Crowell v. Federal Life & Casualty Co.

Fitzgerald, J.

The issue on appeal is whether plaintiff suffers from a "confining sickness,” as defined by a policy of health and accident insurance issued to him by defendant Federal Life and Casualty Company. The policy was issued to plaintiff in September of 1966 for an annual premium of $201.50. The controversy concerns § 3D of the policy which provides the following coverage:

'Policy section 3
"D. Total Disability — Sickness
(1) Non-confining or confining sickness
Monthly indemnity $200
24 Months for any one Sickness
(2) Confining Sickness and continued Disability after (Dl)
Monthly Indemnity $200
Lifetime for any one Sickness
" 'Confining Sickness’, means that as a result of Sickness the Insured is confined to his residential premises or yard, except for necessary visits to a hospital or doctor’s office for treatment.
" 'Total Disability’, means that as a result of Injury or Sickness, the Insured is under the regular care and attendance of a duly licensed doctor of medicine or *618osteopathy, other than himself, is completely unable to perform each and every duty pertaining to his occupation and is not gainfully employed in any other occupation, except that if a monthly indemnity has been paid for 12 months during any period of continuous total disability, then for the balance of the period of such continuous total disability, the term total disability in addition shall mean the complete inability of the Insured to engage in any gainful occupation for which he is reasonably qualified by education, training or experience.”

In March of 1969, at the age of 47, plaintiff suffered a severe myocardial infarction. As a result of that attack and of the subsequently diagnosed chronic heart disease, plaintiff became disabled from engaging in any gainful employment. Prior to his attack, he had been employed by the Continental Motors Corporation and had, in addition, operated a used-car lot in Muskegon.

He has been diagnosed as suffering from chronic coronary ischemia, which is an insufficiency of the blood supply nourishing the heart. For this reason, he is incapable of more than mild physical activity. He has been told by his treating physician, Dr. Claude VanAndel, D. O., to avoid physical and mental strain, lifting, exposure to inclement weather, and crowds. He was told that mild exercise short of that which produces chest pain or shortness of breath is of therapeutic value.

The evidence indicates that apart from initial and subsequent periods of hospitalization, plaintiff’s time is spent around home. His principal exercise and pastime is walking, which he can do for stretches of three or four blocks without pain or shortness of breath. He has been characterized by his physician as an extremely nervous individual, a typical coronary type, one for whom another acute attack is merely a question of time. It ap*619pears that plaintiffs walking exercise has been his main transition from active employment to the life of a semi-invalid which he now leads. He walks about his yard or the neighborhood when the weather is good. During inclement weather, he will walk inside his house, from one room to another or out into a connecting garage. Once or twice a week he will accompany his wife or mother to the grocery store or to a shopping center where he can walk about for a change of scenery. His walking, which is done in stretches of three or four blocks, may total as much as two miles on some days. He also drives on occasion, although this has been curtailed by his physician because of the arm motion involved. He estimated that he might do approximately ten percent of the family driving around town. For instance, he testified that he may on occasion pick up his seven-year-old daughter from the neighborhood school or that he occasionally drives his mother to the store.

Except for monthly visits to his doctor and occasional visits to neighbors, the above constitutes the extent of plaintiffs activities outside the home. During the course of his day, plaintiff takes the following medication prescribed by his physician: digitalis, Nitrobid, Coumadin, Bentyl, and Nitrostat (which is an improved form of nitroglycerin and which plaintiff takes in times of distress).

Following the onset of plaintiffs disability in March 1969, defendant paid plaintiff the $200 monthly indemnity for two years pursuant to § 3D(1) of the policy. Defendant’s refusal to pay continued benefits pursuant to § 3D(2) of the policy resulted in plaintiffs complaint on October 27, 1971, in Muskegon Circuit Court. It was the opinion of plaintiffs physician that the rigors of trial might precipitate another coronary. For that rea*620son, and on the stipulation of counsel, a bench trial was had at which the depositions of plaintiff, his treating physician, and defendant’s medical expert, Dr. David A. Amos, M. D., were admitted into evidence. The trial court entered judgment for the defendant on the ground that, although plaintiff had been totally and continuously disabled within the terms of the policy at issue, he was disqualified by reason of the confinement clause for further benefits. The Court of Appeals reversed at 61 Mich App 377; 232 NW2d 710 (1975), in a scholarly opinion whose analysis and whose result we affirm.

Perhaps the best discussion regarding the development of case law pertaining to house confinement clauses is found in Anno, When is one conñned to house within meaning of health or accident insurance policy, 29 ALR2d 1408, 1412-1413, wherein it is stated in summary:

"While there is considerable authority supporting the view that 'house confinement’ clauses are to be literally construed, so as to preclude recovery where the insured for any reason, with the possible exception of emergencies beyond his control, leaves the house, the great majority of cases support the so-called liberal construction view.
"Two quite generally accepted doctrines, with reference to the insured’s right to recover under a specific factual situation, emerge from the cases.
"The first of these is the doctrine that 'house confinement’ clauses are not violated where the insured occasionally departs from within the four walls of the house for the purpose of getting fresh air and exercise, in a bona fide attempt to improve his health, particularly where such departures are undertaken by the direction of a physician, or where he visits his physician’s office or a hospital for examination and treatment.
*621"On the other hand, where the insured is able to, and does, leave his house for primarily business or other non-therapeutic records [sic] , he can no longer be considered within the scope of a 'house confinement’ clause.”

A review of recent decisions compiled in the Later Case Service of this collection reveals that most if not all jurisdictions which have recently confronted the issue follow the liberal rule.

In 1A Appleman, Insurance Law and Practice, §§652-653 (1976 Pocket Part, pp 134-135), it is stated:

"The term 'continuous confinement’ in a disability policy has been considered to describe the nature and extent of the insured’s illness, or disability, and not prescribe limitations on the conduct of the insured.
"But where the insured is able to and does leave his home for primarily business or other personal, as contrasted to therapeutic, reasons, even the more liberal courts generally tend to deny recovery for illness or disability under a policy requiring confinement within house or within doors.”

See, also, 15 Couch on Insurance 2d, §§ 53:141-53:148.

Michigan had an early commitment to liberal construction of such confinement clauses. In Hoffman v Michigan Home & Hospital Ass’n, 128 Mich 323; 87 NW 265; 54 LRA 746 (1901), the confinement clause, which read "continuously confined to his bed, or continuously confined to the house”, was even more restrictive than the clause here at issue. The facts of Hoffman reveal, that although plaintiff was totally disabled from engaging in his bakery-confectionery business, he was allowed by his physician to leave his residence, which was in *622the same building as his bakery, and to travel to Chicago in order to seek a more tranquil convalescence away from his business. Plaintiff Hoffman further testified that he took morning walks during the period of his convalescence in Chicago. Nevertheless, this Court upheld a jury verdict for plaintiff and approved an instruction by the trial court which reads in part as follows:

" 'I charge you, gentlemen, that, to constitute a compliance with this provision, it is not necessary that the plaintiff should remain in the house continuously during the entire time of disability; that to step out of doors now and then, or to occasionally go to the office of his physician, would not be a violation of this clause, or defeat plaintiff’s right of recovery. It may be that an occasional airing is essential to a speedy recovery. A rule which would make nugatory a contract having for its special object indemnity on account of sickness, because the insured took an occasional and necessary airing, would be unreasonable. Was the plaintiff sick, and with a disease covered by his policy, to the extent that he was totally disabled from prosecuting any business? and was he continuously confined to his house on account of such sickness, to the extent that he was necessarily and in good faith there the larger portion of his time, and only went forth either from necessity for consultation with, or by direction of, the physician in whose charge and care he was? An answer to this question will determine this branch of the case.’ ” 128 Mich at 327-328.

However, as was noted by the Court of Appeals, Michigan precedent on point became less than clear when Hoffman was distinguished in Shirts v Phoenix Accident & Sick Benefit Ass’n, 135 Mich 439; 97 NW 966 (1904), and Cooper v Phoenix Accident & Sick Benefit Ass’n, 141 Mich 478; 104 NW 734 (1905).

*623We are of the opinion that, if there has been an apparent retreat from the liberal approach of Hoffman, the time has come for us to reaffirm the basic soundness of that case. The principal purpose for which one insures against sickness and accident is to provide indemnity for the period of inability to engage in gainful employment. In such cases, technical construction of policy language which would defeat a reasonable expectation of coverage is not favored. Ebert v Prudential Ins Co of America, 338 Mich 320, 325; 61 NW2d 164 (1953). Here, even a literal reading of the policy does not require that plaintiff remain within the four walls of his home. And, if the insured could with impunity take his prescribed walks in his yard, the fact that he can and does engage in the same quantum of activity outside the confines of his yard should not disqualify him from benefits. Especially is this the case where, as here, the insured is required by the policy terms to be under a physician’s regular care and the physician prescribes the complained-of "activity for its therapeutic value.

We agree with the Court of Appeals that medical testimony to the effect that plaintiff was essentially free to come and go as he pleased is not determinative of the issue. A fair reading of that testimony is that plaintiff could engage in activity if he felt able to do so, and that he should desist if he experienced fatigue or angina. Such testimony is consistent with modern medical treatment of such heart cases — which is essentially to let the patient pace himself. Furthermore, defendant’s contention on appeal that the extent of plaintiff’s activities should disqualify him from benefits becomes even less convincing in light of defendant’s contention below that plaintiff could and should *624increase the level of his activities by increasing his reliance on nitroglycerin.

The extent of plaintiffs activities is approximately that of the plaintiffs in the following cases: Cassady v United Ins Co of America, 370 F Supp 388 (WD Ark, 1974); Guarantee Trust Life Ins Co v Patterson, 56 Tenn App 301; 406 SW2d 338 (1966); Manuel v American Income Life Ins Co, 254 La 316; 223 So 2d 817 (1969); Occidental Life Ins Co of California v Vervack, 244 Ark 1231; 429 SW2d 116 (1968); and Tyler v United Ins Co of America, 243 SC 114; 132 SE2d 269 (1963). In each of the above cases, the insured was wholly disabled by heart disease. In each case the treating physician, in conformity with modern medical practice, had prescribed mild, nonproductive activity such as walking to prevent further bodily decline or to relieve anxiety incident to the change in life pattern. In each case, the reviewing courts examined the totality of activity involved, found that the excursions were not for business or personal purposes, and held that tho claimants were substantially confined. Such is the case at bar.

The Court of Appeals is affirmed, with costs to plaintiff.

Kavanagh, C. J., and Williams and Levin, JJ., concurred with Fitzgerald, J.