Girard Trust Bank v. Life Insurance Co. of North America

364 A.2d 495, 243 Pa. Super. 152, 1976 Pa. Super. LEXIS 3206
CourtSuperior Court of Pennsylvania
DecidedSeptember 27, 1976
Docket1719
StatusPublished
Cited by17 cases

This text of 364 A.2d 495 (Girard Trust Bank v. Life Insurance Co. of North America) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Girard Trust Bank v. Life Insurance Co. of North America, 364 A.2d 495, 243 Pa. Super. 152, 1976 Pa. Super. LEXIS 3206 (Pa. Ct. App. 1976).

Opinions

[154]*154WATKINS, President Judge.

This case comes to us on appeal from the Court of Common Pleas of Philadelphia, Civil Law Division, and involves an appeal from the court’s granting of preliminary objections in the nature of a demurrer in favor of the defendant-appellee.

Appellant-plaintiff (“Girard”) initiated an action in assumpsit against appellee-defendant, Life Insurance Company of North America (“LINA”) on December 3, 1974, alleging in its complaint that four group creditor life insurance policies were issued by LINA to Girard on August 1, 1959, August 14, 1959, June 1, 1960 and November 1, 1968 and that certain rebates on such policies were due to Girard pursuant to the insurance contract’s provisions. Each of the policies was renewed annually until June 30, 1973 when three were terminated and August 31,1973 when the fourth was terminated.

One policy contained the following provision regarding the issue in the case:

“At the end of each policy year, the Company [LINA] may allow to the Creditor [Girard] an experience credit in such amount, if any, as may be determined in accordance with an experience rating plan which the Company then has in effect. The amount of each such experience credit, if any, shall be paid in cash to the Creditor, or upon request of the Creditor, shall be applied against the payment of any premium or premiums.” (Emphasis ours.)

The other three policies contain the following language:

“At the end of the first policy year, and on any premium due date thereafter but not more than once in any twelve month period, premiums shall be subject to such changes as the Company [LINA] may make. Any reduction in the premium rates so made for any policy year may also be made retroactive for the previous year and, in which event, a refund of premium [155]*155for that year shall be made to the Creditor [Girard]. No increase in premium rates shall be retroactive.” (Emphasis ours.)

After the initial issuance of the first two policies, riders were executed providing that those policies:

“. . . shall be considered as a single policy for the purpose of applying the Company’s [LINA’s] experience rating plan.”

Appellant’s complaint alleged that, pursuant to the foregoing policy provisions and riders and insurance industry custom, usage and practice, appellee [LINA] had a duty to make annual retroactive premium refunds to appellant based on appellee’s claims experience under the policies and that appellee refused to make any such refunds. Appellee filed preliminary objections to the complaint alleging that the complaint failed to state a cause of action upon which relief could be granted because the language in the foregoing provisions was permissive only and not mandatory with respect to the making of retroactive premium refunds and that the statute of limitations had run. The nexus of appellee’s assertions was that since the word “may” was used in the foregoing provisions, appellee was under no duty to make the premium refunds and that the decision as to whether to make such refunds rested in the sole discretion of appellee. The court below granted appellee’s preliminary objections in the nature of a demurrer and dismissed the action for failure to state a cause of action upon which relief could be granted. In light of this ruling the court did not pass on the statute of limitations issue.

Appellant’s position is that although the word “may” was used in the policy the appellee is under a duty to make the premium refunds because to hold otherwise would render the language in the policy regarding such refunds nugatory since a party could always make such refunds if it so desired and it would not have been necessary to include such terms in the policy if the making of [156]*156the refunds were left solely to the discretion of the appellee. Appellant reasons that therefore the court should have read the contract as a whole, giving effect to the policy terms, and construing the word “may” to mean “shall” or “must”. Appellant points out in its brief that creditor group life insurance policies differ from other types of life insurance policies in that while the policy is between the creditor and the insurance company, the policy insures the lives of a group of debtors, each to the amount of his or her outstanding indebtedness, and does not insure the creditor. Individuals become members of a given group by reason of a debtor-creditor relationship with the lending institution and not by reason of the risk potential which any of them exhibits. Therefore during the course of any given policy time period, the members of this group of debtors will vary, the individual characteristics of any given debtor as they relate to the risk involved will vary, and the amount of outstanding debt as it relates to any individual risk will also vary. Because of this the more commonplace methods of actuarial allocation of risk and premium costs often are not suited to creditor group life insurance plans. With this in mind the insurance industry has developed its own custom, usage and practice for the premium pricing of such policies. This custom or usage provides for premium adjustments to reflect the experience of the individual group as well as the experience of the insurer’s group operations as a whole. See Davis W. Gregg, “Group Life Insurance, An Analysis of Concepts, Contract Costs and Company Practices”, 3d Edition (The S. S. Huebner Foundation For Insurance Education, University of Pennsylvania, 1962). Since the various factors which will affect any individual such plan are not known at the beginning of any policy year, when premiums generally become due, it is necessary to provide for a rebate plan in the policy in order to adjust the policy premiums. The formula for such a premium adjustment is necessarily complex. In [157]*157any given year premium refunds may or may not be warranted depending on the amount of premiums paid, the incurred claims, reserves, taxes and administrative costs incurred by the insurer. Appellant argues that since the insurance industry has adopted such a method of premium computation regarding creditor group life insurance policies and since the policies in question do include references to such practices that a reading of the policies as a whole will lead to the conclusion that the premium rebate provisions are mandatory and not merely permissive.

Appellee argues that the policy provides in clear and unambiguous terms that the rebate provisions are merely permissive because of the use of the word “may”, that any evidence of the customs or usage of the insurance industry would directly contradict the clear and unambiguous terms of the contract, that there was no inequality of bargaining power in executing the contract because Girard Trust Bank is a large, urban financial institution with access to legal advice and that therefore the court below was correct in holding the provisions to be merely permissive in nature and in dismissing the complaint.

In deciding whether the demurrer to a complaint was properly sustained, we must accept as true all the well-pleaded facts in the complaint and all inferences reasonably deducible therefrom. All doubts must be resolved in favor of overruling the demurrer. Hoffman v. Misericordia Hospital, 439 Pa. 501, 267 A.2d 867 (1970).

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Girard Trust Bank v. Life Insurance Co. of North America
364 A.2d 495 (Superior Court of Pennsylvania, 1976)

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Bluebook (online)
364 A.2d 495, 243 Pa. Super. 152, 1976 Pa. Super. LEXIS 3206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/girard-trust-bank-v-life-insurance-co-of-north-america-pasuperct-1976.