Sisco v. American Family Mutual Insurance Co.

COVINGTON, Judge,

dissenting.

I respectfully dissent.

The policy language at issue is: “Any amounts payable will be reduced by any payment made or amount payable because of the bodily injury under any worker’s compensation or disability benefits law or any similar law.” Appellants challenge on two bases: (1) Sisco is receiving a “stream of payments” rather than a lump sum; (2) the policy language is “poorly worded, vague ... and is ambiguous and unclear as to exactly what is intended in those categories.” The principal opinion does not adopt these arguments but, rather, appears to find ambiguity in the character of the statutory benefits mandated under §§ 86.200 to 86.366, RSMo (1986 & Supp.1990).

There is no doubt that multiple legislative purposes are evident in the statutory scheme of benefits provided in §§ 86.200 to 86.366. As noted by the principal opinion, the court in Chapman v. Sanders, 528 S.W.2d 462, 465 (Mo.App.1975), stated that the statutory sections demonstrate a legislative intent to establish retirement security for policemen. Chapman acknowledges, however, that this is a comprehensive scheme of coverage and there are a number of different types of retirement, including that related exclusively to service connected accidental disability. Id. A statement of general legislative intent of a sequence of statutes precludes neither a finding that a particular provision within the statutes is a disability benefits law nor a finding that another provision speaks to voluntary retirement.

The principal opinion does not decide that the service connected accidental disability retirement benefits that Sisco received were retirement benefits; it simply notes that there is a sound argument for that position. Retirement is generally understood as being the “[tjermination of employment ... upon reaching retirement age, or earlier at election of employee, self-employed, or professional.” Black’s Law Dictionary 1316-17 (6th ed. 1990). Service connected accidental disability retirement, on the other hand, is not a voluntary retirement. For eligibility the member must “become totally and permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty_” § 86.263. This provision, under which Sisco receives benefits, is a disability benefits law.

The fact that the statutory scheme provides for more than one category of benefits does not render a particular provision ambiguous, nor does it transform the clear language of the policy into ambiguity. “Language is ambiguous if it is reasonably open to different constructions; and language used will be viewed in light of ‘the meaning that would ordinarily be understood by the layman who bought and paid for the policy.’ ” Robin v. Blue Cross Hosp. Serv., Inc., 637 S.W.2d 695, 698 (Mo. banc 1982). The policy language at issue here permits only one reasonable interpretation. The language clearly states that a reduction of the underinsured motorist ben*412efits will be taken for any monies paid pursuant to a disability benefit law.

Finding that § 86.263 provides a disability benefit and finding no ambiguity in the language of the policy provision, I must respectfully dissent.