Johnson v. Prudential Insurance Co. of America

506 S.W.2d 238, 1974 Tex. App. LEXIS 2255
CourtCourt of Appeals of Texas
DecidedJanuary 16, 1974
DocketNo. 15149
StatusPublished
Cited by6 cases

This text of 506 S.W.2d 238 (Johnson v. Prudential Insurance Co. of America) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Prudential Insurance Co. of America, 506 S.W.2d 238, 1974 Tex. App. LEXIS 2255 (Tex. Ct. App. 1974).

Opinion

CADENA, Justice.

Plaintiff, Charles B. Johnson seeks to recover on certificates of insurance issued by defendant, the Prudential Insurance Company of America, on the life of plaintiff’s deceased wife, Katherine M. Johnson. Following trial to a jury, the trial court rendered judgment on the verdict in favor of defendant and plaintiff appeals from that judgment.

The jury found that the deceased insured, Mrs. Johnson, in her application for insurance, willfully omitted information that, at the time of making such application, she was under treatment for a cancerous condition, and that she willfully omitted such information with the intention of inducing defendant to issue its certificate of insurance. The jury further found that the information included in Mrs. Johnson’s application did not give defendant knowledge that she was then undergoing treatment for cancer.

Nine of plaintiff’s twenty-one points of error complain of defects in the court’s charge to the jury. Plaintiff’s objections to the charge were dictated to the court reporter prior to the time the charge was read to the jury. The objections were embodied by the reporter in a written instrument, bearing his certificate, which appears in the transcript. But there is in the record no instrument showing that the objections, after they were reduced to writing, were presented to the trial judge so that he could endorse his ruling thereon and affix his signature thereto.

Under these circumstances, plaintiff cannot complain of alleged defects in the charge. Rule 272, Texas Rules of Civil Procedure; Cody v. Mahone, 497 S.W.2d 382 (Tex.Civ.App. — San Antonio 1973, writ ref’d n. r. e.); Mergele v. Houston, 436 S.W.2d 951 (Tex.Civ.App. — San Antonio 1969, writ ref’d n. r. e.). Plaintiff’s points Nos. 2, 3, 6, 7, 8, 9, 10, 17 and 18 cannot be considered.

Plaintiff’s points Nos. 19, 20 and 21 are not briefed and will not be considered. Adams Leasing Co. v. Knighton, 456 S.W.2d 574 (Tex.Civ.App. — Houston [14th dist.] 1970, no writ).

Plaintiff’s eleventh point asserts that his motion for instructed verdict was erroneously overruled because the right of defendant to contest plaintiff’s claim was barred by a provision barring such contest after the insurance had been in force for a period of one year.

The insurance in question was group life insurance, with the group consisting of members of the National Education Association of the United States. The N.E.A. is identified in the Group or Master Policy as the policyholder. Members of the group desiring insurance were required to submit applications and to furnish information called for by questions included in the application form. When a group member’s application has been accepted, a certificate of insurance is issued to that member. The certificate recites that it contains a summary of the provisions of the Group Policies principally affecting the member’s insurance, and that all . . benefits are subject in every respect to the group policies which alone constitute the agreement under which payments are made.”

The group policies involved each contained the following clause:

“The validity of this Policy shall not be contested, except for non-payment of premiums, after it has been in force for one year from its date of issue.”

Plaintiff asserts that this incontestability clause prevents defendant from contesting liability, since the certificates of insurance evidencing the insurance on Mrs. Johnson’s life had been issued more than one year prior to defendant’s contest.

The incontestability clause found in the Group Policies, by its terms, bars a contest of the validity of “this policy” after “it” has been in force for a year from “its date of issue.” It is clear that the only possible [242]*242antecedent for the pronouns “it” and “its” is “this policy.” Therefore, substituting the antecedent of the pronouns for the pronouns, the clause by its language bars a contest of the validity of “this policy,” except for nonpayment of premiums, after “this policy” has been in force for one year from “this policy’s” date of issue.

It is clear that the term “this policy” refers to the Group Policy, and not to the individual insurance purchased by the members and evidenced by the certificates issued to the insured members. Op.Atty.Gen. No. M-117, August 11, 1967. We realize, of course, that opinions of the Attorney-General of this state are merely persuasive, and that the opinion in question deals with the proper interpretation of the incontestability clause required to be included in all insurance policies by Article 3.50, Section 2(2), Tex.Ins.Code Ann, V. A.T.S. But the reasoning on which the conclusion is based rests on statutory language very similar to the language found in the Group Policy, and we conclude that the conclusion reached in such opinion is sound.

The Group Policies contain the following statement:

“All statements made by the Policyholder or by the Members insured shall be deemed representations and not warranties, and no statement made by any Member insured hereunder shall be used in any contest of the insurance hereunder unless a copy of the instrument containing the statement is, or has been furnished, to such Member or to his Beneficiary. No statement made by any Member insured . . . relating to his insurability shall be used in contesting the validity of the insurance . . . with respect to which such statement was made after such insurance has been in force prior to the contest- for a period of two years during such Member’s lifetime nor unless it is contained in a written statement signed by him.” (Emphasis added.)

The language of the policy clearly distinguishes between the N.E.A. as policyholder, and the members of the N.E.A. as the persons actually insured. It distinguishes between statements made by the policyholder and statements made by the members insured. It distinguishes between contests concerning the validity of “this policy” and contests of the validity of the members’ insurance issued under the policy. Contests of the validity of “this policy” are barred after “this policy” has been in force for one year after date of its issue. With respect to contests of the validity of the insurance of individual members, it provides that no statement made by any member insured relating to his insurability shall be used in contesting the validity of the insurance with respect to which such statement was made after such insurance has been in force prior to the contest for a period of two years during such member’s lifetime.

The language relating to use of a member’s statement in a contest of the validity of his insurance is, in effect, an incontestability clause applicable to contests of the validity of that member’s insurance.

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Related

Houston General Insurance Co. v. Lane Wood Industries, Inc.
571 S.W.2d 384 (Court of Appeals of Texas, 1978)
Kribbs v. Prudential Insurance Co. of America
42 Fla. Supp. 93 (Polk County Circuit Court, 1975)
Rue Ann Adamson v. Home Life Insurance Company
508 F.2d 766 (Fifth Circuit, 1975)
Johnson v. Prudential Insurance Co. of America
519 S.W.2d 111 (Texas Supreme Court, 1975)

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Bluebook (online)
506 S.W.2d 238, 1974 Tex. App. LEXIS 2255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-prudential-insurance-co-of-america-texapp-1974.