{
  "id": 2690622,
  "name": "William S. Kleinman, Plaintiff-Appellant, v. Commercial Insurance Company of Newark, N.J., Defendant-Appellee",
  "name_abbreviation": "Kleinman v. Commercial Insurance Co. of Newark",
  "decision_date": "1974-05-20",
  "docket_number": "No. 59302",
  "first_page": "1004",
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  "last_updated": "2023-07-14T16:53:04.796688+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "William S. Kleinman, Plaintiff-Appellant, v. Commercial Insurance Company of Newark, N.J., Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE GOLDBERG\ndelivered the opinion of the court:\nThis appeal presents a question involving health and accident insurance issued under the auspices of a Chicago Bar Association disability program. William S. Kleinman (plaintiff), a distinguished member of the Bar for many years, brought suit against Commercial Insurance Company of Newark, New Jersey, (defendant) and Parker, Aleshire & Company, a corporation, agent of defendant. Summary judgment was entered in favor of defendant and plaintiff has appealed.\nPlaintiff\u2019s complaint consisted of four counts. Count I sought declaratory relief and recovery from defendant of weekly disability benefits which allegedly accrued and were unpaid after September 15, 1971. Count III alleged an anticipatory breach of the insurance contract by defendant so that plaintiff was entitled to recover all remaining disability payments in a lump sum. Counts II and IV sought damages from Parker, Aleshire & Company as defendant\u2019s agent. We need not concern ourselves with Counts II and IV against the agent. After the trial court had granted summary judgment in favor of defendant, there was a trial on the issues between plaintiff and the agent which terminated in favor of the agent. Plaintiff-has expressly abstained from seeking review of this order.\nThe record shows that the relationship between the parties is a typical group insurance situation. Defendant has issued a Group Disability Policy insuring members of the Chicago Bar Association. Plaintiff and other insured persons received certificates of insurance. A copy of plaintiff\u2019s certificate is appended to his complaint. It certifies that plaintiff \u201cis insured under and subject to all conditions and limitations of said Group Disability Policy * * * for loss resulting from injury or caused by sickness, in the manner and to the extent therein provided.\u201d It provides also that if the holder thereof should be wholly and continuously disabled that a weekly indemnity would be paid \u201ccommencing with the eighth day of disability, or from the first day of hospital confinement, whichever shall occur first, but not exceeding 416 weeks nor beyond the 73rd Anniversary of the Covered Member\u2019s date of birth whichever occurs first.\u201d\nThere is also appended to plaintiff\u2019s complaint a letter, dated September 12, 1961, from defendant\u2019s agent addressed to plaintiff. This letter indicates the terms and conditions of a modification of the disability insurance program which was under consideration at that time. Prior to September 1,1961, plaintiff was covered under two insurance contracts. One was issued by defendant and provided disability indemnity payments for 5 years in cases of house confinement. The other contract, underwritten by Bankers\u2019 Security Life, would extend these disability benefits for an additional period. Defendant then offered a new contract with increased benefits as a substitute for the Bankers\u2019 Life Policy. The choice made by each policyholder was evidenced by a so-called enrollment application. The policyholder could elect either of two alternatives. Plaintiff elected alternative B. A photocopy of this enrollment application signed by plaintiff demonstrates it to be in words and figures as follows:\n\u201cCommercial Insurance Company of Newark, N.J.\nGentlemen:\nI would like the following coverage which you offer under the Chicago Bar Association Disability Program:\n\u25a1 Alternative A One Contract\n[x] Alternative B Two Contracts\nLifetime Accident and 8 year Sickness Benefit.\nRetain Present Basic Contract and a New Contract with Lifetime Accident & 8 years Sickness Benefits payable after 6 months.\nI understand that the insurance hereby requested will not be effective unless I am regularly attending all of the usual duties of my occupation on the effective date of the Certificate.\nAugust 29, 1961\nDate\n/s/ WILLIAM S. KLEINMAN\nSignature\u201d\nDefendant answered the complaint. The important allegation thereof is the affirmative statement that the 73d anniversary of plaintiff\u2019s date of birth occurred on September 15, 1971. It is undisputed by the parties that plaintiff did actually become disabled from sickness under the terms of the policy beginning December 10, 1964, and that plaintiff, born September 15, 1898, became 73 years of age on September 15, 1971. Defendant has paid all indemnities due until the 73d anniversary of plaintiff\u2019s birth.\nPlaintiff filed a motion for summary judgment under Counts I and III. Defendant filed a motion for summary judgment in its favor. There is no disputed question of material facts between these parties. The sole issue presented here is one of law as to the effect of the so-called enrollment application on the rights of the parties with reference to the master policy of insurance and the certificate thereof held by plaintiff.\nIn this court, plaintiff contends that the enrollment application is actually a rider. Based upon this assumption, plaintiff urges the familiar and established rule of law that, where an insurance policy contains a rider with provisions more favorable to the insured than the terms of the policy, the rider controls the rights of the parties. On the contrary, defendant urges that the enrollment application was purely and simply an application, as distinguished from a rider or a new contract; there is no conflict between the policy and the application form but the contract of insurance merely provides a limitation upon which the application was silent and this limitation required termination of disability benefits upon the 73d anniversary of plaintiff\u2019s birth.\nA careful study of all of the matters before us leads inevitably to the conclusion that defendant\u2019s position is well taken. We do not have a situation in which policy language is ambiguous so as to require us to resort to canons of construction. (Illinois National Insurance Co. v. Trainer, 1 Ill.App.3d 34, 36, 37, 272 N.E.2d 58.) We have instead clear-cut language which impels us to the indicated result. Plaintiff s certificate expressly recites that he \u201cis insured under and subject to all conditions and limitations of said Group Disability Policy.\u201d The certificate itself expressly provides that disability benefits will not be paid \u201cbeyond the 73d Anniversary of the Covered Member\u2019s date of birth.\u201d The enrollment application signed by plaintiff constitutes an offer to augment the insurance contract as regards the number of weeks of sickness indemnity and amount thereof, but it does not purport to affect or modify in any regard the underlying and pre-existing condition that these payments are to terminate upon the 73d anniversary of plaintiffs birth.\nThe language of the master policy, as reproduced in plaintiffs certificate, provides that it \u201cconstitutes the entire contract of insurance.\u201d We note also a rider appended to plaintiffs certificate signed by defendant\u2019s agent as of September 1, 1961, carrying out the conditions of the enrollment application signed by plaintiff and providing specifically, \u201c[njothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, agreements or limitations of the undermentioned Policy other than as above stated.\u201d\nThere are many instances in which attempts have been made to modify the clear, unambiguous and binding provisions of insurance contracts by correspondence, brochures and even by subsequent representations. A number of cases involving this type of situation are analyzed in a recent opinion of this court (Gross v. University of Chicago, 14 Ill.App.3d 326, 302 N.E.2d 444, leave to appeal denied November 29, 1973.) In the case before us, as we did in Gross, we are obliged to take the position that the provisions of the agreement between the parties concerning the limitation upon the payments for sickness indemnity \u201cwere inserted deliberately and for a purpose, and we may not disregard them.\u201d (14 Ill. App.3d at 338.) As contended by defendant, other decisions lead to the same result. See Fuller v. Standard Oil Co., 1 Ill.App.3d 799, 274 N.E.2d 865.\nIn plaintiffs reply brief, reference is made to a letter from defendant\u2019s agent to plaintiffs wife, dated January 24, 1966, enclosing drafts representing certain disability payments. The reply called our attention to language in this letter, \u201cthis indemnity is payable for a period of 8 years and house confinement is never required\u201d and attempted to postulate an argument of \u201cestoppel and waiver\u201d thereon. Defendant has made a motion to strike, this portion of the reply on the ground that this point was not raised in plaintiffs initial brief. In view of the result reached after trial of the issues involving defendant\u2019s agent, no further consideration of this matter is required. Defendant\u2019s motion to strike portions of plaintiffs reply, taken with the case, is accordingly denied.\nJudgment affirmed.\nBURKE and HALLETT, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE GOLDBERG"
      }
    ],
    "attorneys": [
      "Harry G. Fins, of Chicago, for appellant.",
      "Clausen, Hirsh, Miller & Gorman, of Chicago (James T. Ferrini, Frank L. Schneider, and William J. Sneckenberg, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "William S. Kleinman, Plaintiff-Appellant, v. Commercial Insurance Company of Newark, N.J., Defendant-Appellee.\n(No. 59302;\nFirst District (1st Division)\nMay 20, 1974\nHarry G. Fins, of Chicago, for appellant.\nClausen, Hirsh, Miller & Gorman, of Chicago (James T. Ferrini, Frank L. Schneider, and William J. Sneckenberg, of counsel), for appellee."
  },
  "file_name": "1004-01",
  "first_page_order": 1028,
  "last_page_order": 1032
}