Peninsular Life Insurance Company v. Rosin

104 So. 2d 792
CourtDistrict Court of Appeal of Florida
DecidedAugust 1, 1958
Docket251
StatusPublished
Cited by9 cases

This text of 104 So. 2d 792 (Peninsular Life Insurance Company v. Rosin) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peninsular Life Insurance Company v. Rosin, 104 So. 2d 792 (Fla. Ct. App. 1958).

Opinion

104 So.2d 792 (1958)

PENINSULAR LIFE INSURANCE COMPANY, a corporation under the laws of the State of Florida, Appellant,
v.
Elsie P. ROSIN, Appellee.

No. 251.

District Court of Appeal of Florida. Second District.

August 1, 1958.
Rehearing Denied September 16, 1958.

*793 Milam, LeMaistre, Ramsay & Martin, Wayne K. Ramsay, Jacksonville, Clyde H. Wilson, Sarasota, for appellant.

Rosin & Paderewski, P.T. Paderewski, Dart & Bell, Francis C. Dart, Sarasota, for appellee.

ALLEN, Acting Chief Judge.

This is an appeal from a final decree in a suit for declaratory relief. The plaintiff had sued Peninsular Life Insurance Company, a corporation, to have determined the effect of a conditional receipt given by the defendant company to plaintiff's deceased husband in connection with an application by the husband for life insurance. The decree determined that such receipt constituted interim life insurance upon the life of plaintiff's husband from the date of a certain physical examination and adjudged plaintiff, as beneficiary, to be entitled to the proceeds of such interim insurance as the result of her husband's accidental death. From this decree the defendant appeals.

The amended complaint alleged several grounds for relief, but the plaintiff, in the lower court, abandoned all grounds except the one on which the court below granted relief. Therefore, the sole question in this case is whether the conditional receipt given by the defendant insurance company constituted interim insurance.

The appendix to the appellee's brief included the application for insurance. There is some dispute as to whether this application was properly before the lower court. Since it does not affect our decision in this case, we shall comment on the application as though it were properly before the court. The application is on a typical insurance form and includes reference to the type of insurance, occupation, beneficiary, amounts, etc. The last paragraph of the application contains these words:

"I warrant that my answers to the foregoing questions are correct and true and binding upon me; I authorize any physician at any time to give you information he may be possessed of regarding me; I agree that the insurance hereby applied for shall not take effect until issued by the company and delivered to me and accepted by me and the first full premium paid during my good health, except as provided for in the conditional receipt for advance payment of the first premium."

The conditional receipt involved herein is as follows:

"(Valid only for the amount of the advance settlement shown in application under Section 4, Page 1)
"No. 11779 12-26-52
"Received from Marcus Aurel Rosin (Applicant) the sum of ____ $85.00 ____ dollars, being payment on account of policy applied for in the Peninsular Life Insurance Company, of Jacksonville, Florida. It is understood that if this payment is equal to the full first annual, semi-annual, quarterly, or monthly premium according *794 to the mode of premium payment selected by the applicant in making application for this policy the insurance shall take effect from the date of the application, or date of medical examination if an examination is required by the Company, whichever is the later, provided said application is approved and accepted at the Home Office of the Company at Jacksonville, Florida, for the plan, premium paid, and amount of insurance applied for, and further provided that the maximum liability of the Company including double indemnity benefits shall not exceed $25,000 if the applicant is between the ages of 10 and 50 inclusive and $15,000 at any other age. It is agreed that said Company will return the amount mentioned herein if it declines to grant a policy on the life of said applicant, or if it issues a policy other than as applied for which is not accepted by the applicant. Unless you receive a policy within six weeks from the date of this receipt, please notify the Company, giving the name of the person to whom paid and the amount and date of payment.
"District 23 Debit 8 F.R. Freeman "(Agent)"

The complaint alleged that the insurance was applied for on December 26, 1952, that the application and the first quarterly premium of $85 was taken by defendant's local agent, and that the deceased successfully passed the second of the two physicals required by defendant on January 13, 1953, thereby completing the application, that the defendant's home office had the complete application and premium on January 16, 1953, and that applicant Rosin was killed on January 20, 1953.

The chancellor's decree construed the conditional receipt as constituting interim insurance in the amount of $25,000 and ordered that amount paid to plaintiff, as beneficiary, plus interest, attorneys' fees in the amount of $7,500 and costs.

The question involved is one of first impression in Florida, although it has been passed upon by several other jurisdictions. We consider the question to be:

"Where the conditional receipt provided that the company would incur no liability unless the application be approved and accepted at the home office of the company for the plan, premium paid, and amount of insurance applied for, and said application was not approved or accepted, did the instrument provide for interim insurance prior to such acceptance by the home office?"

Many cases involving conditional insurance, interim insurance, or other types of insurance receipts have been decided by the courts upon the basis of estoppel, ambiguity of the policy, laches or other theories, none of which, we believe, are involved in this case.

It will be observed that the first sentence in the conditional receipt contains this parenthetical statement: "(Valid only for the amount of the advance settlement shown in application under Section 4, Page 1)". The paragraph relating to advance settlement, above referred to, is as follows:

"Premiums payable annually, semi-annually, quarterly or monthly? Q Advance settlement $85.00"

which sum of money was tendered to the plaintiff and refused.

The following is found in Florida Jurisprudence:

"Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms used by the parties. If they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense. * * *" 18 Fla.Jur. Insurance § 92.
"The general principle that a written agreement should, in case of ambiguity, be construed against the party who *795 drew the contract or chose the language used, is particularly applicable to contracts of insurance. As it is the insurer who furnishes and prepares the policies, this rule is of considerable importance in construing policies. The general rule is that terms in an insurance policy, that are ambiguous, equivocal, or uncertain to the extent that the intention of the parties is not clear and cannot clearly be ascertained by the application of ordinary rules of construction, are to be construed strictly and most strongly against the insurer, and liberally in favor of the insured, so as to effect the dominant purpose of indemnity or payment to the insured, especially where a forfeiture is involved, since the forfeiture of insurance policies is not favored by the courts. * * *" 18 Fla.Jur. Insurance § 94.

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Bluebook (online)
104 So. 2d 792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peninsular-life-insurance-company-v-rosin-fladistctapp-1958.