Opinion
No. 42,957
Opinion filed December 8, 1962.
SYLLABUS BY THE COURT
INSURANCE — Accident Insurance — Schedule Injuries — Liability for Loss of Foot. Where the accidental injury provisions of an automobile insurance policy cover only loss of life, both hands or both feet or sight of both eyes, one hand and one foot, either hand or either foot and sight of one eye, either hand or either foot, or sight of one eye, the insured's recovery is limited to the loss of a foot although his entire leg is lost.
Appeal from Shawnee district court, division No. 1; BERYL JOHNSON, judge. Opinion filed December 8, 1962. Affirmed.
C.K. Sayler, of Topeka, argued the cause, and David H. Fisher, Donald Patterson, and Jack Summers, all of Topeka, were with him on the briefs for the appellant.
Philip H. Lewis, of Topeka, argued the cause, and O.B. Eidson, James W. Porter, Charles S. Fisher, Jr., and E. Gene McKinney, all of Topeka, were with him on the briefs for the appellee.
The opinion of the court was delivered by
This action stems from a dispute over the amount to be paid for the loss of a leg under the accidental injury provisions of an automobile insurance policy.
The facts material to the issues, all of which were stipulated, may be summarized as follows:
The plaintiff, Harold E. Taylor, carried automobile insurance with the defendant, State Farm Mutual Automobile Insurance Company. The policy contained a special provision designated "Insuring Agreement IV" which made available coverage of "Automobile Accidental Death Indemnity, Specific Disability and Total Disability Insurance."
Insuring Agreement IV was divided into two types of coverage. "Coverage S" covered death, or specific loss (loss of sight or dismemberment). "Coverage T" covered total disability to be paid on a weekly basis but in no event to extend beyond a period of 260 consecutive weeks.
The insured contracted for "Coverage S" but did not contract for "Coverage T." The fact that "Coverage T" was available to the insured but not contracted for by him eliminates such coverage as an issue in this case except as it reflects on the cases cited by the insured in support of his contention. As "Coverage S" presents the policy contract which determines the rights and liability of the parties its provisions will be considered in detail.
Under "Division 1" of "Coverage S" the insurer agrees:
"To pay the principal sum stated as applicable in the exceptions of the declarations in event of the death of each insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile, . . ."
It is stipulated that the principal sum mentioned in the above quotation was $5,000.00.
Under "Division 2" of "Coverage S" the insurer agrees:
"To pay the highest amount stated as applicable in the Schedule, for loss
252 Ala. 107, 39 So.2d 703; Nelson v. Great Northern Life Ins. Co., 253 Mich. 351, 235 N.W. 180.
The cases just cited are clearly distinguishable from the case at bar on the facts and issues presented.
In the Borglund case the schedule contained a provision for loss of "either foot." The insured sustained a loss of a leg. The same situation existed in the Davies case. In the Nelson case the schedule contained a provision for the loss of a hand. There the insured sustained a loss of the arm. In all three cases the policy contained additional coverage for total disability.
In neither case did the court permit additional recovery under the schedule coverage because of the loss of the limb. Recovery was allowed under the total disability provision. Had the appellant in this case contracted for total disability coverage as permitted by "Coverage T" of the policy the cases cited would be in point.
Since the appellant contracted for no coverage except death or, as material here, the loss of a foot, there can be no additional allowance for the loss of a leg. The enumerated loss does not vary with the distance above the ankle where the severance occurred.
We find nothing in the record to warrant or permit a reversal of the trial court's judgment. Therefore such judgment must be affirmed and it is so ordered.