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Morinelli v. Provident Life And Accident Insurance Co.8/22/2000
FOR PUBLICATION
9:00 a.m.
Updated Copy October 13, 2000
Plaintiff Joseph A. Morinelli appeals as of right the judgment entered following a jury trial in this action to enforce two disability insurance policies. Plaintiff Perfusion Associates of Michigan, Inc. (PAM), appeals as of right the trial court's order granting summary disposition in favor of defendant Provident Life and Accident Insurance Company. We reverse in part, affirm in part, and remand.
I.
Plaintiff Morinelli is a perfusionist, which is the individual who operates the heart-lung machine, as well as other equipment, to keep a patient alive during open-heart surgery. In April 1990, Morinelli and his partners formed PAM. One year later, they purchased two policies of insurance from defendant: a disability income policy, which personally insured Morinelli in the event he suffered a loss resulting from injury or sickness, and a business buy-out expense disability policy, which insured PAM for any expenses attributable to a buy-sell agreement between the corporation and Morinelli if he ever became totally disabled.
Under the disability income policy, "total disability" is defined as follows:
Total Disability and totally disabled means that due to Injuries or Sickness, the Insured:
1. is not able to perform the substantial and material duties of his/her occupation; and
2. is receiving care by a Physician which is appropriate for the condition causing the disability. We will waive this requirement when continued care would be of no benefit to the Insured.
In July 1993, Dr. Eugene Calabrese examined Morinelli and diagnosed him as having diabetes. Dr. Calabrese prescribed Glucotrol, an oral medication designed to reduce blood sugar levels, a diet, and exercise. Over time, the Glucotrol was adjusted to the maximum recommended dosage, and, by September 1994, Morinelli needed insulin injections to control the diabetes. At the time, Morinelli was experiencing fatigue, forgetfulness, and frequent urination, all of which compromised his ability to perform as a perfusionist.
On October 24, 1994, Morinelli filed a disability claim, which was supported by Dr. Calabrese's opinion that he was totally disabled. Defendant began paying benefits under its disability income policy, but later terminated the payments, asserting (1) that Morinelli's diabetes had first manifested itself before the issuance of the insurance policies, and (2) that diabetes did not appear to impair his ability to perform the material and substantial duties of his occupation in that the claim was based on an assumption that a diabetic incident would arise and did not allege that Morinelli was unable to perform his duties absent such an incident. The plaintiffs subsequently filed this action asserting breach of contract, as well as other claims not germane to this appeal.
The trial court granted defendant's motion for summary disposition, which sought to rescind the buy-out expense disability policy because, contrary to representations in the application for insurance, no written agreement existed between PAM, or its principals, and Morinelli. The court found that PAM failed to meet a condition precedent for the payment of benefits under the terms of the policy in that there was no buy-sell agreement in place until after either of the plaintiffs had filed a claim.
At trial, defendant presented evidence concerning the quality of the treatment rendered by Dr. Calabrese. Standard of care testimony was admitted over Morinelli's objection. As specified on the verdict form, the jury found that Morinelli "suffered from a sickne
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