denial of such claims when the loss or disability begins during the two year period. Defendant contends that plaintiff's loss or disability began during the two year period.
It is well established that the interpretation of contractual provisions is a question for the court. McDowell-Wellman Engineering Co. v. Hartford Accident & Indemnity Co., 711 F.2d 521, 525 (3d Cir. 1983); Johnson v. Bensalem, 609 F. Supp. 1340 (E.D.Pa. 1985). The court interprets the subsection in question to mean that, if a claim can be contested because the disability began before the end of two years, then the claim can be contested only if the specific loss or disability for which the claim is made began during the two year period. It does not interpret the subsection to mean that any disability or loss during the two year period will allow the defendant to deny a later claim for loss or disability that is due to a different cause.
At the very least, the subsection is ambiguous as to whether it applies to a loss during the two year period from a disability different from the one resulting in plaintiff's claim after the two year period. When the language of an insurance policy is ambiguous or susceptible to more than one interpretation, it is well established under Pennsylvania law that it must be strictly construed against the insurer and in favor of coverage for the insured. Celley v. Mut. Ben. Health & Accident Assn., 229 Pa.Super. 475, 324 A.2d 430 (1974); Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983).
Defendant relies on a statement in the court's memorandum dated January 26, 1993, that there is an issue of fact as to "whether plaintiff suffered partial disability during the two year incontestability period from diabetes." Memorandum and Order at 15. On review of all the submissions in this case, the court concludes that the statement was made in error. There is no evidence from which to conclude that there is a question of fact as to partial disability of the plaintiff from diabetes during the two year incontestability period. The evidence as to disability during that period relates solely to plaintiff's coronary by-pass surgery.
While the reasons discussed above are sufficient in themselves to warrant the denial of defendant's motion for reconsideration, there are additional reasons in support of denial.
Even if there were evidence of a temporary period of disability due to diabetes during the two-year window, there is nothing in the policy that clearly disqualifies a claimant who has a temporary but resolved disability, as opposed to a continuous disability, starting within the two-year window. If plaintiff suffered a temporary period of disability due to diabetes during the two year period, followed by a period of health, and then suffered permanent disability after the expiration of the two-year period, plaintiff would have a valid claim for permanent disability. Under subsection (b) of the incontestability clause, quoted above, such a claim is not clearly excluded. The most defendant could claim is that the subsection is ambiguous on this point, which means that it must be construed in favor of coverage for the insured. The only section of the policy that specifically discusses recurrent disability states:
After a period of Disability for which We paid Benefits ends and You become Disabled again from the same or related causes, We will consider it a continuation of the prior period of Disability unless You have Monthly Earned Income for six months at least equal to Your Average Monthly Earned Income Before Disability began. (emphasis added)