Opinion
6 Div. 863.
May 15, 1962.
Appeal from the Circuit Court, Marion County, Bob Moore, Jr., J.
Lange, Simpson, Robinson Somerville, Birmingham, for appellant.
The burden of proof was upon the plaintiff to show the coverage of the policy. Equitable Life Assur. Soc. v. Langford, 234 Ala. 681, 176 So. 609. Two writings connected by reference one to the other with respect to the same subject matter and proved to be parts of an entire transaction constitute but a single contract as if embodied in one instrument. Provident Life Acc. Ins. Co. v. Pressley, 37 Ala. App. 153, 64 So.2d 618. Waiver and estoppel cannot be used to extend the coverage of an insurance policy or create a primary liability. Equitable Life Assur. Soc. v. Langford, supra; Emergency Aid Ins. Co. v. Plummer, 35 Ala. App. 520, 49 So.2d 680; Jersey Ins. Co. v. Roddam, 256 Ala. 634, 56 So.2d 631. The word child cannot mean a nephew. A foster child is not the real child of a subscriber. In re Norman's Estate, 209 Minn. 19, 295 N.W. 63; Cicchino v. Biarsky, 61 A.2d 163, 26 N.J. Misc. 300; Spencer v. Title Guarantee Loan Trust Co., 222 Ala. 485, 132 So. 730.
Rankin Fite and Robt. H. Thomas, Hamilton, for appellee.
Contracts of insurance are to be construed most strongly against insurer. Standifer v. Inter-Ocean Ins. Co., 37 Ala. App. 393, 69 So.2d 300; Smith v. Penn Mutual Life Ins. Co., 244 Ala. 610, 14 So.2d 690. Ambiguities or uncertainties in contract of insurance will be resolved in favor of the insured. John Hancock Mut. Life Ins. Co. v. Schroder, 235 Ala. 65.5, 180 So. 327. Appellee was at the time of execution of the application a dependent of Leburn Gann. United Security Life Ins. Co. v. St. Clair, Ala.App., 130 So.2d 213. The word "child", as used in a policy of insurance is to be taken and understood in its plain, ordinary, usual and popular sense, rather than the technical sense. 44 C.J.S. Insurance § 294, p. 1155; The Praetorians v. Hicks, 234 Ala. 451, 175 So. 258; Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175; Booker T. Washington Burial Ins. Co. v. Williams, 27 Ala. App. 393, 173 So. 269.
Blue Cross appeals from a judgment for $252.30 in favor of Kelley in an action on two of its certificates, here called the "1956" and "1960" certificates.
In July, 1956, Blue Cross issued a Family Group Hospital Service certificate with a Medical and Surgical Benefit Rider (composing a "Y M" contract) to Mr. Leburn Gann. Mr. Gann worked for Marion County and came under a payroll deduction plan whereby the county board of revenue deducted premium payments from his salary and remitted them to Blue Cross. On the back of the 1956 application, Mr. Gann listed four dependents, among whom was the appellee referred to as "Terry Gann" and described as "son."
There was no proof as to whether the board of revenue continued to deduct from Mr. Gann's earnings for the 1956 certificate after the 1960 certificate became effective.
In 1960 Mr. Gann applied for and was issued a "$25 Deductible Hospital Service Certificate" with an "In-Hospital Medical Benefit Rider" and a "Surgical Benefit Rider No. 4 $200 Maximum." This made up a "C 4-10" contract, No. 944193. On the reverse of the 1960 application, Mr. Gann included only his wife.
About February 7, 1961, Terry Kelley (admittedly Terry Gann) had his appendix taken out. He incurred a hospital bill of $177.30. His two surgeons charged $150 and $50, respectively.
The 1956 certificate defines "Family Group" pertinently as follows:
"* * * the subscriber and (if listed on the subscriber's application) also means and includes the subscriber's spouse and/or any unmarried child of the subscriber * * * under the age of nineteen (19) years * * *"
The 1960 contract, which is substantially the same in this definition, also embraces "any legally adopted child or any child living with the adopting parents during the period of probation."
Terry Kelley was Mr. Gann's nephew. He had been living in the Gann household since he was six weeks old. He had never been adopted. Adoption comes from statute law only. See references in Franklin v. White, 263 Ala. 223, 82 So.2d 247.
The appellant's brief summarizes the problem of construction of the contract documents thus:
"Appellee evidently depends on the fact that Terry Gann, or Kelley, was a 'dependent' of the subscriber, Leburn Gann. To support this theory, appellee introduced Exhibits A, B and I. These exhibits consist of the identification cards which accompanied each of the policies and a letter signed by H.F. Singleton, Executive Director of the appellant. * * *"
The word "dependent" to describe a proposed insured is used at least twice in the contract documents. These documents as defined and cross referenced are:
A. 1956 Contract B. 1960 Contract ------------- --------------
1) Application 1) Application
2) Identification 2) Identification Card Card
3) Hospital Service 3) Hospital Service Certificate Certificate
4) Medical Surgical 4) In-Hospital Medical Benefit Benefit Benefit Rider Rider
5) Surgical Benefit Rider
Application for the 1960 Contract may well also include the 1956 application as well. Plaintiff's Exhibit "G," Section I, 3, provides:
. In view of remandment, we consider that Code 1940, T. 28, § 75, would have to be complied with to allow the applications to be admissible (Independent Life Ins. Co. of America v. Butler, 221 Ala. 501, 129 So. 466), unless there is proof of Blue Cross being a hospital service corporation entitled to the exception (from the contractual requisites of § 75, supra) under T. 28, § 316.
"3. 'Application' means the subscriber's original application to the Corporation for a Hospital Service Certificate, together with any supplemental application which has been accepted by the Corporation."
Thus, the appellee contends that, since both identification cards and both applications use the word "dependent" in describing persons purportedly covered or to be covered, ambiguity is created by the use of "dependent" in one place and "child" in another. Under familiar and proper principles, it is argued that the claimed ambiguity must be resolved against the maker of the printed agreement, citing John Hancock Mut. Life Ins. Co. v. Schroder, 235 Ala. 655, 180 So. 327.
However, in view of the definitions of "Family Group," supra, we hold that the word "dependent" is without ambiguity, being limited to the subscriber's spouse and his children, and does not include a nephew who has not been adopted.
The judgment below is due to be reversed and the cause is there remanded.
Reversed and remanded.