Black v. Aetna Insurance Co.

909 S.W.2d 1, 1995 Tenn. App. LEXIS 434
CourtCourt of Appeals of Tennessee
DecidedJune 30, 1995
StatusPublished
Cited by24 cases

This text of 909 S.W.2d 1 (Black v. Aetna Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black v. Aetna Insurance Co., 909 S.W.2d 1, 1995 Tenn. App. LEXIS 434 (Tenn. Ct. App. 1995).

Opinion

OPINION

KOCH, Judge.

This appeal involves the insurance coverage for an automobile that was destroyed by fire. The owners of the automobile filed a declaratory judgment action in the Circuit Court for Rutherford County after their insurance company denied coverage on the ground that the policy had been canceled for nonpayment of premiums shortly before the fire. The trial court heard the case without a jury and awarded the owners $9,125. The insurance company asserts on this appeal that the trial court should have determined, either in response to its motion for summary judgment or following the hearing, that its policy had been canceled before the date of the fire that destroyed the automobile. We have determined that the insurance company had effectively canceled the policy prior to the loss and, therefore, reverse the trial court.

I.

Stephen and Barbara Black reside in Mur-freesboro. They obtain their personal insurance through the Webb Pickard Insurance Company in Lavergne. Janice Templeton, Webb Pickard’s office manager, has assisted the Blacks since 1982 in obtaining insurance for their home, their boat, and their automobiles from The ¿Etna Casualty and Surety Company (“¿Etna”) and other related carriers. Ms. Templeton considers the Blacks to be personal friends and preferred customers.

The Blacks’ personal auto policy covered their 1987 Pontiac GrandAm and their 1989 Pontiac GrandPrix. They paid them premiums semiannually, and in late January 1991 received a routine renewal notice from ¿Etna stating that the renewal premium for the six-month period between March 9 and September 9, 1991, would be $551. The notice also stated that the Blacks could keep their insurance in force by making a minimum payment of $221.

Before the deadline for the minimum payment, Ms. Black telephoned Ms. Templeton to find out whether they could reduce their premium by increasing the deductible on their collision coverage. Ms. Templeton informed Ms. Black that increasing their deductible would reduce their semiannual premium by $60. Accordingly, Ms. Black requested Ms. Templeton to modify their coverage and also sought her advice about paying the premium on their existing policy. Ms. Templeton advised Ms. Black to pay the minimum amount due on the existing policy and informed her that ¿Etna would send her a statement for the remaining premium on the revised policy. On March 1, 1991, Mr. Black sent ¿Etna a $224 check (the $221 minimum payment plus a $3.00 installment fee).

¿Etna sent the Blacks a new declarations page for their policy on March 9, 1991. The Blacks, who had been experiencing problems with the delivery of their mail, did not receive the new declarations page or, more importantly, the accompanying notice that they still owed $276 for their semiannual premium. The notice stated that the Blacks could pay the remaining premium in full or that they could keep the policy in force by paying $53 on or before April 9, 1991.

The Blacks made no further premium payments because they had not received the March 9 notice. On April 23, 1991, ¿Etna mailed them a notice of cancellation stating that their new policy would be canceled on May 29, 1991, if they did not pay at least $177 by May 9, 1991. The Blacks insist that they never received ¿Etna’s April 23 notice. ¿Etna canceled the Blacks’ policy on May 29, 1991.

The Blacks’ 1987 Pontiac GrandAm was totally destroyed in a garage fire at their home on June 2,1991. They telephoned Ms. Templeton on June 3, 1991, to report the loss. Later the same day, Ms. Templeton received a notice from ¿Etna that the Blacks’ policy had been canceled on May 29, 1991, due to nonpayment of premiums. Ms. Tem-pleton informed Mr. Black of the situation on June 4, 1991. The Blacks were surprised and upset.

While ¿Etna did not hesitate to cover the damage to the Blacks’ house under their homeowner’s policy, it informed the Blacks *3 on June 14, 1991, that it reserved its rights to deny coverage for the loss of their automobile. On August 14, 1991, .¿Etna informed the Blacks that it had denied their claim because their automobile policy had been canceled before the loss occurred. The Blacks filed suit on October 29, 1991 in the Circuit Court for Rutherford County seeking a declaratory judgment that their ¿Etna policy was in effect at the time of the loss. The trial court heard the proof in July 1993 and filed its opinion in August 1993. The trial court concluded that

[t]he insurer has the responsibility to inform direct bill policyholders of the changes including but not limited to, the changes in their premium. In this cause the insurer failed to notify the Blacks except by a “Notice of Cancellation”, which was not received, and was mailed April 20, 1991, or forty-two (42) days at least after the company put into effect the policy of insurance for the Blacks. A policyholder after being instructed by an agent of the company to await a notice from the company is entitled to quicker notice. Failure to do so by Aetna makes the carrier liable for the loss.
Obviously, the carrier received the partial payment on or before March 9, 1991. Notice of the balance due should have been promptly sent to the Blacks. The record contains no evidence of such a notice until the notice of cancellation allegedly mailed by Aetna Life and Casualty on April 20, 1991, as shown by Exhibit No. 3 attached to the “Affidavit of David Uhlman.” (No explanation was given the Court for the dates written in ink on page 24 of the “Certificate of mailing.”)

¿Etna perfected this appeal on the ground that mailing of the notice of cancellation alone should have been sufficient to cancel the Blacks’ policy.

II.

The parties’ respective rights and obligations are governed by their contract of insurance whose terms are embodied in the policy. As with any other contract, our responsibility is to give effect to the expressed intention of the parties, Blaylock & Brown Constr., Inc. v. AIU Ins. Co., 796 S.W.2d 146, 149 (Tenn.Ct.App.1990), by construing the policy fairly and reasonably, Demontbreun v. CNA Ins. Cos., 822 S.W.2d 619, 621 (Tenn.Ct.App.1991); Dixon v. Gunter, 636 S.W.2d 437, 441 (Tenn.Ct.App.1982), and by giving the policy’s language its common and ordinary meaning. Tata v. Nichols, 848 S.W.2d 649, 650 (Tenn.1993); Parker v. Provident Life & Accident Ins. Co., 582 S.W.2d 380, 383 (Tenn.1979). We are not at liberty to rewrite an insurance policy simply because we do not favor its terms or because its provisions produce harsh results. In the absence of fraud, overreaching, or uneonscionability, the courts must give effect to an insurance policy if its language is clear and its intent certain. Quintana v. Tennessee Farmers Mut. Ins. Co., 774 S.W.2d 630, 632 (Tenn.Ct.App.1989).

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Bluebook (online)
909 S.W.2d 1, 1995 Tenn. App. LEXIS 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-aetna-insurance-co-tennctapp-1995.