Burkett v. Continental Casualty Co.

DEVINE, P. J.

William A. Burkett, plaintiff, brought an action against defendant, Continental Casualty Company, to recover on a disability insurance policy. He was awarded judgment for the maximum benefits in the amount of $1,000 per month from February 12, 1966, to the date of judgment, October 19, 1967, but subject to deduction for amounts representing workmen’s compensation benefits ‘paid or payable.” Plaintiff appeals on the ground that no workmen’s compensation benefits actually were paid to him and that none were “payable,” wherefore the deduction should not have been allowed.

Continental Casualty Company cross-appeals, asserting that the policy provides benefits for a disability

commencing

while the policy is in force, even though such disability is the result of an illness or sickness which pre-existed the issuance of the policy, and that plaintiff’s disability did not

commence

during the life of the policy but commenced earlier.

Plaintiff’s Appeal

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 ot 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

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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, “I 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.