*1 WEBSTER, Cir Before GIBSON WILLIAMS, District Judges, and cuit Judge*. Arkansas, * Williams, Judge, Western District District Paul X United States Honorable sitting by designation. *2 Judge. plaintiff The that the clear GIBSON, contends Circuit wording policy provisions the re- of brought Myre, this Plaintiff, Charles finding quires a entitled to that he is against diversity Connecticut action $50,000 the in full of term insurance Company for Life Insurance General force at the time he became Permanent- is due he claims $50,000, the amount ly Totally company, The Disabled. how- policy group life insurance under a him ever, points disability provi- out that the by his former defendant to issued the appears containing sion on a the Airways, De- Inc. employer Braniff following endorsement: liability un- its not contest fendant does $10,000, policy but stren- The on this the set forth der only plaintiff apply only enti- uously is shall of term that amounts asserts excluding re- premiums on the of insurance amounts of Addi- to a waiver tled maining amount. $40,000 the face tional of Insurance. judg- final rendered Court1 The District The determination of what amount $50,000 plaintiff and the ment for plaintiff upon is entitled to the rests appeals. defendant construction of this endorsement. It is pilot, be airline Plaintiff, clear plaintiff the a former that without endorsement totally permanently disabled the entire would be entitled to came $50,000 the May 7, “amount of in 1970. Under insurance force” (No. per group as company the life insurance waiver clause. The insurance by 221416-06) he was defendant that issued contends this endorsement in plaintiff’s recovery “amount insurance limits entitled to excluding Employee’s on the term amount ($10,000), Basic force on the Totally Permanently ($40,000). day Disabled.”the Additional term amount he became disagreed; The Court a Florida District 2 Appeals District Court of has disa- policy provide: provisions of the Other greed;3 disagree. and we must ac- life insurance The total amount of The District Court reached its conclu- any tually the em- time on force at by determining language sion that Inter- ployee on the Braniff is shown ambigui- of the endorsement creates an Employee Insurance national State- ty. agree With this we and note the consists term insurance ment and language might endorsement or a combination insurance plaintiff’s construed consistent with * * *. If the thereof claim. “Term insurance” was defined anytime, purchased paid-up not, has company as the sum of the basic insurance, insurance his amount of in- and additional amounts. “Additional only. of term insurance will consist poli- surance” nowhere defined policy in the Term is defined Insurance ;cy further, types there could be several as: group of additional insurance as this included, in term insurance addition to term life amount of any insurance, paid-up insurance, time employee at dis- on an force ability insurance, insurance income in- for term and medical he insured while company the Basic surance. equal the Had the insurance sum any, amounts, clearly recovery on shown wished to exclude Additional easily additional term it could Statement. Lord, pre- policy, States under waive Miles United this further The Honorable Employee Judge, Minnesota. insurance on District of miums for the that District pay Employee and will amount to the provision : 2. This Employee’s of insurance in force Company Upon receipt by the Insurance Permanently day life on he became prior Employee, proof his due Totally Disabled. birthday and while insured 60th Totally Permanently 3. Moore v. Life Insur Connecticut General has become Company, ance, (Fla.App.1973), Disabled, in lieu cert. So.2d (Fla.Sup.Ct.1974). options provided denied, 291 So.2d 204 all benefits and other

(JH negotiated exclusionary any endorse- was a contract and thus have worded its ambiguity against Basic apply “only to amounts of should not be resolved ment to it favor of the term insured. This insurance [empha- entirely term insurance.” claim Additional devoid of factual support record, in the whatever sized words its mer- inserted]. legal argument. its as a the mean to do so leaves failure *3 ambiguous. ing judgment The of of the endorsement the District Court is as used “additional insurance” affirmed. Whether

in refers to additional the endorsement of the other cov term insurance or one Judge WEBSTER, (dissent- Circuit erages group policy not of the made ing). uncertainty is within clear. an the Such respectfully I dissent. ambiguity concept ambiguity,4 of In order for District Court the and standing long rules of construc panel majority perceive the to an ambi- against tion we the insurer. must resolve guity in the insurance it was nec- Bergholm Co., v. Life Insurance Peoria essary ignore to certain fundamental 489, 230, 492, 284 52 76 S.Ct. and well established of rules (1932); Looney v. Insur 416 Allstate construction. Co., (8th 401, ance 392 F.2d 405 Cir. testing In ambiguity, the entire 1968). contract must be reviewed as a whole to permissible Another construction parties;1 ascertain the interest of the it recognize employee the would that has presumed every that condition in- was types possible two of insurance cov life accomplish purpose;2 tended to a some erage, payment paid-up. term and The attempt give meaning court will to and provides provision disability of clause effect, possible every if to word and pay company that the “the amount phrase determining in context in the the Employee’s in of insurance force on the meaning thereof;3 permissible it is not previously life” which had been defined to lift one sentence from the remainder paid-up as the sum of term and insur peculiar of the and attach a mean- ance. endorsement thus can seen be ing standing alone;4 to that sentence excluding recovery of insur appears, and “wherein some confusion or disability ance in event the of but not apparent discrepancy an or repugnancy negating recovery $50,000 the of full policy expres- exists between the various Myre had in term insurance.5 sions, attempt the court will to harmo- provisions company nize The insurance one such raises and seek a construc- argument. argues give tion further It that this which will reasonable force and Corporation insurance,” 4. In Arkansas Amusement amounts additional was Kempner, 466, (8th 1932) equally susceptible 57 F.2d 472 Cir. not more to be inter- preted provisions we stated: to mean that on that “ambiguous” page apply The term means doubtful and would to the term insurance Dictionary (which $50,000 uncertain. 1 in Bouvier’s Law instance was ambiguity: “Duplicity, insurance) 117 defines indis- such and that the “additional tinctness, uncertainty meaning an insurance” to which the exclusion related expression used in a instrument.” written had reference to insurance other than the Rog Minnesota law is in accord. Resler v. “term insurance” to which the clause stat- ers, 502, 379, 272 Minn. 139 N.W.2d 382 n. provisions ap- ed the on that would (1965) ; Employer’s Liability 1 Assurance ply. (emphasis original). Corp. Morse, 261 Minn. 111 N.W.2d (1961). 624 Appleman, Insurance Law and Prac 13 J. (Rev. 1965). See tice at 11-12 ed. § 5. This was noted the Florida court Am..Tur.2d, (1969). Moore, supra, also § 43 263 277 So.2d at 842: wording In the absence some such to supra Appleman, 1 at 10. note express respects intent those language provisions in the clause that Id. apply on that of the “will to amounts of term insurance Id. at 12-13. of term without definition pressly but is ex- effect to all of such application are the same words excluded from the conflict.” Where disability. the insur- first section on used different clauses of total ordinarily they disability un- next on contract, section total is made applicable only in the same to have been used additional insurance. derstood disability meaning light, my giving In Read in this view the total sense.6 clause, separate each of insur- treatment certificate ance, life read in accordance “basic” “additional” term as a whole and foregoing construction, with insurance is clear. disability In of total rules of event age meaning. can have but one before entitled to receive “the amount insur- Originally paid cost of a Braniff employee’s ance in force life” but “basic” amount of term insurance “excluding amounts of insur- additional employees permitted carry were ance”. The next section “additional” term *4 as to “additional insurance” the insur- ance under the their ex- at own coverage ance will from be extended pense. In Braniff over the 1971 took disability, premiums date of total entire cost but the distinction continued waived, thereon until the of the death provisions in relation to in event of total employee, at which time the amount disability Thus, insured. “term “additional insurance” in will effect be insurance” is defined in the as: payable. The amount of term insurance in integrated These and inter-related force on an time provisions admit of no other reasonable while he is insured for term insurance interpretation. In order to an am- find equal the will sum of the Basic and biguity majority (1) hypothe- must amounts, any, Additional shown on insurance”, cate that “additional al- added) (Emphasis the Statement. though used in the context life The first section relative “Life Insur- type insurance could mean some other Employer Disability for ance —Total (2) ignore totally benefit and sec- legend: preceded by Benefits” is tion expressly deals with treat- The Provisions set forth on this This, ment of “additional insurance”.7 apply term insur- amounts of my view, impermissible distorts an ance additional amounts of logical unambiguously manner a added) (Emphasis insurance. plan stated of life insurance with total section, The next “Life Insur- labeled disability benefits. If “additional Employer for ance of Insur- —Extension something ance” meant other than term During Disability”, preced- ance Total and all of the term insur- legend: byed paid towas out at time total provisions forth set plaintiff disability, contends, then apply only of addition- following providing next section for ex- (Emphasis added) al insurance. coverage premium tended and waiver of thus two kinds as to “additional insurance” in case of disability meaning of term life and addi- insurance —basic total would have no in the application tional. “Additional” is included or at all.8 While cases 13; majority opinion, Id. at v. see Aetna Ins. Sacramen Co. As noted a Florida (9th Co., 55 to-Stockton S.S. 273 F. Cir. intermediate court found the of this 1921) ; ambiguous. F World & v. Carolina M Ins. Co. to be v. Moore Connecti- (8th Distributing Co., Mills 826 Company, 169 F.2d cut Life General 277 1948). (Fla.App.1973). Cir. So.2d 839 That like- court totally ignored wise con- Casualty Willingham Co., Ins. & Life dealing with tract the additional term insur- (5th 1954). 216 F.2d 226 Cir. payout ance excluded from the clause phrase disability. “The sense in which a word event of total dealt These sections normally by used is its determined context.” with term insurance and term life insur- Slay Warehousing Co., Paid-up Reliance Ins. Inc. v. ance alone. life insurance was cov- 1973). Co., (8th separate 471 F.2d provisions, 1368 Cir. ered under em-

613 meaning most the construction doubtful adopted, will be favorable to the insured * * * canon of construction “[t]his avoiding hard no furnishes warrant by

consequences importing into a con- ambiguity which otherwise

tract an guise of exist, or, under the not would forcing plain construction, by from meanings.” and unnatural words unusual Bergholm Co., 284 Life Ins. Peoria 230, 231, 76 Terry v. (1932). said in As we

416 Co., F.2d York Life Ins. New 1939): (8th Cir. might though think that

Even we

meaning challenged used words better the insurer could have been accurately expressed,

or more justification for no

would constitute ap- import disregarding plain language. v. Un-

propriate Williams Co., supra, 291 Ins. Life

ion Central *5 170, page 180, 92 A.L.R. judgment of the

I would reverse enter instructions District Court with original

judgment in with its accordance July judgment entered order

1973.9 CAROLINA,

STATE OF NORTH Appellant, SMITH, Appellee.

John Edward

No. 73-1277. Appeals,

United States Court Fourth Circuit. League, Atty. N. Asst. Gen. Richard Argued April Atty. Gen., (Robert Morgan, of N. C. July 25, Decided brief); appellant. Professor, Reppy, Jr., Duke A. William C., School, Durham,

University Law N. appellee. counsel), (Court-appointed ployee eligible purchase paid-up Judge originally was Lord held the contract unambiguous “insured fol- be was for Additional reversed himself but again clearly supra, saying indicating decision, lowing “I the Florida Insurance” — “Additional something Insurance” was other am uncertain.” than insurance.