ROBERT S. SHAW vs. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY.

CUTTER, J. Dr. Shaw in this action of contract seeks to recover on two occupational insurance policies issued by the defendant (the insurer). A Superior Court judge, sitting without a jury, made findings (a) for Dr. Shaw on count 1, with respect to a 1954 policy, for $1,400, with interest, and (b) for the insurer on count 2 with respect to a 1963 policy. Dr. Shaw (by an outline bill of exceptions) presents exceptions to the denial of certain requests for rulings and to the allowance of rulings requested by the insurer.

Dr. Shaw was a vascular surgeon at Massachusetts General Hospital (M.G.H.). He took out an accident, health, and disability policy with the insurer in 1954 (the 1954 policy) and another dated September 3, 1963 (the 1963 policy). In pertinent respects, the two policies appear to

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be essentially similar. [Note 1] The application for the 1963 policy contained questions and answers as follows: Question No. 11. "Have you been disabled by . . . illness or received medical attention or advice during the past five years?" Answer -- "No." Question No. 12. "Are you now in sound condition physically and mentally?" Answer -- "Yes." Part VI, sec. A, of each policy (relating to attendance by a physician) was relied on by the insurer, and that portion of the 1963 policy is quoted in the margin. [Note 2] The 1963 policy contained a "time limit on certain defenses." [Note 3]

The trial judge made the following voluntary findings, warranted by the evidence, "Dr. Shaw, in the spring of 1963, had consulted for psychotherapy a Dr. Vanderpol with regard to . . . marital difficulties. On May 3, 1964, Dr. Shaw was voluntarily admitted to the McLean Hospital [McLean]. . . . The admission diagnosis at . . . McLean . . . was, `Psychoneurotic depressive reaction, moderately severe, passive aggressive character disorder.' He was released [by Probate Court order, apparently because he was not so dangerously ill as properly to be held against his will] . . . August 6, 1964, at which time the discharge diagnosis was [in part], `Schizophrenic reaction, paranoid type, chronic. Unchanged'. . . . Dr. Shaw was in fact

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mentally ill in . . . 1963 at the time he signed the [insurance] application and had been mentally ill for some time in the past, although he had been able to control his mental illness so it did not begin to interfere with his work until sometime in 1964. His mental illness, however, did manifest itself in . . . problems with his wife. . . . [H]is schizophrenia had started long before 1963 but . . . it had been controlled and was not readily apparent. . . . [I]n answering Questions 11 and 12 . . . Dr. Shaw, to his own mind, answered . . . truthfully. He never believed, even after the hospitalization at McLean, that he was or had been mentally ill."

"[U]pon his release . . . [from McLean, Dr. Shaw] was advised by members of the . . . [M.G.H.] staff and other doctor friends . . . to seek psychiatric treatment. This he steadfastly refused to do, being of the opinion that the psychiatrists who diagnosed him as mentally ill were in error and that he was in no need of treatment. . . . [H]e was mentally ill [however] during and following his hospitalization . . . and . . . his . . . illness continued at least until July of 1966. . . . [A]fter his release from McLean, he was not allowed to do surgery at . . . [M.G.H.] and did not perform any of the duties of either a surgeon or a physician. Most of Dr. Shaw's time and efforts in this period were spent in attempting to get the opinions of the psychiatrists at McLean Hospital overruled . . . by the [M.G.H.] staff. . . . [F]rom September 23, 1964 to November 1, 1964, Dr. Shaw was employed by the Army Air Force reviewing research studies, for which he received more than nominal compensation. . . . [D]uring this period he was performing duties encompassed in the general field of medicine, but not that of `surgery'" [Note 4] (emphasis supplied).

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Other parts of the trial judge's findings, rulings, and order in large measure deal with requests for rulings. [Note 5] These rulings are discussed below.

1. The judge ruled that two provisions in the 1963 policy, viz. (a) that the "policy is issued in consideration of the statements in the application" (fn. 1, supra), and (b) the provision (fn. 3, supra) under the heading "Policy Provisions [Note 6] Time Limit on Certain Defenses," constituted "the equivalent of making the statements in the application conditions precedent to the [effectiveness of the] policy" and "that such statements, being false, although not made fraudulently and with knowledge of their falsity" barred recovery on the 1963 policy. Dr. Shaw saved exceptions to the action of the judge in ruling, as requested by the insurer, in this manner. [Note 7]

Ordinarily, truthful "answers to questions in an original application for insurance are either representations or warranties and not conditions precedent." See Sullivan v. John Hancock Mut. Life Ins. Co. 342 Mass. 649, 653-654. Interpretation of this written contract is a matter of law for the court. See Tri-City Concrete Co. Inc. v. A. L. A.

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Constr. Co. 343 Mass. 425, 427; Quintin Vespa Co. Inc. v. Construction Serv. Co. 343 Mass. 547, 551; Charles L. Hazelton & Son, Inc. v. Teel, 349 Mass. 617, 621. As we read this policy (and we are in as good a position as the trial judge to interpret the contract), truthful statements in the application are not expressly made conditions precedent to the effectiveness of the contract nor is the policy to become void or voidable if the statements are untrue. Cf. Faris v. Travelers Indem. Co. 278 Mass. 204, 208; Lopardi v. John Hancock Mut. Life Ins. Co. 289 Mass. 492, 494-497; Paratore v. John Hancock Mut. Life Ins. Co. 335 Mass. 632, 634-635. The trial judge misinstructed himself in ruling as he did.

2. General Laws c. 175, Section 186, reads: "No . . . misrepresentation or warranty made in the negotiation of a policy . . . by the insured . . . shall be deemed material or . . . avoid the policy or prevent its attaching unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter misrepresented or made a warranty increased the risk of loss." This section applies only to representations and warranties and "does not apply to provisions in a policy which . . . are made conditions precedent to the duty of performance on the part of the insurance company." See Krause v. Equitable Life Ins. Co. 333 Mass. 200, 203-204; Charles, Henry & Crowley Co. Inc. v. Home Ins. Co. 349 Mass. 723, 725-726. We thus must consider whether the statements in the application for the 1963 policy could have been found to pass the dual test of Section 186.

Dr. Shaw's negative answer to the question whether he had "received medical attention or advice during the past five years" could be found not to have been true. He, as the judge found, "in the spring of 1963 . . . consulted for psychotherapy a Dr. Vanderpol with regard to . . . marital difficulties." Despite the judge's finding that "Dr. Shaw, to his own mind, answered these questions truthfully" because he "never believed . . . he was . . . mentally ill," he had received this psychotherapy from a medical doctor.

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We need not decide whether under Section 186, because of Dr. Shaw's subjective belief in the truthfulness of his answer, there was no "actual intent to deceive." The negative answer could be found to have been a misrepresentation which "increased the risk of loss" within Section 186. See Pahigian v. Manufacturers' Life Ins. Co. 349 Mass. 78, 86-87. If the consultations with Dr. Vanderpol had been disclosed, inquiry by the insurer might have revealed Dr. Shaw's mental condition.

Whether the risk of loss indeed is increased "is commonly a question of fact." See Davidson v. Massachusetts Cas. Ins. Co. 325 Mass. 115, 119. Psychotherapy at the hands of a medical doctor could be found to constitute medical attention, [Note 8] although perhaps even a doctor might regard the term "medical attention or advice" as encompassing only physical ailments and as not extending to psychotherapy. Any ambiguity in the question, as applied to particular facts, is to be construed (as in the case of a policy provision) against the insurer. See Palmer v. Pawtucket Mut. Ins. Co. 352 Mass. 304, 306.

The judge's finding, that Dr. Shaw "never believed . . . that he was or had been mentally ill," leads us to conclude (as apparently the judge did) that his answer to question 12 might be found to be an honest expression of opinion which would pass the tests of Section 186. See Davidson v. Massachusetts Cas. Ins. Co. 325 Mass. 115, 119-120; annotations, 26 A. L. R. 3d 1061, 30 A. L. R. 3d 389.

We think that the trial judge has not passed clearly upon the issues of fact concerning whether the answers to questions 11 and 12 were misrepresentations which increased the risk of loss within the dual test of Section 186. These issues arising under count 2 must be dealt with by the trier of the facts when the case is reheard.

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3. Applicable to both the 1954 and the 1963 policies are issues with respect to Part VI, Sec. A, of each policy (see fn. 2, supra). That provision requires that "the Insured be regularly attended by a legally qualified physician . . . other than himself." The judge's findings and the evidence suggest that Dr. Shaw, even though he did not think that he needed treatment or that he was mentally ill, was getting all the medical treatment to which his numerous medical colleagues and friends could persuade him to submit. A major symptom of his illness was his inability to recognize that he was ill. The questions thus arise (a) whether, in the circumstances, he could be regarded as excused from being "regularly attended" by a physician (as Dr. Shaw requested the judge to rule), and (b) whether the essentially undisputed facts, concerning the medical attention given to him, may be viewed as compliance with the provision.

It is argued in effect that the provision for attendance by a physician is ambiguous, that it should not be regarded as a condition of the policy, and that it should be construed against the insurer. The insurer relies upon the somewhat harsh construction of a similar policy provision in Lustenberger v. Boston Cas. Co. 300 Mass. 130. We are not disposed to extend that decision in any degree and recognize that it runs counter to persuasive authority elsewhere. Cf. Dixon v. Pacific Mut. Life Ins. Co. 268 F. 2d 812, 816 (2d Cir.), cert. den. 361 U.S. 948. [Note 9] Nevertheless, we think this provision of the policies sufficiently clearly requires an insured like Dr. Shaw, who claims to be disabled by mental illness, to consult and to be attended by a doctor, even in these circumstances. He is not shown to have been incapable of understanding the policy provision. He knew that others thought him ill. If he wished to collect payments

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under the policies, he should have submitted to medical attendance even if he thought it unnecessary.

To be sure, Dr. Shaw did talk with doctors, but he could be found not to have entered into any patient-doctor relationship with any of them. They tried to help him but he would not permit them to do so. Even though his belief that he was not ill may have been a manifestation of the illness causing his disability, we see no basis for concluding that compliance with the provision was excused, at least while possibility existed that medical attendance might be beneficial. The judge did not err in refusing to rule that the evidence permitted a finding that compliance with the provision for "regular attendance by a physician was excused," or in finding on the evidence that there was no such compliance except during the period of Dr. Shaw's stay at McLean. Under both the 1954 and the 1963 policies, the provision for medical attendance, by itself, does not preclude recovery by Dr. Shaw for the period during which he was at McLean.

4. The exceptions with respect to count 1 are overruled and judgment is to enter for Dr. Shaw according to the trial judge's finding on that count. The exceptions dealt with in parts 1 and 2 of this opinion as to count 2 are sustained.

So ordered.