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Cox v. Progressive Casualty Ins. Co. (3/4/94), 869 P 2d 467
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL V. COX, )
) Supreme Court No. S-5372
) Superior Court No.
Appellant, ) 3AN-91-00945 CI
v. ) O P I N I O N
PROGRESSIVE CASUALTY )
INSURANCE COMPANY, )
) [No. 4061 - March 4, 1994]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Joan M. Katz, Judge.
Appearances: Wm. Grant Callow, Law
Offices of Wm. Grant Callow, P.C., Anchorage,
and Patrick G. Ross, Law Office of Patrick G.
Ross, Anchorage, for Appellant. Robert L.
Griffin, Mason & Griffin, Anchorage, for
Before: Moore, Chief Justice,
Rabinowitz, Matthews, and Compton, Justices.
[Burke, Justice, not participating].
MOORE, Chief Justice.
This case arises out of a motorcycle accident that
occurred in July 1989. The issue presented before this Court
concerns the interpretation of the phrase "immediate medical
treatment" in a motorcycle liability insurance policy. The
insurer argues that "immediate medical treatment" means only
"first aid type treatment immediately in time." The accident
victim, a third-party beneficiary, interprets the phrase to cover
"all the expenses incurred for medical treatment required by
others who the insured injures while operating his motorcycle."
The superior court agreed with the insurer. We now reverse and
remand with instructions.
FACTS AND PROCEEDINGS
In July 1989, while driving a motorcycle in Anchorage,
Daniel Cox was struck by another motorcyclist, Joe Egemo. Cox
sustained numerous injuries, including a closed head injury, as
well as fractures of the left leg, the left elbow, and a rib. He
was transported from the scene of the accident to the hospital,
where he underwent surgery the same day for external fixation of
the left leg fracture. Four days later, he underwent a second
surgery on the leg utilizing a bone graft from his iliac crest.
Twelve days later, Cox underwent surgery a third time to remove
and replace one of the external fixation pins. He was discharged
from the hospital eighteen days after the accident.
In October 1989, Cox was rehospitalized for removal of
the external fixation device and for casting of the left leg.
Physical therapy and numerous outpatient visits followed. In
September 1990, Cox was again hospitalized for additional
internal fixation and an additional iliac graft. His final
hospitalization from the accident occurred in March 1991, when he
was admitted for repair of a pseudarthrosis and for more internal
fixation. Cox incurred medical bills in excess of $100,000 as a
result of the accident.
At the time of the accident, Egemo was insured by
Progressive Insurance Company. Egemo's policy provided liability
coverage for bodily injury in the amount of $50,000 per person
and $100,000 per occurrence. Progressive paid Cox $50,000 for
his personal injuries and settled Cox's claim for damage to his
motorcycle. Egemo's policy further provided:
In addition to our limit of liability,
we will pay on behalf of a covered person:
. . .
5. Expenses incurred for immediate
medical treatment required by others you
injure with your cycle except for passengers
on your cycle.
Cox moved for a declaratory judgment, asking the
superior court to resolve the meaning of "immediate medical
treatment." Following discovery, Cox and Progressive filed
cross-motions for summary judgment on this issue. The superior
that the language in [Progressive's]
policy of insurance obliging [Progressive] to
pay "immediate medical care"[sic] obligates
[Progressive] to pay any first-aid expenses
incurred by [Cox] up to but excluding [Cox's]
admission into Humana Hospital on July 9,
Cox now appeals.
Cox argues that the policy provides coverage for all
treatment he required as a result of his injuries. Progressive
responds by arguing that the superior court was correct in
holding that "immediate medical treatment"in its policy was
limited to the first aid care administered to Cox prior to his
admission into the hospital. We conclude that both of these
interpretations are erroneous.1 Instead, we hold that the
language found in this policy provides coverage for all medical
care up until that point where treatment becomes recuperative or
rehabilitative in nature. See 8A John A. Appleman, Insurance Law
and Practice 4901, at 222 (1981) ("In determining what is
immediate surgical relief, it has been held that the chain of
causation is broken when such relief begins to partake of the
character of recuperative medical treatment . . . .").
This interpretation of the policy language is
consistent with case law from other jurisdictions construing
comparable provisions. For example, in Alsam Holding Co. v.
Consolidated Taxpayers' Mutual Insurance Co., 4 N.Y.S.2d 498, 510-
13 (Mun. Ct. 1938), the New York Municipal Court interpreted a
similar clause in a landlord's liability policy. The clause
prohibited an insured from incurring any expense other than for
"immediate surgical relief"except at the insured's own cost. In
Alsam Holding, an elderly tenant tripped and fell, breaking his
femur. Id. at 503. The insured landlord assisted the man to his
bed, where he remained overnight. Id. The next day, a doctor
examined him and found him to be in shock. Id. He was given
bedside X-rays, then removed to a hospital. Id. In the
hospital, he was placed in traction for four days before the
doctors were able to operate. Id. After the operation, he
remained in the hospital for treatment for more than two months.
Id. at 504.
The court held that the "immediate surgical relief"
clause authorized the insured to compensate an accident victim
for all of the medical expenses incurred until the relief
"beg[an] to partake of recuperative medical treatment." Id. at
512. Thus, the court concluded that the insurer was obligated to
pay for all of the medical costs incurred until the patient was
able to move about on crutches, one month after his operation.
In Laidlaw v. Hartford Accident & Indemnity Co., 173
N.E. 557 (N.Y. 1930), the New York Court of Appeals followed a
similar approach. In Laidlaw, the insured struck a four and one-
half year old boy with his automobile. Id. at 558. The insured
was without fault in the accident. Id. By the terms of the
policy the insurer agreed "to pay for such immediate medical or
surgical aid as was imperative at the time of the accident." Id.
The court held that under this clause, the insurer was
obligated to pay for the victim's skull operation the day after
the accident and for his two week hospital stay. Id. at 559.
The court concluded, however, that the clause did not require the
insurer to cover expenses incurred for nursing the child after he
left the hospital. Id.
Other jurisdictions have reached similar conclusions.
See generally 8A John A. Appleman, Insurance Law and Practice
4901 (1981), and cases cited therein. For example, in Employers'
Liability Assurance Corp. v. Manget Bros., 165 S.E. 770 (Ga. App.
1932), an automobile policy authorized the insured to provide
"such immediate medical or surgical relief as may be imperative
at the time any such injuries are sustained." Id. at 772. The
Georgia Court of Appeals concluded that this language covered
hospitalization and nursing expenses for the few days the
accident victim remained in the hospital prior to his death. Id.
Likewise, in Employers' Liability Assurance Corp. v.
Light, Heat & Power Co., 63 N.E. 54 (Ind. App. 1902), the policy
at issue authorized the insured employer to render "immediate
medical assistance"at the insurer's expense. Id. at 55-56. The
court interpreted this provision to require the insurer to pay
"for necessary medical attention rendered within a reasonable
time after the accident, and not for any subsequent services."
Id. The court held that coverage extended to five weeks of two
to four doctor's visits per day, "continuous"service for the
next three weeks, and periodic visits thereafter. Id.
As stated above, we conclude that the disputed
provision at issue here covers all medical care up until that
point where treatment becomes recuperative or rehabilitative in
nature. We recognize, however, that the terms "recuperative"and
"rehabilitative"are not self-defining. The extent of coverage
under such a provision is necessarily dependent on the particular
circumstances of any given case. Whether medical care is
recuperative or rehabilitative in nature and thus outside the
scope of coverage is a fact-based inquiry; a strict bright-line
test is therefore inappropriate. See, e.g., Laidlaw, 173 N.E. at
559 ("[The] intent and scope [of the clause] must depend on the
nature and circumstances of the accident, in the absence of more
Nonetheless, we do offer the following general
guidelines to assist the trial courts in construing the phrase
"immediate medical treatment." We are satisfied that this
language clearly contemplates on-site first aid treatment and
emergency room-type care. We also find that a policy such as the
one at issue here generally will cover any medical treatment,
directly attributable to the insured event and without any
intervening cause, reasonably believed necessary to prevent loss
of life, serious impairment to body functions, serious or
permanent dysfunction of any body part or organ, or any other
serious medical consequence.
In the present case, the determination of when Cox's
treatment turned from "immediate medical treatment" to
recuperative or rehabilitative medical treatment is a question of
fact, properly left to the superior court. We reverse the
superior court's determination that this policy language limits
coverage to first aid care administered prior to hospital
admission and remand to the superior court for proceedings
consistent with the standard set forth in this opinion.
REVERSED AND REMANDED.
1 The interpretation of contract language is a question
of law, subject to de novo review by this Court. Jackson v.
Barbero, 776 P.2d 786, 788 (Alaska 1989); Langdon v. Champion,
745 P.2d 1371, 1372 n.2 (Alaska 1987). This Court interprets
insurance contracts by looking to the language of the disputed
policy provisions, the language of other provisions of the
policy, and to relevant extrinsic evidence. Stordahl v.
Government Employees Ins. Co., 564 P.2d 63, 66 (Alaska 1977). In
addition, we also refer to case law interpreting similar