify it.” In an effort to justice between the before for majority stage sets the plaintiff, sympathize, with whom we all havoc in the insurance business. can, should, after legislature
Public be declared its fact-finding accomplished through power been sufficient court, court, can certain as to the any this be investigation. Neither nor many here. We cannot know how problem presented extent of which, ruling, for may practical this outstanding policies be affected many cases all We cannot how purposes, invalidates clauses. know business; course of here occur presented similar nature to one These, myriad questions of other may many, may it be few. be decision, only legislative after can resolved may arise out of writing as whether the time of this I no at investigation. have it is eliminated or whether and should be antiquated clause matter. judicial and not a legislative I it is say still viable. healthy respect upon built of law built Our entire structure but them opinion recognizes majority limitations. The deadlines so, this be litigants. If particular to suit may be altered they suggests days after years and two suit two personal file his plaintiff title May acquire one case? appealing has an he just because he is days just because 11 months years, possession adverse limitations, ad hominem. all law becomes a set of Without a nice fellow? creating either for reputation a less than brilliant acquired Courts have former, As to the legislation. judicial repealing prior legislation or for tort; as to liability of strict existing in the field still witness the confusion contributory negligence latter, effort to eliminate the ill-fated witness to settle equipped are well negligence. Courts comparative and substitute physically are parties who and definite adverse disputes specific between large at society Problem-solving before the court. of our tribunals. capacity
institutional trial court. affirm the decision of the ILLINOIS, Plaintiff-Appellee, OF THE PEOPLE OF THE STATE MENKEN, Defendant-Appellant. RICK
Fourth District No. *7 Opinion filed November