Opinion
November 16, 1961
Appeal by defendant from an order of the City Court of Troy which denied defendant's motion, and granted that of plaintiff for summary judgment in an action to recover on a group accident and health policy. Under the insuring clause, the policy "provides benefits for loss resulting from accidental bodily injury which does not arise out of or in the course of any occupational employment for wage or profit and which is effected directly and independently of all other causes". Concededly, plaintiff sustained accidental injury arising out of and in the course of his employment and received workmen's compensation as well as the net proceeds of a recovery in a third-party negligence action. Consequently, benefits were excluded under the clause restricting coverage to "accidental bodily injury which does not arise out of or in the course of any occupational employment". We find no ambiguity in the insuring clause and no basis for plaintiff's contention that the clause "and which is effected directly and independently of all other causes" in some way modifies the preceding clause and constitutes, in the words of his brief, "a limitation of the occupational exclusion in that the occupational accident to be excluded must be directly related to the employment and independent of all other causes"; the limitation being inapplicable, in plaintiff's view, because the injury did not arise "solely as the result of his occupational employment" and the "direct cause * * * was the negligence of a third party". Although the employment necessarily occasions every accidental injury compensable under the Workmen's Compensation Law, it would not commonly be regarded as its direct and independent "cause", as cause must always be related to a physical factor and precipitant, and not merely to status. It seems to us quite clear that under the questioned clause the requirement is that the "accidental bodily injury" be noncompensable under the Workmen's Compensation Law and be "effected directly and independently" of any cause other than accident, as, for example, contributory disease. The phrase "directly and independently of all other causes" in substantially similar context has been given that effect in a number of cases. (See McGrail v. Equitable Life Assur. Soc., 292 N.Y. 419; McMartin v. Fidelity Cas. Co., 264 N.Y. 220; Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81; Smith v. Massachusetts Bonding Ins. Co., 207 App. Div. 682, affd. 241 N.Y. 558; Towle v. John Hancock Mut. Life Ins. Co., 333 Mass. 345; cf. Moeller v. Associated Hosp. Serv. of Capital Dist., 304 N.Y. 73.) Plaintiff's additional contentions seem to us without merit and do not require discussion. Order reversed, on the law and the facts, without costs. Defendant's motion for summary judgment granted and that of plaintiff denied, with $10 costs. Bergan, P.J., Coon, Gibson and Reynolds, JJ., concur.