Kennedy v. Pilot Life Insurance Company

165 S.E.2d 676 (1969) 4 N.C. App. 77

Artis Leck KENNEDY
v.
PILOT LIFE INSURANCE COMPANY.

No. 6919SC36.

Court of Appeals of North Carolina.

February 26, 1969.

Ottway Burton, Asheboro, for plaintiff appellee.

Wharton, Ivey & Wharton, by Richard L. Wharton, Greensboro, for defendant appellant.

BROCK, Judge.

The sole question involved in this appeal centers upon an interpretation of that portion of the group insurance policy which reads: "[H]e shall be eligible for insurance hereunder on the day immediately following the completion of one month of continuous, active employment with the Policyholder."

Plaintiff contends that this means he is covered under the policy on the day immediately following the completion of thirty days of continuous active employment. He argues that he commenced work on 8 July and completed thirty days of employment on 6 August; and, therefore, under the terms of the policy, he is entitled to medical expense benefits for his son's hospitalization which began on 7 August.

Defendant contends that the above quoted portion of the policy means that plaintiff's coverage began on the day immediately following the completion of one calendar month of continuous active employment. Defendant argues that plaintiff commenced work on 8 July and completed one calendar month of employment on 7 August; and, therefore, under the terms of the policy, plaintiff would be entitled to medical expense benefits only for hospitalization which began on or after 8 August. Defendant argues that plaintiff's son's hospitalization began before he became covered under the policy and therefore defendant is not liable to plaintiff under the policy.

It seems that plaintiff contends there are three kinds of months: (1) a lunar month, (2) a calendar month, and (3) when neither lunar nor calendar is specified, a thirty-day month. Apparently the trial judge adopted this view.

A disposition of this case requires that we determine what period of time is intended, absent any explanation, when the word "month" is used in an insurance contract.

In North Carolina, when the word "month" is used in our General Statutes it is to be construed to mean a calendar month, unless otherwise expressed. G.S. § 12-3. In 1875 our Supreme Court stated: "We have not found in any modern case or any treatise on the law any definition of the word ``month' which makes it synonymous with thirty days. * * *" State v. Upchurch, 72 N.C. 146. In 1891 our Supreme Court, in ruling upon the time within which an action could be instituted under the terms of an insurance policy which provided that actions must be commenced within twelve months, stated: "Twelve months, in the absence of a legislative definition of the word ``month,' must be interpreted, according to the ordinary popular understanding, as meaning twelve calendar (not lunar) months." And the court went on to observe: "The courts of this country have very generally adopted a different rule of construction from that which obtained in England before the Revolution, because the popular sense of the word ``month' was in America a calendar, not a lunar, month." Muse v. London Assurance Co., 108 N.C. 240, 13 S.E. 94.

Not since 1853, in the case of Rives v. Guthrie, 46 N.C. 84, have we found any indication by the Supreme Court of North Carolina that the word "month" is to be taken as meaning anything other than a calendar month, except where it might be specified as some type of month. Indeed, five years later, with two of the members of the 1853 Court still sitting, the Court approved an instruction to the jury that the word "month" in a contract, without explanation or addition, meant a calendar month. Satterwhite v. Burwell, 51 N.C. 92.

At early common law the term "month" meant a lunar month of twenty-eight days, but in the United States the common law rule was followed in only the early days of the republic. In the United States the term "month" is now universally computed by the calendar, unless a contrary meaning is indicated by the statute or contract under construction. Also, the term "thirty days" and the term "one month" are not synonymous, although where the particular calendar month is composed of exactly thirty days the number of days involved happen to be the same. The word "month" has a clear and well-defined meaning, and refers to a particular time. Unless an intention to the contrary is expressed, it signifies a calendar month, regardless of the number of days it contains. Guaranty Trust & Safe Deposit Co. v. Green Cove Springs & Melrose Railroad Co., 139 U.S. 137, 11 S. Ct. 512, 35 L. Ed. 116; State v. Upchurch, supra; Muse v. London Assurance Co., supra; Daniel v. Ormand, 26 Ala.App. 441, 163 So. 361; Parseghian v. Parseghian, 206 Ark. 869, 178 S.W.2d 49; Allbritten v. National Acceptance Co., 183 Kan. 5, 325 P.2d 40; Bohles v. Prudential Insurance Co., 83 N.J.L. 246, 83 A. 904; Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720; In Re Lynch's Estate, 123 Utah 57, 254 P.2d 454; 52 Am.Jur., Time, § 11, p. 336; 86 C.J.S. Time § 10, p. 837; Annot., 97 A.L.R. 982 (1935).

We hold that, under the terms of the group insurance policy, plaintiff's coverage did not commence until 8 August 1963, one day after his son's hospitalization, and therefore defendant is not liable for the medical expense incurred. This may appear to work a hardship on plaintiff merely because the hospitalization was necessary on 7 August instead of 8 August, but we are not at liberty to rewrite the contract because of sympathy.

It follows that we disagree with the ruling of the trial judge, and the judgment appealed from is

Reversed.

CAMPBELL and MORRIS, JJ., concur.