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Pearlmen v. Massachusetts Bonding & Ins. Co.

Court of Appeals of Indiana

November 15, 1955, Filed

No. 18,684

Opinion

 [*295]   [**55]  This was an action by appellant, a dentist, for indemnity under a Health and Accident Insurance Policy issued to him by appellee January 21, 1934.

Appellee's demurrer to appellant's fourth amended complaint was sustained. Appellant refused to plead further and judgment was rendered in favor of appellee. The error assigned here is that the trial court erred in sustaining said demurrer.

The complaint alleged [***2]  appellant was for a period of thirty-seven years engaged in the practice of his profession as a dentist; that appellee, on January 21, 1934, in consideration of the premium provided, executed  [*296]  and delivered its policy of insurance to appellant whereby it insured him against the effects "resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy solely through External, Violent and Accidental Means . . . . That if such injury alone shall within five days from date of the accident wholly and continuously disable plaintiff from performing any and every duty pertaining to his occupation, it (the defendant) will pay", etc.

The complaint then avers:

"4. On April 16, 1952, while said policy of insurance was in full force and effect, plaintiff's thumbs and index fingers became and were ulcerated and malignant, necessitating the amputation of a portion of his right thumb, and resulting in the total paralysis of his right index finger and partial paralysis of his left index finger. Such ulceration and malignancy resulted directly and exclusively of all other causes from a bodily injury sustained solely through External,  [***3]  Violent and Accidental Means, within the meaning of such terms as  [**56]  used in said insurance policy, to-wit, burns caused by plaintiff's accidental exposure to overdoses of X-ray while using an X-ray machine in the practice of his profession as a dentist. Plaintiff does not know the date or dates of such exposure to over-doses, or the extent thereof and therefore cannot allege the same. (Our emphasis). Said exposure to over-doses and the consequent X-ray burns which produced plaintiff's injury, as aforesaid, were unintentional, * unusual, unforseen and unexpected. (Appellant's emphasis). Plaintiff has used an X-ray machine in the practice of his said profession almost daily, until he became disabled, as stated hereinafter, for approximately thirty years, the exact number whereof he does not now remember.

"5. Said injury alone within five days from date of the accident, April 16, 1952, wholly and continuously disabled plaintiff from performing any and every duty pertaining to the practice of  [*297]  his profession as a dentist, and it will so wholly and continuously disable plaintiff, permanently."

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126 Ind. App. 294 *; 130 N.E.2d 54 **; 1955 Ind. App. LEXIS 202 ***

Pearlmen v. Massachusetts Bonding and Ins. Co.

Subsequent History:  [***1]  Rehearing Denied January 19, 1956. Transfer Denied March 13, 1956.

Prior History: From the Superior Court of Marion County, Room No. 2, Hezzie B. Pike, Judge.

Louis Henry Pearlmen, appellant, brought this action for indemnity under a Health and Accident Insurance Policy issued to him by appellee, Massachusetts Bonding and Insurance Company. Appellee's demurrer to appellant's complaint was sustained, appellant refused to plead further, and judgment was entered for appellee. Appellant appeals.

Disposition: Affirmed.

CORE TERMS

accidental, accidental means, disability, insurance policy, trial court, unexpected, bodily injury, unforseen, insured

Insurance Law, Disability Insurance, Benefit Requirements, Insurability, Life Insurance, Accidental Death, Intentional Acts, Accident & Accidental Means Definitions, General Overview