Opinion
May 14, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 748
Litvak, Schwartz & Karsh, P.C., Lawrence Litvak, Denver, for plaintiff-appellant.
Gorsuch, Kirgis, Campbell, Walker & Grover, Richard B. Harvey, Denver, for defendant-appellee.
SILVERSTEIN, Chief Judge.
Plaintiff, Max Okon, sought recovery under a policy written by defendant, Pacific Mutual Life Insurance Co., for alleged total disability following an automobile accident. At the close of plaintiff's evidence in a trial to the court, on motion of the defendant, a judgment dismissing plaintiff's complaint was entered. Plaintiff appeals from that judgment. We affirm.
Determination of the case depends upon the application of the policy provisions hereinafter set forth to the facts established by plaintiff's evidence. The policy provides, as pertinent here:
'A. SICKNESS TOTAL DISABILITY--If sickness results in a period of total disability which commences while this policy is in force and requires the regular care of a license physician, Monthly Income at the rate (of $400 per month) will be payable for the period throughout which such total disability continues . . . and for not exceeding (2 years).'
'B. ACCIDENT TOTAL DISABILITY--If injuries result, directly and independently of all other causes, in a period of total disability which commences within ninety days after the date of accident and requires the regular care of a licensed physician, Monthly Income at the rate (of $400 per month) will be payable for the period throughout which such total disability continues . . .. If such injuries result in a period of total disability which commences more than ninety days after the date of accident and whild this policy is in force, such period shall, for purposes of this policy, be deemed to be due to sickness and Monthly Income will be payable in accordance with the provisions of Section A above.'
'TOTAL DISABILITY--means the complete inability of the insured due to sickness or injuries to perform Any and every duty pertaining to his occupation . . ..' (emphasis supplied)
Plaintiff was a self-employed produce peddler who owned and drove his own truck. He had no employees and handled all the physical labor as well as the administrative end of the business himself. His method of operations was to select and load produce at the market and deliver it to his customers daily.
On November 18, 1968, he was injured in an auto accident. For eleven months thereafter, and until he entered a hospital for an operation on October 15, 1969, he continued to operate the business. However, because of his injuries, he was required to hire a helper who loaded and unloaded the truck, and, who, if properly licensed, also drove the truck. During this period, plaintiff continued to go to the market each morning and select the produce, ride the truck, direct deliveries, and on occasion help unload the merchandise. He also drove the truck if his helper for the day was not licensed to do so. He also continued to keep daily sales records and collect his accounts.
Following his release from the hospital, plaintiff, on December 18, 1969, filed his claim with defendant for total disability. Defendant admitted plaintiff had become totally disabled following the operation, and it paid plaintiff $400 a month for two years, covering the period from October 15, 1969, through October 15, 1971, as provided under the 'Sickness Total Disability' clause of the policy. Plaintiff claims in this action that he is entitled to receive the monthly payments for as long as he is totally disabled and under doctor's care. As bases for his claim, plaintiff asserts that the definition of total disability in the policy is ambiguous. He further asserts that in any event plaintiff was totally disabled, as defined in the policy, from the date of the accident, and that therefore the sickness disability limitation is inapplicable.
The trial court found that the policy was not ambiguous, that plaintiff performed numerous and substantial duties in his business during the ninety-day period in which he claimed total disability, and that he had failed to establish that he was entitled to the benefits claimed. These findings are fully supported by the evidence.
We see no ambiguity in the above quoted definition of total disability. A similar provision was considered in Nelson v. Combined Insurance Co., 155 Mont. 105, 467 P.2d 707. We agree with that court's conclusion that: 'In our view the language . . . is plain, unambiguous, direct and certain . . .. It is difficult to conceive how any more explicit or limiting language could be used.'
The facts as found by the trial court clearly establish that plaintiff was not totally disabled during the initial ninety-day period, since he continued to perform all of the duties of his occupation except the loading, and on occasion, the driving of the truck. 'Where provisions of an insurance policy are couched in plain and unambiguous language and do not contravene some principle of public policy, a court has no right by a forced construction or interpretation to require a result not intended by the contracting parties.' Massachusetts Mutual Life Insurance Co. v. De Salvo, 174 Colo. 115, 482 P.2d 380; Denton v. Prudential Insurance Co., 100 Colo. 293, 67 P.2d 77.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.