Test For Disability Coverage

Fort Worth insurance attorneys who handle disability insurance claims need to know about this case. It is styled Occidental Life Insurance Co. v. Duncan. The opinion was issued by the San Antonio Court of Appeals in 1966.
Here is some relevant information.
Duncan was engaged in the selling of labels as an independent contractor on a commission basis. The company he represents manufactures labels and Duncan sells them, generally to canners. He has been in the label selling business for some twenty years. He was in an airplane accident on October 25, 1957, and was rather severely injured, Occidental paid him for total disability from the time of his accident until September, 1963, when it stopped payment. This suit by Duncan followed.
Duncan was injured in his back, right knee and right foot. He was in the hospital for five months and thereafter confined to his home for some time. He still has pain in his back but has learned to live with it, his right knee is somewhat recovered. The problem he has now is with his right foot. The joints in the metatarsal section are fused, the pressure causes the joints in his foot to separate, and he wears a brace with a steel plate under his foot to relieve some of the pressure. Motion in that area of his goot causes pain. His right ankle is shorter and completely stiff. The ankle is solid bone. He cannot walk up slopes; he once fell trying to negotate a slope in Houston, a year and a half ago, calling on a customer. It caused a brain concussion. He has had numerous other falls, averaging one a month. He cannot negotiate rough terrain, wet ground, snow or ice. Uneven gravel surfaces are hard for him to walk on. It is difficult for him to get into some of the plants that have slopes. Before the accident he would run and catch trains, from time to time; now he cannot run. Prior to his accident he had a total of one hundred and ten accounts that he had sold at one time or another; he now has only nineteen of these accounts remaining. He cannot follow through with his accounts because of his limited ability to travel long distances.
Before his injury he often drove his automobile 50,000 miles per year, and traveled a total of about 100,000 miles. Now he is unable to drive more than from 6,000 to 10,000 miles per year. A great deal of traveling is necessary in his business. The amount of gross income he had from the company he represented during the years listed below, the amount of his expenses and the amount of income remaining age as follows:
Net Before Sick Year Gross Expenses Pay Deductions
1954 $23,935.48 $15,309.58 $8,646.90 1955 $18,799.87 $16,095.51 $2,704.36 1956 $19,501.31 $16,135.66 $3,365.65 1957 $22,070.17 $16,215.82 $5,854.35 1958 $19,711.24 $5,335.39 $14,375.85 1959 $13,159.71 $1,771.93 $11,387.78 1960 $14,987.26 $1,408.62 $13,578.64 1961 $13,657.82 $5,385.21 $8,272.61 1962 $16,128.66 $6,828.48 $9,300.18 1963 $18,307.07 $12,070.63 $6,236.44 1964 $17,100.00 $10,000.00 $7,100.00 ½ of 1965 $4,726.00 The accounts that he developed in 1955, 1956 and 1957 paid off in income in 1958, 1949, 1960, and subsequent years. He has been unable to establish major accounts since the accident.
Occidental’s first point is that the trial court erred in refusing to grant Occidental’s motion for instructed verdict and motion for judgment non obstante veredicto because there is no evidence to support the finding of the jury that Duncan was totally disabled continuously from September, 1963, to July, 1965. The court overruled this point stating it is not necessary that Duncan be immobile, bedridden or totally unable to work before he can recover under the policies herein involved. The test is, would a reasonably prudent person in Duncan’s condition in the exercise of ordinary care engage in his business.
This previous sentence is the key to handling these types of cases.

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