Atkins v. Great American Insurance Company

189 S.E.2d 501 (1972)

Sue B. ATKINS v. The GREAT AMERICAN INSURANCE COMPANY.

No. 7210DC292.

Court of Appeals of North Carolina.

June 28, 1972.

*503 Sanford, Cannon, Adams & McCullough by Richard G. Singer, Raleigh, for plaintiff appellant.

Teague, Johnson, Patterson, Dilthey & Clay by Grady S. Patterson, Jr., Raleigh, for defendant appellee.

MALLARD, Chief Judge.

Plaintiff contends that under the agreed statement of facts the trial judge committed error in failing to conclude as a matter of law that the plaintiff had obligated herself within one year after the accident to pay for the dental services to be performed in the future at a time when it was appropriate from a dental standpoint, and that this entitled her to recover of the defendant the sum of $915.61 under the terms of its automobile insurance policy issued to Rudolph Hart Hodge. The pertinent provisions of the policy read: "To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices . . . ."

The question presented involves the proper definition of the word "incurred."

*504 "Where the contract of insurance provides for the payment of medical expenses `incurred' within a specified time period, it is by definition not necessary that payment be made in the specified time, but there is coverage when the liability to pay becomes fixed by contract within the specified time period. So it has been held under the provision of an automobile policy for payment of medical expenses of a passenger `incurred within one year' from the date of an accident, that if the doctor was engaged and his services were contracted for within the year, and if the plaintiff was bound to pay or did pay a certain sum within the year, and the doctor afterward complied with the contract and performed the services after one year, then the plaintiff would have incurred such expenses within the year, and the insurer would be liable therefor, but if payment was made after one year, such expenses would not have been incurred within the year." Couch on Insurance 2d § 48:72.

In the case of Graham v. Reserve Life Insurance Co., 274 N.C. 115, 161 S.E.2d 485 (1968), it is said:

"Webster's Third New International Dictionary-Unabridged (1961) defines incur: `to meet or fall in with (as an inconvenience); become liable or subject to: bring down upon oneself (incurred large debts to educate his children) (fully deserving the penalty he incurred).' This definition was quoted with approval by this Court in Czarnecki v. American Indemnity Co., 259 N.C. 718, 720, 131 S.E.2d 347, 349. See also Reliance Mutual Life Insurance Co. of Ill. v. Booher, 166 So. 2d 222 (Fla.Dist.App.); 42 C.J.S. p. 552 (1944). In considering the meaning of incurred as used identically in a policy issued by this same defendant, the Supreme Court of Mississippi in Reserve Life Insurance Co. v. Coke, 254 Miss. 936, 943, 183 So. 2d 490, 493, adopted the following definition from Irby v. Government Employees Insurance Co., 175 So. 2d 9 (La.App.): `"As used in the policy in suit the word `incurred' emphasizes the idea of liability and the definition of `incur' is: `To have liabilities (or a liability) thrust upon one by act or operation of law'; a thing for which there exists no obligation to pay, either express or implied, cannot in law constitute an `incurred expense'; a debt or expense has been incurred only when liability attaches. Drearr v. Connecticut General Life Insurance Co., La.App., 119 So. 2d 149; United States v. St. Paul Mercury Indemnity Co., 8 Cir., 238 F.2d 594; see also Stuyvesant Insurance Co. of New York v. Nardelli, 5 Cir., 286 F.2d 600, 603," 175 So. 2d at 10.' Accord, Maryland Casualty Co. v. Thomas, 289 S.W.2d 652 (Tex.Civ.App.); Hermitage Health and Life Insurance Co. v. Cagle, 420 S.W.2d 591 (Tenn.App.)"

We hold that expenses are incurred within the medical payment coverage hereinabove quoted when one has paid, or become legally obligated to pay such expenses within one year from the date of the accident. Graham v. Reserve Life Insurance Co., supra.

In the case of Maryland Casualty Co. v. Thomas, Tex.Civ.App., 289 S.W.2d 652, cited by plaintiff, the appellee had already paid the dentist for the dental work to be thereafter performed on a child. In the case before us the plaintiff (presumably an adult) had not paid within one year from the accident for the dental work, which the dentist had "advised" would be necessary at some time "appropriate from a dental standpoint," nor had she become obligated to pay therefor. It is noted that the accident occurred on 30 August 1969 and when the agreed statement of facts was filed on 8 December 1971, the treatment so "advised" by the dentist had not been performed or paid for. Although the plaintiff and the dentist had "agreed that *505 such work would be performed in the future," the plaintiff did not specifically agree that the dentist in question would perform the work or that she would pay him his proposed fee of $946.00. We are of the opinion and so hold that upon the agreed statement of facts neither the plaintiff nor her estate, in the event of her death, was legally obligated to pay the dentist, and therefore, that Judge Preston correctly held that the plaintiff was not entitled to recover.

Affirmed.

CAMPBELL and BRITT, JJ., concur.