
    Wagner v. Nationwide Mutual Ins. Co.
    (No. 130580
    Decided January 31, 1968.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Baggott S Ernst, for plaintiff.
    
      Messrs. Altich S McDaniel, for defendant.
   Brenton, J.

This cause was tried to the court, a jury having been waived, and is now before the court for determination upon the facts, briefs, arguments of counsel and the law.

On September 23, 1966, plaintiff, an eighty-five (85) year old male, in general good health, was within his automobile insured by the defendant at the time it was in a collision which resulted in personal injuries to plaintiff, for which he was hospitalized.

Upon admission plaintiff was suffering from lacerations of the chin and lower lip, together with fractures of the left fourth and fifth ribs. Following sutures and treatment his condition initially seemed to be ■ satisfactory; however, on September 27, 1966, he became restless and confused and despite restraints would get out of bed and walk at various intervals. This went on intermittently until September 30, 1966, during such an episode he was found on the floor at the doorway of his room, after which X-ray revealed a fracture of the right femur. From these facts it may fairly be inferred that he fell to the floor. On October 14, 1966, an open reduction and fixation was performed which was uneventful. On November 17, 1966, he was discharged from the hospital to a nursing home where he still remains under the care of a physician.

The plaintiff’s special damages resulting from the foregoing events are alleged to amount to $6,806.11. He makes claim for $5,900.00, the limit of the defendant’s liability.

The court is asked to declare the rights of the plaintiff and the obligations of the defendant under the policy contract between the parties.

First, upon examination of the insurance policy and its endorsements, the court determines that the rights and obligations are to be extracted from the Family Compensation Insurance Endorsement 479D-3.

The applicable portions of the insuring agreement to be construed are as follows:

“To pay, * * *, to or for the benefit of the policy-holder (named insured), and (other persons) who by accident suffer bodily injury, sickness, disease or death while in or upon, entering or alighting from the described automobile, * * *; all reasonable expenses for medical, dental or surgical treatment, ambulance, hospital, professional nursing and prosthetic devices, incurred within one year following the accident and caused by it, not to exceed in total for any one person $5,000.00,” and “For each day, within 180 days after the accident, continuously and necessarily confined indoors due to the injury under the care of a licensed physician other than himself — payable monthly: $5.00.”

The question presented is: Are the expenses and the confinement attributable to the fractured femur covered by the aforesaid insuring agreement?

In part the inquiry has to do with whether or not there is in fact and law a causal connection between the automobile accident and plaintiff’s apparent fall on the floor of the hospital seven days thereafter. The inquiry also involves construction of the provisions of the Family Compensation Endorsement.

The further determinations that must be made are by the court approached as to how, with fairness to the plaintiff (the insured), and without reading the limitations on the coverage afforded out of the insurance contract, the court is to determine whether the hospital, medical and related expenses for the care, treatment and confinement of a fractured femur for which this plaintiff seeks reimbursement constitutes a loss caused by the “automobile accident” of September 23, 1966.

It is cardinal in our law that in construing an insurance policy there is a presumption that the insurer intended to have the insured understand that, in event of loss, he would be protected to the full extent that any fair interpretation would allow.

Considerable research indicates rather conclusively that all courts, including Ohio courts, adhere to the rule of liberal construction in construing insurance contracts. Where fine distinctions, ambiguities or other doubtful meaning exist in such contracts they should be resolved, where reasonable to do so, strictly against the insurer.

McKay v. Travelers Indemnity Co. (1963, Ohio, C. A.), 193 N. E. 2d 431; Carson v. Nationwide Ins. Co., 160 N. E. 2d 506, 14 O. O. 2d 137; Wright v. Beacon Mutual Ins. Co., 179 N. E. 2d 547. (For comprehensive discussion together with numerous propositions of law relating to the several qualifications of liability on accident insurance and a multitude of authorities see Mahon v. American Cas. Co., 167 A. 2d 191.)

This court is also of the opinion that in Ohio and elsewhere the courts adhere to another fundamental rule of construction which is:

“If the terms of an insurance policy are of doubtful meaning, that permissible construction which is most favorable to the insured is to be adopted; but if they are plain and unambiguous the established rules for the construction of contracts apply, — the language, from which the intention of the parties is to be deducted, must be accorded its natural and ordinary meaning, and courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties. Ross v. Protective Ind. Co. (Conn.) 62 At. 2d 340. Rule well recognized in Kamroff v. Maryland Gas. Co., 105 Conn. 402; Aschenbrenner v. U. S. Fid. & Guar. Co., 292 U. S. 80; Dover v. Standard Acc. & Ind. Co., 92 N. H. 59.

Briefs of counsel and the court’s independent research fail to reveal that the precise determination confronting this court in this cause has been articulated by any court. Nevertheless there are several analogous cases which render aid and comfort.

In Andersen v. Standard Life & Acc. Insurance Co., No. 8332, decided by the Supreme Court of North Dakota, 3/16/67, reported in 1966 Automobile Cases (C. C. H.) 6508, held: “Where an insured while attempting to extricate his car with log chain and tractor was crushed to death, that his death was not within the terms of a limited coverage accident policy insuring against loss from accidental bodily injury sustained “while driving or riding within” the automobile.

In Goetz v. Gen. Acc. Fire & Life Assurance Corp., reported in 1966 Auto Insurance Cases (C. C. H.) 5053, the court held that the loss for medical occasioned from an assault outside the car was not covered.

In Wertman v. Michigan Mut. Liability Co., 267 Mich. 508, the insured ran into pole and it was broken; he alighted to investigate, came back to car, opened car door and was electrocuted — a live wire having fallen across the car. Held that the death was not within the limited coverage “while riding in an automobile.”

In Laporte v. North American Accident Ins. Co., 161 La. 933, insured was thrown from his motorcycle and thereupon was knocked down and run over by an automobile; held not within the protection of a policy providing indemnity for being struck or knocked down or run over while standing or walking on a public highway.

In Rodgers v. Commercial Casualty, 237 Ala. 301, the insured stopped her car — walked across highway to go to a toilet of an abandoned filling station near a path leading to the toilet (no intersection), she was struck and killed. Meld: no coverage under policy limiting loss to “by being struck or knocked down or run over while walking across a public highway on regular crossings at highway intersections only.”

The Ohio Supreme Court had before it a policy that provided indemnity for death resulting from injuries from being “thrown out of” an automobile or caused by the “wrecking” of an automobile. The insured, apparently in good health up to the time of running his car into a ditch, and after his car reached a state of repose for some hours, and while he was adjusting a deranged gear shift died. It was determined that he had a stroke of apoplexy. Meld: Insured died of apoplexy not caused by “wrecking” or being “thrown out of” a car. National Casualty Co. v. Bogart, 125 Ohio St. 291.

The facts before the court admit that plaintiff was in an accident while he was in the described automobile and that it caused lascerations and fractured ribs. That while hospitalized he developed, at an early stage, uremia, encephalopathy and acute urinary retention, which were complications and not necessarily uncommon following trauma to a man of his advanced age. It would therefore appear that it may fairly be said that the foregoing injuries were by the plaintiff suffered by accident while in the described automobile and that the reasonable expenses incurred for the care and treatment for the injuries and such sickness aforesaid within one year following the accident, were caused by it and thus recoverable.

The recoverability for incurred expenses following the fractured femur is not susceptible to so ready a solution upon the facts and the law. Further the difficulty with the cases relied upon by the plaintiff arises because they have to do with the much litigated question as to when and the extent to which the presence or contribution of predisposing bodily conditions or disease affects the right to recovery on an accident insurance policy.

The plaintiff does suggest that the absence of an exclusionary clause from a policy with only a limited coverage clause is a vitally significant factor in the effort to arrive at a construction fairly according with the intent of the insurer in writing it and the reasonable expectations of the insured in buying it. This may well be true if the limitations are ambiguous or doubtful and susceptible to more than one interpretation. The suggestion should also apply if the words of limitation were beclouded with exceptions, qualifications or exemptions.

It is universally held that none of these rules of construction apply where the language of the contract is unequivocal and unambiguous or the ambiguity can be resolved by the ordinary rules of interpretation.

The rule of liberal construction furnishes no warrant for avoiding hard consequences by imparting into a contract an ambiguity which otherwise would not exist. Bergholm v. Peoria Life Ins. Co., 284 U. S. 489.

The loss in question, which again must be noted, is the medical and hospital expenditures necessitated and incurred by the fractured femur which appeared within a week after the accidental injury. No one claims that the plaintiff suffered a fractured femur at the time of the automobile collision. The claim is that “but for” the automobile accident he would not have been injured and rendered sick and “but for” the sickness he would not have been disoriented and “but for” the disorientation he would not have extricated himself from the hospital bed and “but for” the extrication from the bed he would not have been up in his room unattended and “but for” the latter he would not have fallen to the floor and fractured his hip— and therefore the loss in question was caused by the originating automobile accident. It would seem that this argument is defeated by the maxim, causa próxima non remota spectatur.

Tbe Family Compensation Clause is written in plain everyday English, understandable by the average insurance buyer. The key words are susceptible to only one construction. Those words are “and caused by it”; they qualify and confine the expenses incurred to those caused by the accident — the automobile accident. Any number of things could have occurred to the plaintiff resulting from his confinement after the automobile accident such as further injury or sickness by setting himself on fire or from some other source, collapse of the bed, any number of communicable diseases and so on infinitus.

Plaintiff’s illness following the automobile accident was a condition but not the cause of his fall and fractured hip. There is no causal connection between the automobile accident and the fall in the hospital. The fall was an independent accident and the medical and hospital expenses incurred in the care and treatment of the resulting fractured femur may have been caused by the failure to properly restrain the plaintiff. In any event the plain and ordinary meaning of the language employed in the insuring agreement admits of no other rational interpretation except under all the facts and circumstances the loss in question was not caused by the automobile accident.

Plaintiff’s recovery is therefore limited to such expenses as were incurred following the accident, • the automobile accident, and caused by it. The evidence shows that the reasonable expenses covered thereby amount to $1544.75 for which judgment is granted in favor of the plaintiff.

Counsel shall draft and submit for approval an entry conforming with this decision.  