(dissenting).
I must respectfully dissent. I do not think the words “payable under Workmen’s Compensation ... or disability benefits law . . . ” are ambiguous. I believe we should follow the reasoning of Land v. Continental Casualty Co., 284 Minn. 453, 170 N.W.2d 568 (1969), which the majority admits stands “foursquare” for the appellee (insurer).
In Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958), this Court said:
“Our Workmen’s Compensation Laws were adopted from the Minnesota Laws of Workmen’s Compensation, M.S.A. § 176.01 et seq., and Minnesota construction of that law is of persuasive value to this court. Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288.
In Phillips v. Prudential Ins. Co. of America, 285 Ala. 472, 233 So.2d 480 (1970) , this Court, in construing a clause in a policy which did not provide benefits with respect to “sickness or injury covered by any workmen’s compensation act” stated that “ . . . it is the type of disease or injury that calls into play the exclusion rather than the amount of benefits that may be received . . . ” The injury to Antram was covered under Workmen’s Compensation laws and benefits were paid because the injury arose out of Antram’s employment. I believe this Court’s case of Phillips v. Prudential Ins. Co. of America, supra, gives guidance in interpreting provisions of the insurance contract here. I also believe we should follow the Land case, since it is on all fours and construes a provision of Minnesota’s Workmen’s *722Compensation Law which is similar to Section 312, Title 26. The Minnesota court held that benefits recovered from a third party tortfeasor by a covered employee were “payable” under a Workmen’s Compensation Law.
Furthermore, I cannot agree that Burkett v. Continental Cas. Co., 271 Cal.App. 2d 360, 76 Cal.Rptr. 476 (1969), stands “foursquare” for the insured. There, Burkett did not make claim for Workmen’s Compensation benefits. Burkett’s insurer put on a witness who testified Burkett would have been entitled to such benefits had he applied for them. Here, the insured had been paid or had already established eligibility to Workmen’s Compensation benefits. The California court said:
“The contract of insurance, which is a group policy, provides that the benefit payable shall be ‘LESS ANY AMOUNT PAID OR PAYABLE UNDER ANY WORKMEN’S COMPENSATION, OCCUPATIONAL DISEASE ACT OR LAW.’
“The insurance company presented as a witness Mr. John O’Connell, a lawyer who had been a member of the Workmen’s Compensation Appeals Board and its predecessor, Industrial Accident Commission, from July 1963 to February 1967. (Trial was in August 1967.) He testified that if Mr. Burkett had applied for workmen’s compensation, which he did not do, he would have been eligible for the amounts which were later deducted from the amount awarded, as described above. He conceded that he could not testify that Mr. Burkett actually would have been paid these amounts, saying, T don’t think anybody can say that.’
“There is a good deal of discussion in the briefs about the admissibility of testimony of an expert as to what result there might have been had application been made for workmen’s compensation; and also about Mr. O’Connell’s testimony in particular, especially because he conceded that he was not qualified to answer whether the Zollinger-Ellison Syndrome (which a physician testified at the trial was the plaintiff’s ailment) was a natural or reasonably probable result of the employment. Mr. O’Connell had tried to place himself in the position of a referee and had concluded that the opinion of the testifying physician would show that the disability was either caused or aggravated by Mr. Burkett’s activities as an employee of the bank.
“[la] We think it is unnecessary for us to go into the subject of the general competency of an expert to testify as to the likely results of a proceeding which was never commenced, or into the matter of appellant’s assertions of deficiencies of Mr. O’Connell’s testimony. The policy does not contain any statement of an obligation on the part of the insured to apply for workmen’s compensation. The word ‘payable’ does not necessarily mean that which might (or might not) have been obtained by the commencement of proceedings under the Workmen’s Compensation Act. It is subject to the meaning that what has been awarded by the Workmen’s Compensation Appeals Board but has not yet been collected is ‘payable.’ [2] The terms of an insurance policy are to be construed strictly against the insurer. (Southwestern Funding Corp. v. Motors Insurance Corp., 59 Cal.2d 91, 94, 28 Cal.Rptr. 161, 378 P.2d 361; Continental Casualty Co. v. Zurich Insurance Co., 57 Cal.2d 27, 32, 17 Cal.Rptr. 12, 366 P.2d 455.) [lb] We find nothing which would require the insured to take upon himself the burden of proving his case before the Workmen’s Compensation Appeals Board and its referees. Especially do we find no reason for requiring such action when there is no evidence that the company made demand either by general announcement to the employees covered by the policy or by particular demand upon plaintiff.
“The argument of the insurance company does not take into consideration the determined resistance which might have been made by a workmen’s compensation carrier against any claim made by Mr. Burkett. *723Moreover, it overlooks the fact that the very condition which caused his disability was one which, by defendant’s own arguments, was caused by over exertion in his business activities and which might have been aggravated by a contest to obtain workmen’s compensation. It is true that this difficulty must be faced by many applicants for workmen’s compensation who must rely on that form of relief. [3] But one who purchases a disability insurance policy need not take proceedings to relieve his insurer by seeking other remedies, unless the policy clearly obliges him to do so.”
It seems to me that if the California Court had been faced with the facts of this case, it would have held as I suggest. Here, Antram had been awarded benefits. In the California case, the insured had not. There was nothing contingent or doubtful about Antram’s award. In the California case, the insured had not even applied for benefits under Workmen’s Compensation.
Based on what I have said, I would affirm the trial court. Consequently, I respectfully dissent.