Bakker v. Continental Casualty Insurance

941 F. Supp. 828, 1996 U.S. Dist. LEXIS 15960, 1996 WL 613148
CourtDistrict Court, W.D. Arkansas
DecidedApril 1, 1996
DocketCivil No. 96-5029
StatusPublished

This text of 941 F. Supp. 828 (Bakker v. Continental Casualty Insurance) is published on Counsel Stack Legal Research, covering District Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bakker v. Continental Casualty Insurance, 941 F. Supp. 828, 1996 U.S. Dist. LEXIS 15960, 1996 WL 613148 (W.D. Ark. 1996).

Opinion

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Plaintiff is a dentist who seeks to renew his professional malpractice insurance upon the expiration of the current policy. His insurer, Continental Casualty Insurance Company, has notified plaintiff that it will not renew his policy due to “claims” on the prior policy. Plaintiff claims an action for breach of contract and for bad faith breach of contract.

Defendant has filed a motion to dismiss, or in the alternative for summary judgment, on the grounds that it was acting within its inherent right not to contract and that there are no provisions in the policy limiting that right, so long as proper notice is given, as it was.

The only papers necessary to decide this issue are plaintiffs complaint and the insurance policy itself. Nevertheless, both parties agree that the best course of action is for the court to decide this motion as one for summary judgment, and they have included all the papers they wish the court to consider.

I. POLICY LANGUAGE

The original insurance policy contained the following provisions governing non-renewal and cancellation. These provisions essentially gave defendant an absolute right to non-renew a policy but placed conditions on cancellation.

XV. Non-Renewal
[829]*829We can non-renew this policy by giving written notice to [you] ... at least 30 days before the expiration date.
XVI. Cancellation
This policy can be cancelled by either [you] or us [under the conditions specified].

These original policy provisions were" superseded by an endorsement entitled “STATE PROVISIONS—ARKANSAS MEDICAL PROFESSIONAL LIABILITY,” 1 the first sentence of which states that:

Any cancellation or non-renewal provisions contained in the policy to which this endorsement is attached are deleted and replaced with the following ...

The following endorsement is then composed entirely of one section entitled “cancellation,” 2 which provides as follows:

F. If this policy has been in effect for more than 60 days, or is a renewal, we shall not cancel this policy except for one or more of the following conditions ____

In essence, the endorsement provides that the policy cannot be “cancelled” except under certain conditions in cases where the policy (a) has been in effect for more than sixty days, or (b) has been in effect for less than 60 days but is a renewal policy.

The endorsement does not place any limits on non-renewal. The reason the policy treats cancellation and non-renewal differently is clear: placing limits on the insurer’s right to cancel merely limits its ability to avoid performance of a contract to which it is a willing party; but placing limits on the insurer’s right to non-renew would limit the insurer’s right to not enter a contract in the first place, potentially binding the insurer to its insured in perpetuity.

Despite the clear language and purpose of the policy, plaintiff contends that the conditions that the endorsement places on cancellation must also apply to non-renewal. Before considering this argument, the court will discuss the appropriate rules of insurance contract construction.

II. RULES OF CONSTRUCTION

In construing the policy, traditional rules of insurance policy construction apply. Ritter v. United States Fid. & Guar. Co., 573 F.2d 539 (8th Cir.1978). A policy is to be interpreted and construed like any other contract according to general contract principles to determine the mutual intent of the parties. Enterprise Tools, Inc. v. Export-Import Bank of U.S., 799 F.2d 437 (8th Cir.1986), cert. denied, 480 U.S. 931, 107 S.Ct. 1569, 94 L.Ed.2d 761 (1987). However, due to the reality that insurance contracts aré contracts of adhesion, the courts have developed some special rules of construction, the most important of which is the rule that when a policy provision is ambiguous, the court must resolve that ambiguity in favor of the insured. Deal v. Farm Bureau Mut. Ins. Co. of Ark, 48 Ark.App. 48, 889 S.W.2d 774 (1994).

The determination of ambiguity rests with the court. Deal, supra. However, this does not provide the court with license to rewrite the policy, or to import an ambiguity that does not exist, or to force an unnatural or perverted meaning from plain words under the guise of construction. Looney v. Allstate Ins. Co, 392 F.2d 401 (8th Cir.1968). Ambiguity exists only if the insurance policy provision is susceptible to more than one reasonable interpretation. Keller v. Safeco Ins. Co. of Am., 317 Ark.. 308, 877 S.W.2d 90 (1994). Also, the terms of an insurance policy are to be interpreted in their “plain, ordinary and popular sense,” rather than their legal or technical meaning. Southern Farm Bureau [830]*830Cas. Ins. Co. v. Williams, 260 Ark. 659, 662, 543 S.W.2d 467 (1976).

III. DISCUSSION

As the eourt made clear in its earlier discussion of the policy provisions, the provisions in question are clear and unambiguous. The policy clearly and expressly makes a distinction between cancellation provisions and renewal provisions. First, the body of the original policy has two separate sections, one entitled “cancellation” and one entitled “non-renewal.” Second, the introductory sentence of the endorsement states that it applies to “[a]ny cancellation or non-renewal provisions contained in the policy.” The following endorsement is then composed entirely of one section entitled “cancellation,” and the endorsement does, not place any limits on non-renewal. The reason the policy treats cancellation and non-renewal differently is clear: cancellation merely involves performance of an existing contract; non-renewal involves consent to a new contract.

As already indicated, the law of Arkansas is that an insurance policy issued by an insurance company to its insured is nothing more than a contract between two presumably willing parties, and should be construed as such. In this case, when the plaintiff applied for insurance, and when the insurance carrier agreed to provide a policy, the contract that the parties entered into was to last for a term of one year. When that year was up, the contract was over and done with. It was finished. At that point, the parties could agree to enter into a new contract for an additional period, but neither of them was required to, and nothing contained in Arkansas law or the insurance policy changed that.

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Armstrong v. Safeco Insurance
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Deal v. Farm Bureau Mutual Insurance Co. of Arkansas
889 S.W.2d 774 (Court of Appeals of Arkansas, 1994)
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Gahres v. Phico Insurance
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Egnatz v. Medical Protective Co.
581 N.E.2d 438 (Indiana Court of Appeals, 1991)
Keller v. Safeco Insurance Co. of America
877 S.W.2d 90 (Supreme Court of Arkansas, 1994)
Southern Farm Bureau Casualty Insurance v. Williams
543 S.W.2d 467 (Supreme Court of Arkansas, 1976)
McDonald v. State Farm Mutual Automobile Ins.
692 S.W.2d 274 (Court of Appeals of Arkansas, 1985)
Jarboe v. Shelter Insurance
819 S.W.2d 9 (Supreme Court of Arkansas, 1991)

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Bluebook (online)
941 F. Supp. 828, 1996 U.S. Dist. LEXIS 15960, 1996 WL 613148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bakker-v-continental-casualty-insurance-arwd-1996.