Opinion
No. 43778.
February 7, 1966.
1. Insurance — hospital and medical service policy — exclusion — where hospital and medical bills paid by employer's compensation carrier.
Workman who was injured on job, with employer's compensation carrier voluntarily paying medical bills and being later reimbursed out of recovery by worker and carrier in a third-party suit against negligent tort-feasor, could not recover upon hospital and medical service policy where clause therein provided that no benefits would be paid for care for any injury or illness provided for, or for which any award of settlement was received in any proceeding filed under workmen's compensation or employer's liability law, or in any case where employer accepted liability.
Headnote as approved by Ethridge, C.J.
APPEAL from the Circuit Court of Wayne County; ARLO TEMPLE, J.
Stanford Young, Waynesboro, for appellant.
I. Cited and discussed the following authorities: Aerial Agricultural Service of Montana v. Till (Underwriter for Lloyds of London), 207 F. Supp. 50; Mercantile Life Ins. Co. v. Johnson, 41 Ala. App. 307, 132 So.2d 248.
Hedgepeth, Price Hedgepeth, Jackson, for appellee.
I. Cited and discussed the following authorities: Cash v. American Health Ins. Corp., 203 Va. 719, 127 S.E.2d 119; Mercantile Life Ins. Co. v. Johnson, 41 Ala. App. 307, 132 So.2d 248; Michigan Hospital Service v. Sharpe, 339 Mich. 357, 63 N.W.2d 638, 43 A.L.R. 2d 167; Moeller v. Associated Hospital Service,
304 N.Y. 73, 106 N.E.2d 16; National Bankers Life Ins. Co. v. Cabler, 229 Miss. 118, 90 So.2d 201; Wenthe v. Hospital Service of Iowa, 251 Iowa 765, 100 N.W.2d 903; Secs. 5615-01 et seq., 5615-05, 5615-06, 5615-14, 6998-01 et seq., 6998-36, 7146-11, Code 1942; 29 Am. Jur., Insurance, Sec. 12; Annos. 63 A.L.R. 731, 100 A.L.R. 1456, 119 A.L.R. 1245, 167 A.L.R. 322, 81 A.L.R. 2d 927; 2 Couch, Insurance (2d ed), Sec. 18.51 p. 155.
Ervin Cochran, appellant, brought this suit in the Circuit Court of Wayne County against Mississippi Hospital and Medical Service (called Service), upon a hospital and medical service or insurance policy. Appellee is incorporated under a statute designating it as a "nonprofit hospital, medical and surgical service corporation." Miss. Code Ann. § 5615-01 et seq. (1956). The question is whether a clause, excluding care for an injury provided for by a workman's compensation law, applies to an insured who was injured on his job. The compensation carrier paid the medical bills, but was later reimbursed out of a recovery by insured and carrier in a third-party suit against the negligent tort feasor. We hold that the exclusion clause applies, and affirm the judgment of the circuit court.
Cochran worked for Rex Drilling Company, and incurred personal injuries which required hospital and medical treatment. He filed a claim under the workman's compensation act against his employer, and obtained voluntary payment of all medical benefits under the act from the employer's workman's compensation insurance carrier.
Cochran brought in circuit court a third-party tort action against Dean Griner Butane Gas Company for his injuries resulting from this accident. Miss. Code Ann. § 6998-36 (1956). The compensation insurance carrier intervened as a subrogee of the medical payments it made to Cochran under the compensation act. Upon settlement of the suit against the defendant, the insurance carrier obtained reimbursement from that defendant of the medical payments.
Cochran then filed this suit based upon the hospital and medical service policy written by Service for his wife and himself. The scheduled benefits in the policy, if applicable, aggregated $689.40.
The policy written by appellee stated:
B. NO BENEFITS WILL BE PROVIDED FOR:
. . . 2. Care for any injury or illness provided for, or for which any award or settlement is received in any proceeding filed under a Workmen's Compensation or Employer's Liability Law; or in any case where the employer accepts liability.
The exclusion is applicable under the plain terms of the contract: (1) Care for the injury was "provided for" under a workman's compensation law; (2) an award or settlement was received under a workman's compensation law; and (3) the employer accepted liability under the workmen's compensation law.
Other decisions interpreting a similar provision reached this same conclusion. Wenthe v. Hospital Service of Iowa, 251 Iowa 765, 100 N.W.2d 903 (1960); Moeller v. Associated Hospital Service, 304 N.Y. 73, 106 N.E.2d 16 (1952); Cash v. American Health Insurance Corp., 203 Va. 719, 127 S.E.2d 119 (1962).
(Hn 1) In short, the provisions of the contract excluded this coverage. Cochran did not pay his own hospital and medical bills. Initial liability under the statute was the employer's, and the ultimate liability fell upon the wrongdoer responsible for his injuries. Adoption of Cochran's views would give him a windfall, by collecting his hospital and medical bill from the third-party wrongdoer for his employer, as required by the statute, and again for himself from Service. See Annot., 81 A.L.R. 2d 927 (1962).
Affirmed.
Gillespie, Rodgers, Jones and Robertson, JJ., concur.