Duke v. Mutual Life Ins. Co. of New York

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210 S.E.2d 187 (1974)

286 N.C. 244

Raymond L. DUKE v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK (a New York Corporation).

No. 101.

Supreme Court of North Carolina.

December 11, 1974.

*188 Dixon & Hunt by Daniel R. Dixon, Blanchard, Tucker, Denson & Cline by Charles F. Blanchard, Raleigh, for plaintiff appellee.

Smith, Anderson, Blount & Mitchell by Michael E. Weddington, Raleigh, for defendant appellant.

HIGGINS, Justice.

The parties agreed that two questions of law are involved in this appeal. The first question (involving exceptions and assignments of error) is procedural and in view of our decision on the second question, becomes immaterial and need not be discussed. The second issue is determinative of the controversy: Did plaintiff's disability require him to be under the regular care and attendance of a legally qualified physician during the period from April 12, 1970, to September 12, 1972? The jury answered "No." The finding is conclusive and establishes the fact that the plaintiff was not under the care of a qualified physician during the critical period. On the basis of the jury's finding, Judge Hobgood entered judgment dismissing the action.

The Court of Appeals reversed the judgment of the superior court on this ground: A clause in an insurance policy requiring regular medical treatment is inapplicable when such treatment would not improve the insured's condition. The Court of Appeals cites considerable authority and advances somewhat appealing argument why medical care and attendance should not be required if the treatment does not improve insured's condition. This argument meets itself coming back, in view of the plain words of the contract. The insured's disability is not compensable unless "such disability *189 requires the Insured to be under the regular care and attendance of a legally qualified physician other than himself." The lack of need, whether based on recovery, or on a static condition rendering care and attention of no efficacy, places the insured beyond the field of coverage.

Plaintiff's counsel argues that this Court should join the Court of Appeals and a number of other courts in striking from the policy the provision which requires the insured to be under the regular care and attendance of a legally qualified physician.

Appellate courts generally, including this Court, hold that insurance policies, when construction is required, should be construed most strongly against the insurance company. Lawyers write policies for their companies. They are skilled in insurance law. Consequently, it is proper that in cases of ambiguity, contradiction, or uncertainty of the language used, the terms should be construed most strongly against the insurer. If a provision in the policy is reasonably susceptible of different interpretation, that which is most favorable to the insured should be accepted. Insurance Co. v. Insurance Co., 269 N.C. 358, 152 S.E.2d 513; Electric Co. v. Insurance Co., 229 N.C. 518, 50 S.E.2d 295.

After all, an insurance policy is a contract between two partiesthe insurer and the insured. The intention of the parties is the controlling guide to its interpretation. This intention must be found in the language used by the parties to the contract. Gaulden v. Insurance Co., 246 N.C. 378, 98 S.E.2d 355. The rule for interpretation applies where the language of the policy is ambiguous or susceptible of more than one interpretation. "However, it is generally held, certainly by this Court, that where the language of an insurance policy is plain, unambiguous, and susceptible of only one reasonable construction, the courts will enforce the contract according to its terms." Walsh v. Insurance Co., 265 N.C. 634, 144 S.E.2d 817. 84 A.L.R.2d 375; Hardin v. Insurance Co., 261 N.C. 67, 134 S.E.2d 142; Parker v. Insurance Co., 259 N.C. 115, 130 S.E.2d 36; Suits v. Insurance Co., 249 N.C. 383, 106 S.E.2d 579.

The Court of Appeals reversed the judgment of the superior court in this case upon the ground that the trial court should have instructed the jury that plaintiff was not required to be under the regular care and attendance of a physician unless regular medical care could have brought about an improvement in his condition. Such instruction would change the provision of the contract which is stated in plain, simple, and unambiguous language. The coverage for twenty-four months had expired and the defendant had paid without question.

Thereafter, the extended coverage provision became applicable only if the disability required the insured to be under the regular care and attendance of a legally qualified physician. Obviously, a doctor's regular care and attendance would not be required if that care and attendance were of no avail. But when need for care and attendance ceased, the coverage ceased, according to the plain language of the policy. The jury so found.

The contract of the parties limited extended coverage to a condition which required the care and attendance of a qualified physician. Both parties joined in making the condition a part of the contract. One alone cannot remove or change it. As this Court said in Walsh v. Insurance Co., supra: "The parties having thus agreed, so shall they be bound."

For the reasons herein discussed, the decision of the Court of Appeals is


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