HomeMy WebLinkAbout0578 19?5 Plaintilf purchased the sub~ect policy from Defendant's
agent. She did not solicit this policy. It was.sold to her
by Defendant's agent who came into Plaintiff's place of .
employmeat uninvited for the purpose of selling the po2icy~
which he did. In barch of 1976 Plaintiff's bunion condition
became symptomatic and extremely painful after~ as she testified,
her foot slipped while pumping up a customer's chair. Be this
as it may, the facts are clear that Plaintiff at this time
becaine disabled to the extent that she was unable to work at -
her occupation and required hospitalization and an operation
for bilateral hallus valgus and bunionectomies were performed
on both her feet by Joseph DiBartolo, ~.D. As a result the
Plaintiff was totally disabled for 11 months within the
policy definitions of total disablement.
From the facts the Court determines that the Plaintiff
did not sustain an accident and therefore cannot recover under
Benefit "A" of the policy hereinabove referred to. The Court
does however feel that Plaintiff is entitled to recover u~der
the sickness provis~ons of Benefit "B" of the policy. The
policy does not define sickness aad makes no attempt to limit
' the legal definition of sickness, therefore the accepted~
definition of sickness as set forth in the general law must
be utilized. The Supreme Court of Florida has addressed this
problem in the case of Continental Casualty Coropany v. Evelyn ~
Gold decided on January 6, 196~ and reported in 194 So.2nd.272.
In this case the Court, in holding that a diseased condition
pre-existing the issuance of the policy would not prohibit
recovery of benefits thereunder if "sickness" occurs within
the policy coverage period, quoted favorably from 29 Am. Jur.,
Insurance, Sec. 1154, 301 as follows:
"The words 'sickness' and 'disease' are
technically synonymous, but when given the -
popular meaning in construing a contract of .
insurance, 'sickness' is a conditi~n interfering
_2_ ~~~g7 ~ 57~
~ _ ~
_ _ . ~ ~ _ ~