Stanley v. Safeco Insurance Co. of America

Durham, J.

(dissenting) — In Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432, 545 P.2d 1193 (1976), this court held an insurance company liable under a contract providing coverage for "loss by severance of both hands at or above the wrist" when a substantial part of the insured's hands (two fingers and a significant portion of the thumb) had been severed! Though the severance had not occurred "at or above the wrist", there was "a loss of the use or function of the hands at the wrist for all substantial or practical purposes", and thus "a substantial severance of the hands." Morgan, at 437.

Whatever the merits of this construction, it undeniably requires that when coverage is provided for "loss by severance" of a body member, "the loss must occur as the result of a substantial severance" of the member in order for the insured to be entitled to benefits. Morgan, at 437. Neer v. Fireman's Fund Am. Life Ins. Co., 103 Wn.2d 316, 692 P.2d 830 (1985) did not change this requirement of "substantial severance." In Neer, the court permitted an insured who had been paralyzed when his spinal cord was severed to recover under a clause in a "Loss of Life Accident Indemnity" policy providing coverage for a loss of both feet by "complete severance through or above the . . . ankle joint." Neer, at 317-18. The court acknowledged the existence of cases from several jurisdictions denying coverage in similar circumstances. In these cases, policy language substantively identical to that at issue here and in Neer was held not to provide coverage when the insured suffered a spinal injury causing the loss of use of a foot, but the foot had not in any way been severed. The Neer court distinguished these cases as involving "Accidental Death and Dismemberment" policies, in contrast with the "Loss of Life Accident Indemnity" *744policy at issue in Neer. Because the policy at issue in Neer was not a dismemberment policy, the court held it did not require severance of the feet for coverage to apply. Neer, at 318-19.

The majority in this case attempts to use Neer to erase the word "severance" from the insurance policy at issue here. The majority's reasoning actually is inconsistent with Neer,1 however. It also is inconsistent with established principles of insurance contract interpretation and, ultimately, with its own logic. Because the construction the majority gives the policy at issue in this case is unsupportable in law or logic, I dissent.

I

Richard Stanley was struck from behind by an automobile while jogging in 1984. As a result of the accident, he is paralyzed from the chest down. It is not certain whether his spinal cord was actually severed, but his condition suggests a "functional severance".

Mr. Stanley was insured by Safeco under a group insurance policy issued to Mr. Stanley's employer. The provisions pursuant to which he seeks coverage in this action are contained in a section of the group insurance policy entitled "Accidental Death and Dismemberment Insurance". This section provides:

Safeco will pay if an employee suffers any of the following losses due to injury: . . . [o]ne hand, one foot, or sight of one eye . . .
Conditions
2. Safeco will only pay for loss of a hand or a foot if the loss was by actual severance at or above the wrist joint or the ankle joint.

As the court observed in Neer, dismemberment policies generally have been held to require severance of the body *745member itself for coverage to apply. Neer, at 318-19. The majority in this case rejects the idea that Safeco's policy is a dismemberment policy, however, and refuses to "modify the language of the body of the policy by taking from the caption the word 'dismemberment'". Majority opinion, at 742.

The majority's decision to ignore the caption in the Safeco policy is directly inconsistent with established principles of insurance contract construction. "In construing the language of an insurance contract, the entire contract is to be construed together for the purpose of giving force and effect to each clause." Morgan, at 434. We look at both the text and the captions in a policy to determine the policy's coverage. See Greer v. Northwestern Nat'l Ins. Co., 109 Wn.2d 191, 198-99, 743 P.2d 1244 (1987).

The language of Safeco's policy provisions thus must be considered in light of the heading under which those provisions appear, "Accidental Death and Dismemberment Insurance". This heading is part of the contract. The average person purchasing insurance, to whose understanding of the contract we must conform our interpretation, Morgan, at 434; Greer, at 198, would not ignore the heading, but would consider it descriptive of the coverage provided; the heading informs the insured of the intent of the provisions it covers, just as the caption title in this case informs readers of the majority's opinion of the identity of the party the majority refers to only as "plaintiff". As the caption in Mr. Stanley's policy makes clear, therefore, the provisions at issue here provide coverage only for "dismemberment".

Indeed, the policy at issue in this case is no less a dismemberment policy than a policy described as such in Neer. In Sitzman v. John Hancock Mut. Life Ins. Co., 268 Or. 625, 522 P.2d 872 (1974), the court held that a group insurance policy providing coverage, in a section entitled "Accidental Death and Dismemberment Indemnity", for loss of both feet "by actual severance through or above the . . . ankle joint", did not cover the insured who was paralyzed as the result of severance of his spinal cord. Sitzman, *746at 627. The only evidence in the opinion that the policy was a dismemberment policy was the caption quoted above. Yet this court in Neer described the policy at issue in Sitzman as an "Accidental Death or Dismemberment policy". Neer, at 318. It is inexplicable why to the court in Neer the policy in Sitzman was a dismemberment policy, but to the majority in this case the policy at issue here is not.2

Safeco's policy is for dismemberment, and requires "actual severance". If it only required "severance", most courts would deny coverage when, as in this case, the body member has not been severed. See Reid v. Life Ins. Co. of North Am., Inc., 718 F.2d 677, 680-81 (4th Cir. 1983) (citing cases). The result would be the same, and more surely so, if the policy required "actual severance" but was not clearly a "dismemberment" policy. Reid, at 681-82 (so holding and citing cases); Francis v. INA Life Ins. Co., 809 F.2d 183, 185-87 (2d Cir. 1987) (same). But here, where the policy clearly is intended as dismemberment insurance, and contains the more restrictive "actual severance" language, the majority holds that there is coverage even though no severance at all has occurred. Citing no case in accord with its holding, the majority apparently puts this court in conflict with every other court that has addressed this question. See Annot., Accident Insurance: What is "Loss" of Body Member, 51 A.L.R.4th 156, 180-203 (1987).

II

The majority must stretch and strain the language of Safeco's policy to reach its novel construction. The majority's opinion pretends a careful exegesis of the policy language.

The policy language establishes three conditions or events which must occur for there to be a benefit pay*747able. First is what must happen, i.e., actual severance; second, where it must occur, i.e., actual severance at or above the ankle joint; third, the result, i.e., loss of a foot.

Majority opinion, at 740. The majority has difficulty adhering to its own analytic scheme, however. Struggling to portray Safeco's policy as providing something different from dismemberment insurance, the majority suddenly departs from its earlier explanation of the policy's coverage. Whereas the "what" first was "actual severance", now it becomes "loss of foot", majority opinion at 742, and the severance language is simply ignored.

Ill

Mr. Stanley's injury was tragic, and his loss a terrible one. But nothing this court can do — consistent with law and logic — can change the fact that the provisions of Safeco's policy at issue here do not cover Mr. Stanley's loss. This suit should be dismissed.

Dolliver and Callow, JJ., concur with Durham, J.

I do not intend to imply by anything said herein that I approve of the holding in Neer. My reliance on this precedent merely points out the majority's departure from it.

The Neer court also described as dismemberment insurance a policy at issue in Reid v. Life Ins. Co. of North Am., Inc., 718 F.2d 677 (4th Cir. 1983), notwithstanding that the opinion in Reid describes the policy as one for "accident insurance" and does not quote the word "dismemberment" from the headings or text of the policy.