Olsen v. Federal Kemper Life Assurance Co.

700 P.2d 231, 299 Or. 169, 1985 Ore. LEXIS 1241
CourtOregon Supreme Court
DecidedMay 21, 1985
DocketTC A8110-06171 CA A26516 SC S30821
StatusPublished
Cited by8 cases

This text of 700 P.2d 231 (Olsen v. Federal Kemper Life Assurance Co.) 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
Olsen v. Federal Kemper Life Assurance Co., 700 P.2d 231, 299 Or. 169, 1985 Ore. LEXIS 1241 (Or. 1985).

Opinions

[171]*171ROBERTS, J.

The issue is whether a failure to fulfill a condition precedent to the formation of an insurance contract prevented the policy from becoming effective.

This is an action on a policy insuring the life of plaintiffs deceased husband. The following dates and events are pertinent. On December 2, 1980, the decedent completed an application for life insurance and delivered it to the defendant. The application contained this provision:

“* * * [T]he Company shall incur no liability under this application until it has been received and approved, a policy issued and delivered and the full first premium specified in the policy has actually been paid to and accepted by the Company, all while the health, habits and any other condition relating to each person proposed for insurance are as described in this applicacion [sic] * * *.”

On January 2,1981, the decedent learned that he had terminal cancer. The insurance company was not informed of this change in his health. On January 16, the policy was delivered to the decedent at the agent’s office and the decedent made the first premium payment. The policy contains a “policy date” of “January 1, 1981.” The premium was also calculated from January 1,1981. On February 14,1981, the decedent died as a result of the cancer.

A jury found in favor of plaintiff and a judgment was entered. The defendant appealed, claiming that the court erred in not granting its motion for a directed verdict and its motion for judgment notwithstanding the verdict. The Court of Appeals reversed the trial court and remanded with instructions to enter a judgment for defendant, Olsen v. Federal Kemper Life Assurance Company, 68 Or App 90, 681 P2d 144 (1984).

The Court of Appeals majority opinion and the dissent differed on whether there exists an ambiguity concerning the effective date of the policy. The majority held there is no ambiguity because the terms of the condition precedent are clear and were not complied with; the dissent found that an ambiguity exists between the policy date and the preconditions and would decide the case in favor of the insured.

This case turns on the meaning and application of the [172]*172last clause in the provision quoted above: “all while the health, habits and any other condition relating to each person proposed for insurance are as described in this applicacion [sic].” Throughout this opinion we refer to this clause both as a precondition and a condition precedent. We do not use these terms in their contract law context. We mean that the clause is a condition that must be met before formation of any contract at all.

Plaintiff attempts to compare her situation to three Oregon cases. We find them distinguishable. In Stinchcombe v. N.Y. Life Ins. Co., 46 Or 316, 80 P 213 (1905), the question was whether a policy had lapsed for failure to pay a premium by a specific date. This court held that the policy continued in effect for two years from the date of a premium and not from an earlier “anniversary date” on which the insurer claimed the payment was due. The question was one of continuing effectiveness of the policy, not whether it ever came into effect in the first place.

Mutual Life Ins. Co. u. Muskler, 143 Or 327, 21 P2d 804 (1933), involved a provision similar to the one in question here. The policy was not to take effect until the first premium had been paid “during the insured’s continuance in good health.” The court found insurance coverage because although the insured was diseased at the time of the application, he had no knowledge of that fact when the policy was delivered. The decedent here had knowledge of his disease when the policy was delivered.

In Krause v. Washington Nat. Ins., 255 Or 446, 468 P2d 513 (1970), the court examined the language and circumstances purportedly making the first premium payment a condition precedent, and concluded that it was not a condition precedent because “a condition precedent to coverage must be clear and unambiguous and will not be implied.” 255 Or at 459-60. The court also stated that “[w]hen such provisions are included in the insurance contract as conditions precedent they are held to be effective, in accordance with their terms.” 255 Or at 457.

Plaintiff, arguing that the issue is one of interpretation of ambiguous terms in the policy, asks us to apply the approach stated in Shadbolt v. Farmers Insur. Exch., 275 Or 407, 551 P2d 478 (1976), that inconsistency is resolved in [173]*173favor of the insured and that an insured might reasonably conclude that the application provision has been superseded when he sees the later express provisions of the policy. To the contrary, the effect of ambiguous provisions is not presented here because the “good health” provision was a condition precedent which the decedent was required to fulfill before the policy became effective at all.

Applications for policies of life insurance frequently contain “good health” provisions. These clauses are held to be valid and enforceable and are a condition precedent to the effectiveness of a policy. Both 1 Appleman, Insurance Law and Practice § 151 (1981), and 9 Couch, Cyclopedia of Insurance Law § 39.57 (2d ed 1962), support this characterization of a “good health” provision and also set forth the proposition that no contractual duty arises under a policy until there has been compliance with the conditions precedent. These treatises indicate that the failure to satisfy such conditions results in the failure of the policy to become effective. Even though a policy would otherwise take effect at a certain time, failure to meet the condition precedent prevents it from becoming effective. Appleman writes that “the insurer may provide that the policy shall not become effective until delivered to the insured while he is in good health, and such a provision is valid and binding upon all parties. And, in order for the claimant to recover, he must show the fulfillment of such condition.” 1 Appleman, supra, § 151 at 483-87. (Footnotes omitted.)

Plaintiff directs us to statements in 9 Couch, supra at § 39.80, which indicate that when the parties explicitly agree on, or the policy expressly states, its effective date, that date controls over a conflicting provision in the policy that the policy shall not be effective until some later date. We agree with defendant that this statement is directed toward conflicts between policy provisions and stipulations of the parties and has no application here.

Cases from other jurisdictions are in agreement with the conclusion we reach in this case. In Mutual Life Insurance Co. v. Campbell, 170 Wash 485, 16 P2d 836 (1932), the court held that a provision in the application for life insurance providing for continuance in good health was not met because the applicant had learned that he was going blind and had [174]*174begun a treatment for syphilis before the policy was delivered. The policy of insurance therefore never became effective.

More recently in Williams v. Metropolitan Life Ins., 10 Wash App 600, 519 P2d 1310 (1974), the application provided that the policy would not become effective unless, “at the time of delivery, the Proposed Insured is in the same condition of health as that represented” in a certain portion of the application.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sonnen v. AmerUs Life Insurance
250 F. App'x 222 (Ninth Circuit, 2007)
Wise v. American General Life Insurance Company
459 F.3d 443 (Third Circuit, 2006)
Nike, Inc. v. Northwestern Pacific Indemnity Co.
999 P.2d 1197 (Court of Appeals of Oregon, 2000)
Guida v. Paul Revere Life Insurance
937 F. Supp. 355 (D. New Jersey, 1995)
Western Fire Insurance v. Miller
778 P.2d 965 (Court of Appeals of Oregon, 1989)
Mary Grace Condon v. Inter-State Assurance Company
850 F.2d 688 (Fourth Circuit, 1988)
Olsen v. Federal Kemper Life Assurance Co.
700 P.2d 231 (Oregon Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
700 P.2d 231, 299 Or. 169, 1985 Ore. LEXIS 1241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olsen-v-federal-kemper-life-assurance-co-or-1985.