disability clause in South Carolina

2017I disagree with the majority that by holding that evidence of "gainful employment" is insufficient, and by refusing to identify what type of evidence would be germane, we may deny the respondents the opportunity on 4 I note that both Wigfall v. Tidelands Utils., Inc., 354 S.C. 100 , 580 S.E.2d 100 (2003) and Stephenson v. Rice Services, Inc., 323 S.C. 113 , 473 S.E.2d 699 (1996) were decided before the rebuttable presumption was added, while Watson was decided under the current version of the statute.

2017I disagree with the majority that by holding that evidence of "gainful employment" is insufficient, and by refusing to identify what type of evidence would be germane, we may deny the respondents the opportunity on 4 I note that both Wigfall v. Tidelands Utils., Inc., 354 S.C. 100 , 580 S.E.2d 100 (2003) and Stephenson v. Rice Services, Inc., 323 S.C. 113 , 473 S.E.2d 699 (1996) were decided before the rebuttable presumption was added, while Watson was decided under the current version of the statute.

2017I disagree with the majority that by holding that evidence of "gainful employment" is insufficient, and by refusing to identify what type of evidence would be germane, we may deny the respondents the opportunity on 4 I note that both Wigfall v. Tidelands Utils., Inc., 354 S.C. 100 , 580 S.E.2d 100 (2003) and Stephenson v. Rice Services, Inc., 323 S.C. 113 , 473 S.E.2d 699 (1996) were decided before the rebuttable presumption was added, while Watson was decided under the current version of the statute.

2017I disagree with the majority that by holding that evidence of "gainful employment" is insufficient, and by refusing to identify what type of evidence would be germane, we may deny the respondents the opportunity on 4 I note that both Wigfall v. Tidelands Utils., Inc., 354 S.C. 100 , 580 S.E.2d 100 (2003) and Stephenson v. Rice Services, Inc., 323 S.C. 113 , 473 S.E.2d 699 (1996) were decided before the rebuttable presumption was added, while Watson was decided under the current version of the statute.

1953In construing a disability provision similar to the one involved in the instant case, this Court in Dunlap v. Maryland Casualty Co., 203 S. C. 1, 25 S. E. (2d) 881, 884 , 149 A. L.

1953In construing a disability provision similar to the one involved in the instant case, this Court in Dunlap v. Maryland Casualty Co. , 203 S.C. 1 , 25 S.E. (2d) 881, 884 , 149 A.L.R. 1 , said: "The clause `engage in any occupation or employment for wage or profit' should not be construed in the sense of any kind of occupation or employment, however *348 insignificant or small the remuneration might be.

1953It was held in Moyle v. Mutual Life Insurance Co. of N. Y., 201 S. C. 146, 21 S. E. (2d) 561, 566 , that where “the insured is unable to perform all of the material acts incident to the adequate prosecution of a business for which he has special training and has followed for many years, but is nevertheless enabled, by reason of new professional or business skills or experiences acquired by him, to perform the duties of a full time job in a new field for compensation reasonably comparable with the amount of compensation formerly earned by him,” he is not totally and permanently disabled within

1953It was held in Moyle v. Mutual Life Insurance Co. of N.Y. , 201 S.C. 146 , 21 S.E. (2d) 561, 566 , that where "the insured is unable to perform all of the material acts incident to the adequate prosecution of a business for which he has special training and has followed for many years, but is nevertheless enabled, by reason of new professional or business skills or experiences acquired by him, to perform the duties of a full time job in a new field for compensation reasonably comparable with the amount of compensation formerly earned by him," he is not totally and permanently disabled within t

1941Next cited is Mack v. Life & Casualty Insurance Co., 171 S. C., 350, 172 S. E., 305 , in which a verdict for actual and punitive damages was sustained.

1941Co. of *509 New York v. Drummond, 8 Cir., 111 F. (2d), 282, opinion filed May 2, 1940. [Italics added.] * * * “Under a disability clause such as that here in suit, we think there can be no doubt that the furnishing of proof of disability before age 60 is a condition precedent to liability on the part of the company for a waiver of premiums, and that the failure of the insured to furnish such proof before age 60 defeated his claim, regardless of the time when his disability, if any, occurred. [See and compare Birnbaum v. Mutual Life Insurance Co., 170 Misc., 83 , 9 N. Y.

1934Co., 158 S. C., 394, 155 S. E., 617, 618 , the disability clause of the policy provided that “upon due proof" of disability the company would “grant an endowment for the face value of the policy, under which no premiums will be required, payable in ten equal annual installments, the first installment to *258 be paid immediately upon receipt of due proof of any such disability or incapacity.” January 20, 1927, the insured became disabled.

1927In Perkins v. Insurance Co., 93 S. C., 88; 76 S. E., 29 (opinion by Mr. Justice Watts), the Court said: “ ‘The conditions annexed to a personal contract, like a policy of life insurance, must be performed according to the terms used, and the apparent intent of the parties, and are not satisfied by a performance cy pres.' 3 Steph.

1927The printed argument of counsel for the insurance company contains this statement: “For the purpose of this argument, it admits the mental derangement and total permanent disability of the insured within the meaning of the policy, and as construed by our Court of last resort in Brown v. Missouri State Life Insurance Co. (S. C.), 134 S. E., 224 .” The following facts therefore are not in issue : The policy was issued on June 5, 1920; the semiannual premiums were due on that anniversary and on December 5 of each year; the premiums were paid up to but not including June 5, 1923; that premium was

1927In Mid-Continent Insurance Co. v. Skye, 113 Okl., 184 ; 240 P., 630 , it is said (quoting syllabus): “In insurance policy, provision that, commencing with anniversary of policy next succeeding receipt of proof of disability, company would .on each anniversary waive payment of premium for ensuing year, term 'anniversary’ means yearly recurring date of policy, and benefit of waiver of premiums by reason of receipt of proof of permanent disability is postponed until next anniversary of policy succeeding receipt of such proof.” I think, therefore, that the defendant’s motion for a directed verdict

1927In Mid-Continent Insurance Co. v. Skye, 113 Okl., 184 ; 240 P., 630 , it is said (quoting syllabus): “In insurance policy, provision that, commencing with anniversary of policy next succeeding receipt of proof of disability, company would .on each anniversary waive payment of premium for ensuing year, term 'anniversary’ means yearly recurring date of policy, and benefit of waiver of premiums by reason of receipt of proof of permanent disability is postponed until next anniversary of policy succeeding receipt of such proof.” I think, therefore, that the defendant’s motion for a directed verdict