dissenting:
I cannot agree with my colleagues that the, clause in question is unambiguous. Comparing the limitation in question with other limitations contained in the policy, it is readly apparent that the draftsmen knew how to clearly state alternative provisions. For example:
“Limitations. The insurance under this benefit shall not be payable for any of the following medical care, or services: * * * 2. Those rendered (a) in a hospital owned or operated by a government, or elsewhere at the expense of a government or agency thereof, or (b) by a physician employed by a government, for treatment in such a hospital.”
When the company sought to really make “or” mean “or” and have it be disjunctive, ihey were capable of doing so.
Limitations clauses such as that being considered here are used to prevent a double recovery in the event the injured party was covered by workmens compensation or other similar legislation. They should not be read to preclude recovery in the event of an injury or sickness incurred ■ in the course of an individual’s employment if the persons in that employment would not have a cause of action for their expenses under the Workmen’s Compensation Act or similar legislation. United Benefit Life Insurance Co. v. Glisson, 105 Ga.App. 122, 123 S.E.2d 350.
In Segelstron v. Blue Shield, Inc., 233 So.2d 645, the court was called upon to construe a group insurance policy providing for certain benefits • but excluding the obligation to pay for “services for any occupational condition, ailment, or injury arising out of and in the course of employment, or services which are furnished to a subscriber under the laws of the United States of America or any state or political subdivision thereof, and the subscriber shall have no rights under this contract even though he elects to waive his rights to such benefits or services.” The court said such an exclusion was apparently intended to fill gaps in coverage without affording a windfall; decisions in this area generally afforded a single recovery, usually under the compensation laws. The court could not say, as a matter of law, that “arising out of and in the course of employment”, as that phrase was used in the clause in question, referred unambiguously to any employment whatsoevér, whether otherwise protected or not. Therefore, even though the injured party had received his injuries while working for another employer under conditions such that he would not be eligible for statutory compensation benefits, the Florida court reversed a summary judgment for the insurer.
Limitations clauses, are to be considered in relation to all other clauses of the contract and in light of its entirety. (Couch on Insurance 2d ¶ 15:48.) This notwithstanding, I do not find these references to nonoccupational bodily injuries in the scope of coverage clauses to preclude a claim under the conditions alleged by plaintiff. One complete page of this policy is devoted to the conditions under which this major medical expense benefit shall not be payable. Included among these is the clause construed by the majority of the court to preclude coverage of plaintiff’s injury. When the conditions under which there is no obligation to pay benefits are set forth' in the policy under a heading such as “Limitations”, I would construe the rest of the policy to create at least an implied promise to pay for expenses not excluded by the specific limitations provisions if within the general subject of the policy. Under the terms of this policy I believe the meaning of the entire contract is better ascertained after examining the limitations provisions.
Normally, exclusion clauses in an insurance policy only have relevance when there is coverage. The exclusion serves the purpose of taking persons or events otherwise included within the scope of coverage out of it. (Mobil Oil Corp. v. Reliance Insurance Co., 69 Misc.2d 876, 332 N.Y.S.2d 532; Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill.App.3gl 115, 294 N.E.2d 7.) However, in the policy presently being considered, I feel ambiguities exist. If any injury incurred while performing one’s occupation was to be excluded from coverage, such intent could much more clearly have been manifested by using the words “non-occupation injury” throughout the policy. Use of “bodily injury arising out of, or in the course of an individual’s employment” might, be said to not mean the same thing as “occupational bodily injury”. I find not only the limitations clause to be ambiguous but also the scope of coverage clause to be uncertain when the whole policy is considered. When ambiguities exist in an insurance policy, they should be construed in favor of the insured. Lenkutis v. New York Life Insurance Co., 374 Ill. 136, 28 N.E.2d 86.
Some courts have achieved the result I advocate by a liberal construction of the limitations clause. Thus, in Ross v. Equitable Life Assurance Society, 237 Ark. 643, 375 S.W.2d 222, the Supreme Court of Arkansas construed a limitations clause similar to the one questioned here to apply only to injuries incurred during the course of employment with the company securing the insurance for its employees. In Johnson v. Northern Assurance Co., 193 So.2d 920, the court found for an injured plaintiff claiming under an insurance policy that excluded coverage for injuries to employees arising out of the course of employment but made no reference to workmens compensation. Plaintiff, a deputy sheriff, was not covered by workmens compensation laws. The court held the intent of the exclusion was to prevent double recovery and as this was not possible under the facts, awarded plaintiff a judgment. They held plaintiff was not an “employee” but rather an officer of the State discharging his duties when injured. Although neither case has a fact situation or limitations clause identical to the one in question, they serve as illustrations of the contempt courts have shown for these clauses if used to deny any benefits to a claimant rather than merely preventing double recoveries.