Opinion
Sept. 17, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Epstein, Lozow & Preblud, P.C., Robert C. Tobias, Denver, for plaintiffs-appellees.
Dawson, Nagel, Sherman & Howard, Raymond J. Turner, H. Clay Whitlow, Denver, for defendant-appellant.
VAN CISE, Judge.
Commercial Insurance Company of Newark, N.J., (insurer) appeals from a judgment in favor of plaintiffs, Mr. & Mrs. Lozow, for $673.25, the total costs of medical treatment and hospital care arising out of an operation on Mrs. Lozow's lower eyelids. We affirm as to liability, and modify as to the amount of the judgment.
The main issue on this appeal is whether the expenses of an operation performed in October 1972 on Mrs. Lozow's eyelids are excepted from coverage under insurer's hospital-surgical policy initially issued in 1971 to the Lozows. The insuring clause in the policy states:
'This policy insures against loss due to covered medical expenses incurred by . . . members of the Insured's family . . . resulting directly from accidental bodily injury occurring during any term of this policy . . . or resulting from sickness commencing during any term of this policy . . ..'
Specifically excepted from coverage were expenses incurred 'as the result of plastic surgery, except when incurred by such injury.'
Mrs. Lozow had had symptoms of drooping eyelids for approximately six years, but there was not evidence of any medical treatment for this condition until about a month prior to surgery. The condition was not caused by any injury. The operation performed was a 'lower lid blepharoplasty.' No evidence was offered defining the word 'blepharoplasty,' although in insurer's motion for new trial a definition ('plastic surgery of the eyelids') from a medical dictionary was called to the court's attention.
The trial court concluded that the treatment and surgery received by Mrs. Lozow were covered by and were not excepted by the policy, and entered judgment against insurer for the full amount of the medical and hospital expenses.
Insurer contends that the surgery was not covered because (1) it was plastic surgery not necessitated by injury, and (2) that it resulted from a condition that originated prior to the issuance of the policy. As to whether it was plastic surgery, there was no evidence presented other than documents using the word 'blepharoplasty' for the operation performed. Insurer asks us to accept and to take judicial notice of its dictionary definition of the word, and from that to hold that the expenses of this operation were not covered by the policy.
I
Even if this court on appeal can on its own consult dictionaries to determine the meaning of technical or scientific words or phrases that are not matters of common knowledge (and the court makes no determination on this point), in this instance such a search is not conclusive. Some dictionaries, such as Webster's Third New International Dictionary, pp. 233, 1734 (1968), Dorland's Illustrated Medical Dictionary, p. 187 (23rd ed.), and Taber's Cyclopedic Medical Dictionary, p. B--37 (12th ed. 1973), defined 'blepharoplasty' as 'plastic surgery of the eyelids' or 'plastic operation on the eyelid.' However, other dictionaries, such as Stedman's Medical Dictionary, p. 162 (22nd ed. 1972), or Blakiston's Gould Medical Dictionary, p. 204 (3rd ed. 1972), define the word as 'any operation for the restoration of a defect in the eyelid' or as 'an operation for the restoration of any part of the eyelid.' This court on appeal will not choose between definitions in order to reverse a judgment.
Ambiguities in insurance policies are to be construed most strongly against the insurer and in favor of the insured with respect to coverage, exclusions, and conditions. Beeson v. State Auto & Casualty Underwriters, 32 Colo.App. 62, 508 P.2d 402, affirmed, Colo. 516 P.2d 623; Aetna Casualty & Surety Co. v. Transamerica Title Insurance Co., 29 Colo.App. 87, 480 P.2d 585. The burden of proving a claim to be within a policy exclusion is on the company. Ferndale Development Co., Inc. v. Great American Insurance Co., Colo., 517 P.2d 480. We hold that the insurer has failed to establish by competent evidence that the operation was plastic surgery and was therefore excepted from coverage on that basis. II
As to whether Mrs. Lozow's eyelid condition was a 'sickness commencing' prior to the term of the policy and therefore not covered, the evidence showed that Mrs. Lozow's 'first symptoms' of 'drooping lower eyelids' were 'six years prior to admission', to the hospital for surgery October 5, 1972, but that she first consulted a physician in September of 1972. The evidence, therefore, is in conflict as to whether or not this 'sickness' commenced subsequent to 1971 and as to when her condition became a 'sickness.' The trial court having resolved this conflict adversely to the defendant, we are bound by its determination. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537, West v. Credit Life Insurance Co., 30 Colo.App. 455, 494 P.2d 601.
Insurer also contends that because Lozow in his policy application did not disclose that his wife had had treatment in the past for certain ailments in no way related to the eyelid condition, the insurer can avoid the policy and thus the eyelid operation claim. No evidence was introduced, however, to show that these alleged misrepresentations were material or that the insurer would not have issued the policy had the answers on the application been substantially different. The burden of proof of an exclusion being on the insurer, Ferndale Development Co., Inc. v. Great American Insurance Co., Supra, and this burden not being met by any substantial evidence, defendant's contention is without merit. See Gomogda v. Prudential Insurance Co. of America, 31 Colo.App. 154, 501 P.2d 756.
Defendant contends that the $673.25 judgment was excessive. We agree. The evidence showed a $300.00 medical bill (within the $350.00 maximum surgical expense benefit) and a $363.25 bill for the three days in the hospital and other expenses therein (partially covered by the $50.00 per day hospital expense benefit, and the $175.00 miscellaneous hospital expense benefit) for a total entitlement under the policy of $625.00. The amount of the judgment should be reduced to $625.00 to conform to the evidence.
Judgment modified as to the amount, and as modified, affirmed. The cause is remanded to the trial court with directions to reduce the principal amount of the judgment to $625.00.
COYTE and KELLY, JJ., concur.