Lumbard, Chief Judge, and Moore and Feinberg, Circuit Judges.
Plaintiff appeals from orders of the District Court for Vermont which granted defendant's motion for summary judgment and denied plaintiff's motion for summary judgment in this diversity action for recovery under an accident insurance policy. The appeal presents the question whether the policy provision limiting coverage to losses occurring within 90 days of the accident precludes plaintiff from recovering for the loss of his foot in this case. We hold that the provision bars recovery by the plaintiff and we affirm the judgment below.
On October 30, 1964, plaintiff was struck by a motor vehicle and suffered severe injuries to his left leg. On the date of the accident there was in force an insurance policy issued by defendant to plaintiff which provided, inter alia :
If injury, sustained by an Insured Person . . . shall result in any one of the following specific losses within ninety days after the date of accident, the Company will pay the [following specified] amount . . .
One Hand or One Foot: One-Half The Principal Sum
"Loss" as above used means with reference to hand or foot, actual severance through or above the wrist or ankle joint.
The plaintiff's leg was amputated about five inches below the knee joint on July 16, 1965, over ninety days after the accident.
Plaintiff sued the insurance company to recover $12,500 under the policy for the loss of his foot. Defendant moved for summary judgment on the ground that the policy provided coverage only if the loss, defined as actual severance, occurred within ninety days; since it was undisputed that the amputation was performed more than ninety days after the accident, defendant claimed that the loss was not covered and that summary judgment should be granted for defendant.
Plaintiff also moved for summary judgment. According to plaintiff's theory, a loss within the meaning of the policy occurred within ninety days if within that time it had become apparent that amputation of the foot was required, even though the actual operation was postponed for medical reasons until after ninety days; the plaintiff submitted doctors' affidavits in support of his assertion that the necessity for amputating his foot was apparent from the outset but that the amputation was delayed in order to save the knee joint and as much of the leg as possible. On this theory plaintiff claimed to be entitled to summary judgment. Alternatively, plaintiff argued that the 90-day limitation, if construed to require that the actual amputation occur within the 90-day period, was void as against public policy.
The district court denied plaintiff's motion and granted defendant's motion for summary judgment. Plaintiff now appeals from these orders. Clearly, the court was correct in denying the plaintiff's motion. Even if plaintiff's interpretation of the 90-day limitation were accepted, he is not entitled to summary judgment since the affidavits at most present an issue of fact as to when it became apparent that amputation was required.*fn1
Defendant's motion was properly granted if the policy is interpreted as requiring that the actual amputation occur within ninety days. Under this construction of the policy, the factual issue as to when the decision to amputate was made is not relevant, and since it is undisputed that the severance occurred after ninety days, summary judgment for the defendant would be proper. Thus the questions are whether the provision must be read as limiting coverage to losses where amputation takes place within ninety days and whether the provision if so read is void as against public policy. This being a diversity case, these questions are governed by Vermont law.
The policy provides that if an injury results in certain losses within ninety days of the accident, the company will pay a specified amount; the amount specified for the loss of a foot is one-half the principal sum. The same provision further states that loss as used above means, with reference to a foot, actual severance through or above the ankle joint. There appears to be no Vermont case construing such a provision. The provision unequivocally states that coverage is limited to cases where the foot is actually amputated within ninety days. Since the provision is unambiguous, there is no room for application of the principle that insurance contracts are to be construed strictly against the insurer. That principle does not permit a court to hold that the insured is covered despite a clear policy provision to the contrary; before the principle may be invoked there must be some ambiguity subject to alternative constructions, and we find none in the present provision.
Most courts of other jurisdictions which have ruled on such provisions have similarly held that the provisions are unambiguous. See, e.g., Clark v. Federal Life Ins. Co., 193 N.C. 166, 136 S.E. 291 (1927); Orenstein v. Preferred Acc. Ins. Co. of New York, 138 Minn. 10, 163 N.W. 747 (1917); Shelton v. Equitable Life Assurance Society of United States, 28 Ill.App.2d 461, 171 N.E.2d 787 ...