Korlann v. E-Z Pay Plan, Inc.

428 P.2d 172, 247 Or. 170, 1967 Ore. LEXIS 460
CourtOregon Supreme Court
DecidedMay 24, 1967
StatusPublished
Cited by18 cases

This text of 428 P.2d 172 (Korlann v. E-Z Pay Plan, Inc.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Korlann v. E-Z Pay Plan, Inc., 428 P.2d 172, 247 Or. 170, 1967 Ore. LEXIS 460 (Or. 1967).

Opinions

GOODWIN, J.

Plaintiff is the Oregon receiver for Superior Mutual Insurance Co., an insolvent Wisconsin corporation. Defendants are two Oregon corporations, Manhattan Agencies, Inc., which placed automobile liability insurance with Superior and other insurance companies, and E-Z Pay Plan, Inc., which discounted the time-payment contracts of Manhattan’s customers as a means of financing their insurance premiums. Manhattan and E-Z Pay appeal a decree in favor of Superior’s receiver.

At the time of Superior’s insolvency, the account between Manhattan and Superior showed credits favoring Superior in the sum of $39,194.29 (earned premiums and other credits), and credits favoring Manhattan in the sum of $112,907.22.

Manhattan’s favorable balance included $30,663.63 in unearned premiums due Manhattan from Superior for distribution to Manhattan’s customers as the result of cancellations effected in the regular course of business prior to Superior’s insolvency. The remainder of the balance shown to be in Manhattan’s favor was made up of unearned premiums that became “unearned” upon Superior’s insolvency. Holz v. Smullan, 277 F2d 58, 62 (7th Cir 1960).

[173]*173(In outlining the facts we have used figures quoted by the parties solely for the purposes of illustrating their legal theories, and we do not adopt any of these figures or treat them as established for accounting purposes.)

Manhattan, when notified of Superior’s insolvency, was holding cash premiums which had been advanced by E-Z Pay in the sum of $46,991.36. This sum was returned to E-Z Pay by Manhattan and is the principal subject matter of this litigation.

The money advanced by E-Z Pay was in each instance secured by the assignment to E-Z Pay of the customer’s insurance policy. E-Z Pay was, therefore, ultimately entitled to any unearned premium that might be refunded by Superior in the event of the cancellation of any policy so assigned to E-Z Pay.

At all material times prior to Superior’s insolvency, Superior and Manhattan had been settling accounts with each other under an arrangement known in the insurance industry as an “account current, seventy days.”

An account current is defined as “the insurance agent’s statement of policies written and premiums returned on cancellation during the month, net premiums being recorded whether paid or not.” 16 Appleman, Insurance Law and Practice § 8786, at 229 (1944). Such accounts are not unusual in the type of business being conducted in this case. See Bushnell, Receiver v. Krafft et al, 133 Ind App 474, 183 NE2d 340 (1962).

An “account current, seventy days,” according to the testimony, is the same as a thirty-day “account current” except that the agent has seventy days after a policy is issued in which to remit net balances, if any, that may be due the insurer.

[174]*174The receiver does not deny that if insolvency had not intervened, Manhattan would have been entitled to continue to settle its account periodically by remitting only the net balances credited to Superior on any given settlement date. The record shows, for example, that ten days before the insolvency occurred, Manhattan had forwarded to' Superior all sums due Superior under the accounting system employed.

Under the method of doing business followed by Manhattan and Superior, Manhattan received from Superior (or deducted from premiums due Superior) and credited to its customers’ accounts unearned premiums resulting from cancellations. (As is apparently the custom in the trade, these unearned premiums were rarely returned in cash to the customer, but were ordinarily used in the customer’s behalf either to satisfy his debt to E-Z Pay or to obtain new insurance to replace the insurance which had been canceled. See, for a case involving similar practices, Downey v. Humphreys, 102 Cal App 2d 323, 227 P2d 484 (1951).)

The testimony in the case at bar indicated that most, if not all, cancellations in the course of business were actually made by Manhattan, usually because of the nonpayment of a premium installment when due. Superior apparently allowed Manhattan unlimited discretion in making such cancellations. These cancellations were the only practical method available to Manhattan to encourage payment of installments. In case of such a cancellation, Manhattan would credit Superior with the amount of the refund and then pay over to E-Z Pay the unearned premium. No money would move from Superior to Manhattan, but the “account current” would show that the refund had reduced the amount due Superior from Manhattan.

[175]*175On the theory that Manhattan was a trustee and thus bound to pay unconditionally all premium money, earned or unearned, received from policy holders to Superior’s receiver upon notice of Superior’s insolvency, the receiver obtained an order to show cause against both Manhattan and E-Z Pay. The order apparently was drawn according to the receiver’s theory that Manhattan’s payment to E-Z Pay after notice of insolvency was a conversion and that the receiver could therefore follow the money into E-Z Pay’s hands by treating E-Z Pay either as a converter or as a constructive trustee.

The record shows that E-Z Pay and Manhattan had certain officers and shareholders in common. The two defendants concede that they worked closely together, Manhattan producing the insurance business and E-Z Pay financing the premiums. The business attempted to satisfy the insurance needs of young or “rated” drivers, virtually all of whom had difficulty buying insurance. In such a business, the premiums and the risks were high. Most of the premiums had to be financed and paid in monthly installments.

In considering the rights of the parties in this case, we deem it irrelevant that Manhattan and E-Z Pay shared common ownership and were more or less under common management. There has been no pleading or proof of any impropriety in their method of doing business. Accordingly, the two corporations, for the purposes of this case, are treated as if they were strangers acting in the ordinary course of business.

Manhattan defended the show-cause order by asserting a right of setoff. Manhattan argued that as Superior’s creditor it could set off against any claims of Superior all sums due Manhattan on behalf of its customers according to the method of accounting employed [176]*176between Manhattan and. Superior at all times prior to insolvency. Prior to insolvency, there is no doubt that Superior had treated all unearned premiums as money “due” Manhattan. In the periodic settlement of their mutual account, Superior had always allowed Manhattan to set off all unearned premiums against premiums to be accounted for by Manhattan in striking the net balance between them.

Upon the insolvency of Superior, the consideration for the premiums theretofore paid by Manhattan’s policy holders failed and the policy holders or their assignee became entitled to the return of the unearned portions of the premiums. Notwithstanding the fact that E-Z Pay, as an assignee, was the ultimate “owner” of most of the unearned premiums, Manhattan, as a broker, remained Superior’s creditor for the purpose of settling accounts with Superior and making eventual disbursement to policy holders.

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Korlann v. E-Z Pay Plan, Inc.
428 P.2d 172 (Oregon Supreme Court, 1967)

Cite This Page — Counsel Stack

Bluebook (online)
428 P.2d 172, 247 Or. 170, 1967 Ore. LEXIS 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/korlann-v-e-z-pay-plan-inc-or-1967.