358 Mass. 575 | Mass. | 1971
This is a bill in equity brought by the plaintiffs, the town of Norwell and George Cavanagh, seeking a declaration of their rights with respect to an insurance policy issued by the defendant, Hartford Accident and Indemnity Company. The defendant in its answer denied “that the . . . [plaintiffs] have not a plain and adequate remedy at law” and requested that the court make a declaratory decree that the defendant has fulfilled the terms of the insurance policy. The case was referred to a master to whose report the defendant filed objections. The court confirmed the master’s report by an interlocutory decree and entered a final decree. The defendant appeals from both decrees.
The evidence is summarized: The town of Norwell purchased an insurance contract from the defendant under which certain employees of the town, including the plaintiff Cavanagh, were insured against accidental injury. The insurance contract provided for the payment of $75 a week to such insured persons as sustained “accidental bodily injury” and are totally disabled. The term “total disability” is defined in the policy as “complete inability of an Insured Person to perform each and every duty of Ms regular occupation until Weekly Indemnity has been payable for one
A final decree was entered to the effect that the defendant is hable “in the amount of $6,675.00 which stun is to be shared equally by the . . . [plaintiffs]” and is hable for medical expenses up to the amount of $2,000.
1. The defendant by its brief makes a very short argument that the remedy at law is adequate. The case involves (a) interpretation of an insurance pohcy, and (b) determination of the town's and Cavanagh’s rights under that pohcy.
2. The defendant contends that Cavanagh was not totally disabled within the meaning of the policy which defines “total disability” as the complete inability of an insured person to perform each and every duty of his regular occupation until weekly indemnity has been payable for 104 weeks during any period of continuous disability. The defendant points to the master’s finding that Cavanagh returned to work as a police officer on night cruiser patrol from October 22 to November 2, 1965, and during that time “could perform some of the duties of a police officer.” The defendant also notes that during the months of September, October and November, 1965, Cavanagh sold Christmas decorations in person and by telephone.
This court has stated that “ 'Complete physical or mental incapacity of the insured ... is not essential to his total disability .... It is sufficient that his disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character.’ ” Zakon v. Metropolitan Life Ins. Co. 328 Mass. 486, 489-490. The master found that Cavanagh’s work selling Christmas decorations “was of a trifling and insignificant nature.” Also this work was not part of his “regular occupation.” The master also found that during Cavanagh’s attempted return to work, from October 22 to November 2, 1965, “he did not fully carry out the duties of an officer; he lost his balance,
These facts could reasonably be interpreted as confirming the total nature of the disability, rather than as negating the requisite continuity of the total disability. In short there was an attempt to resume regular employment which failed. The findings of the master, therefore, do not appear to be “mutually inconsistent, contradictory or plainly wrong.” Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487, 489. In somewhat similar fact situations, this court has upheld findings of total disability. Kaufman v. National Cas. Co. 342 Mass. 412, 417. (The insurance company requested rulings to the effect that if the plaintiff went to his office and attended to some business then he was not totally disabled within the terms of the policy. The court stated that the requests “reflect an incorrect impression of the definition of total disability.”) Zakon v. Metropolitan Life Ins. Co. 328 Mass. 486, 490. (A finding that the insured was totally and permanently disabled was upheld even though he engaged in occasional business transactions.) See Rezendes v. Prudential Ins. Co. 285 Mass. 505, 512-513; Manzi v. Provident Mut. Life Ins. Co. 335 Mass. 71, 75.
The case of Bouvier v. Craftsman Ins. Co. 300 Mass. 5, cited by the defendant, is distinguishable. This court pointed out that an intervening period of “partial disability” was claimed by the plaintiff and found to exist by the auditor. “Whatever would be the effect of a merely temporary change in the condition of the insured, the specific finding of partial disability for an intervening period of over three months precludes a finding that the total disability of the insured was continuous.” Id. at 13. We conclude that there was no error.
Decrees affirmed.
The master’s report stated the following: “There was testimony that . . . [Cavanagh] made several personal contacts and telephone calls on behalf of a decoration business owned by him and operated by his sons, that these were made for the purpose of selling Christmas decorations, that he made four trips during a portion of the period of disability on one of which to New Hampshire he stayed overnight because he could not drive back.”