This is an action by an insured for dismemberment benefits under a group insurance policy. Judgment was rendered for defendant after the court sustained a demurrer to plaintiff’s complaint on the ground it failed to state a cause of action. The plaintiff appeals.
Plaintiff, an insured and minor dependent of Deane D. Sitzman, was injured in a vehicular collision. He submitted a claim to defendant which was denied. Plaintiff commenced this action under the dismemberment clause of the policy alleging:
*
“IV.
“Under the terms of said policy Defendant insured dependents of Deane D. Sitzman аgainst the accidental loss of both feet in the amount of $50,000, if the loss of both feet was caused by actual severance through or above the ankle joint.
((# # # #
“VII.
“As a result of said accidеnt, Plaintiff Robert Sitzman’s spinal cord was severed causing both legs to be paralyzed.
“VIII.
“As a result of the severance of his spinal cord, Plaintiff has permanently lost the use of both of his feet.
<{* # # * * >5 ①
*627 Dеfendant issued a group insurance policy for accidental death and dismemberment and total disability to the Oregon Bankers Association, under which plaintiff’s father was insured, and in which the plаintiff was named as a dependent insured. Plaintiff is expressly excluded from total disability coverage and is eligible for accidental death and dismemberment indemnity only. The material provisions оf the policy provide:
“Accidental Death and Dismemberment Indemnity. If the Insured Person, as a result of an injury_ (as defined herein) suffers any of the losses described below, within 90 days after the date of the injury, the Company shall pay in one sum the amount of insurance specified for such loss in the following Schedule of Indemnities * * *.
“Full Amount of Insurance [$50,000] for Loss of
«ft ft ft ft ft
“Both Feet
«ft ft ft ft ft
“Loss of hands or feet shall mean loss by actual severance through or above the wrist or ankle joint * * *. [Emphasis added.] «ft ft ft ft ft
“Total Disability Benefit
“(This Benefit shall not apply to any person who is insured under the Policy аs a dependent.)” (Original emphasis.)
The plaintiff contends:
"EVEN IF NOT VIEWED AS AMBIGUOUS, TEE POLICY LANGUAGE ‘SEVERANCE THROUGH OR ABOVE THE ANKLE JOINT IS SUFFICIENTLY BROAD TO EMBRACE FUNCTIONAL SEVERANCE.” (Original emphasis.)
*628
Plaintiff argues that although there was no aetual severance of the feet above the ankle joint, there is in fact a “functional severance.” In support оf this argument plaintiff relies principally on
Reliance Ins. Co. v. Kinman, 252
Ark 1168,
In Kinman, the plaintiff “suffered the loss of a foot in an accident. * * * The appellant [insurance company] refused to pay the claim on the bаsis that appellee’s foot was not actually severed within the time limitation of 180 days.” The principal issue was if the actual severance occurred within the 180-day limitation. At the time of thе accident plaintiff’s “leg muscles, tendons, deep, or major, veins were torn apart and the leg was connected to the body only by the sciatic nerve, and artery, some muscle tissuе and skin.” At the trial the doctor testified “that ‘medically, in retrospect, it [leg] was lost from the time of the initial injury. * * The doctors tried to reassemble the parts of the leg but were unsuccessful and subsequently it was amputated. The Arkansas court held the policy language “actual severance” to be ambiguous, stating:
“* * * It may, as demonstrated above, be interpreted to mean ‘physicаl severance’ in one instance and ‘functional severance’ in another whichever appears to be most beneficial to appellant. * * •”252 Ark at 1176 .
We believe it was not neсessary for the'Arkansas court to discuss or hold that the language of the policy was ambiguous. In that case it was merely a question *629 of when the leg was severed and the facts of that cаse indicate that it was severed at the time of the accident.
In Huff, the plaintiff, while operating a power saw, cut his arm “leaving only a little portion of skin remaining on the under part of thе arm to connect the two portions of the arm.” The doctors tried to save the dangling portion of the arm hut were unsuccessful, and the forearm and hand were amputated more thаn 90 days from the date of the accident, the time named in the insurance policy. Again, the Alabama Supreme Court held that the arm was severed on the date of the initial injury, or at least it wаs a question for the jury to determine.
In Crawford, the court held that the trial court erred in sustaining defendant’s demurrer to the complaint on the ground that the complaint did not state facts sufficient to cоnstitute a cause of action. The facts are that the plaintiff suffered a crushing and mangling of his left hand that required emergency ■surgery. The surgery performed included a major portion of the left hand and “[t]he portion of the left hand remaining is useless and impairs his ability to utilize a prosthetic device.” The appellate court stated:
“We reverse the judgment of the trial court and in so doing hold that as plaintiff’s injury resulted in amputation of all usable portions of his left hand commencing at the wrist joint he suffered a total loss of limb by physical separation of the limb at thе wrist joint.” 275 Cal App 2d at 527.
It is plain from the above that each of these cases are distinguishable on the' facts from the case at bar. In those cases there was good reason tо believe that for all practical purposes there was a dis *630 memberment. This is not pleaded or contended in the case at bar. In fact, the complaint states that the plаintiff’s spinal cord was severed and he lost the nse of both feet.
The plaintiff also relies on
Moore v. Aetna Life Ins. Co.,
“* * * They may be divided into three classes: (a) Where no part of the hand or foot has been severed, but where it has become useless by reason of an injury to some other part of the body, as in the case of the man who was paralyzed by being shot in the back; (b) where some portion of the injured member has been severed, but some useful portion still remains, * * [citations omitted]; (c) where there was an injury requiring the amputation of a comparatively small part of the injured member, the larger portion remaining but рractically useless. * * *”75 Or at 52 .
The court held, in Moore, that the facts did not fit any of these three exceptions as a defense for the defendant and found that the injury constituted a dismemberment.
We conclude from the court’s reasoning in Moore that it is inapplicable to the case at bar, other than to lend support to the defendant’s position.
*631
The plaintiff also contends that “the exclusionary language in the policy is ambiguous,” and that this ambiguity should be rеsolved in favor of the plaintiff. We assume, from the brief, that reference is not made to the exclusionary language, but rather to the use of the words “actual severance.” The only exclusionary language affecting plaintiff is that portion of the policy which states, “This Benefit shall not apply to any person who is insured under the Policy as a dependent,” in reference to “total disability benefit.” Plaintiff argues “that the loss of use of his legs is just as real from a paralysis with the severance of the spinal cord as it would be from the amputation of the feet thеmselves,” and that the plaintiff never intended or understood that “loss by severance through or above the anHe joint” meant that coverage would be provided only if the feet themselvеs had been cut off above the anide. In this respect, plaintiff relies upon
Chalmers v. Oregon Auto Ins. Co.,
“In addition, we must also bear in mind that while the primary rule of contract interpretation, including insurance contracts, is to ascertain the intent of the parties, if possible, it is nevertheless established in Oregon that when a policy of insurance is ambiguous it ‘should be construed * * * in the sense in which the insured had reason to suppose it was understood.’ [Citations omitted]
“Viewed in the light of these considerations, we hold that the terms ‘temporary residence’ and ‘actual use’ are ambiguous in a legal sеnse in that they are general terms which could have been intended to have been used in a more or less narrow *632 or broad, sense, depending upon the intention of the parties. Cf. Gowans v. N.W. Pac. Indemnity Co.,260 Or 618 ,489 P2d 947 (1971).”262 Or at 509 .
We аgree that insurance policies, when they contain- ambiguous language, must be construed in the sense in which the insured had reason to suppose it was understood, but we can find no justifiable reаson in the case at bar to support a supposition by the insured that actual severance through or above the anide joint also means severance of the spinal cord with resultant loss of use of the insured’s feet without any physical injury other than loss of motor function. Most courts have held that such language as-employed in the insurance policy is unambiguous and rеquires severance of the member at the place designated in the policy. For discussion, see 87 ALR2d at 485.
In his complaint plaintiff seeks to obtain disability benefits for the loss of “the use of both of his feet,” but we cannot so construe the plain and unambiguous language of the insurance contract involved herein, and we cannot rewrite the insurance policy or construe the same beyond its clear language.
Affirmed.
Notes
Plaintiff did not allege that plaintiff’s legs or feet were physically injured, cut, or severed in any manner.