Statewide Ins. Corp. v. Dewar

694 P.2d 1167, 143 Ariz. 553, 1984 Ariz. LEXIS 243
CourtArizona Supreme Court
DecidedMay 29, 1984
Docket16680-PR
StatusPublished
Cited by12 cases

This text of 694 P.2d 1167 (Statewide Ins. Corp. v. Dewar) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Statewide Ins. Corp. v. Dewar, 694 P.2d 1167, 143 Ariz. 553, 1984 Ariz. LEXIS 243 (Ark. 1984).

Opinions

FELDMAN, Justice.

Robert and Irene Dewar (Dewar) petition for review of a judgment entered in a declaratory judgment action in which Statewide Insurance Company (Statewide) sought an adjudication that Loren Desotell (Desotell) was not covered for damages which he had inflicted upon Dewar in an automobile accident. The trial court entered summary judgment against Dewar; the court of appeals affirmed by majority opinion. Statewide Insurance Corporation v. Dewar, 143 Ariz. 576, 694 P.2d 1190 (1983). We granted review to settle the narrow issue of whether a binder for automobile liability insurance covers the prospective insured for an accident occurring between the time coverage is bound and the application for insurance is rejected. We have jurisdiction under Ariz.Const. art. 6 § 5(3) and Ariz.R.Civ.App.P.Rule 23, 17A A.R.S. We hold that coverage did exist and reverse.

FACTS

On February 18, 1977 Desotell met with Reuben Frank, an agent of Statewide, to purchase automobile insurance. Desotell and Frank had not done business before. Desotell completed an application for insurance on a standard form prepared by Statewide. The application states in bold face type in the upper right hand corner that

[ujnless otherwise agreed, insurance will become effective at 12:01 a.m. of day following date of postmarkf.] Application will not be accepted for coverage bound unless complete in every detail and signed.

Desotell completed and signed the application. He gave Frank a check for $67.00 —the premium for the first two months of the policy. Frank bound coverage as of 1:30 p.m. on February 18, 1977 and so noted in the lower left corner of the application. The parties had no discussion with regard to the terms on which the check was given by Desotell and accepted by Frank. In his affidavit Frank stated that he “presumed the check would be paid when presented to the bank” and that he and Desotell “had no agreements as to when or in what manner to negotiate the check.” The only writing evidencing the check transaction is the combination of application and binder. It contains no language concerning the mode of payment, nor does it condition the existence of coverage under the binder in any way.

Desotell’s check was presented to his bank for payment on February 22, 1977, the next banking day. Desotell claims that on that date he had $1,400 in his checking account. However, this balance consisted primarily of checks drawn on out-of-town banks and these had not yet cleared. The bank dishonored Desotell’s check and returned it to Statewide with the notation “uncollected funds.” Statewide received the notice of dishonor on February 28,1977 and sent the following note to Desotell:

The check for your automobile insurance with our company is returned herewith. This check was uncollectable from the bank, who (sic) returned it to us marked “insufficient funds”.1
[555]*555It is now impossible for us to issue automobile insurance for you and must ask that you contact your agent, Reuben E. Frank, ... if other arrangements are necessary.

On March 1st Desotell and Dewar were involved in the automobile accident in which Irene Dewar was injured. On either March 2nd or March 3rd Desotell received the message quoted above.

Mrs. Dewar evidently sustained serious injuries; her medical expenses allegedly exceed $30,000. Dewar sued Desotell; Statewide disclaimed coverage for Desotell, leaving him “uninsured” with respect to the Dewar claim. Dewars made a claim under the uninsured motorist provisions of their insurance policy and were paid $15,000 by their insurer, Continental Casualty Co. As subrogee, and in Dewar’s name, Continental brought an action against Desotell for recovery of the uninsured motorist payment. See A.R.S. § 20-259.01(G). Desotell claimed that he was covered by Statewide with respect to this action, and the declaratory judgment action by Statewide against Desotell and Dewar followed.

The present argument, at least in part, is between the two insurers. Having paid $15,000 under its uninsured motorist coverage, Continental argues that Statewide should have paid the loss under the binder for liability coverage issued to Desotell. All parties acknowledge that the liability policy for which Desotell applied was not issued, so that if there is coverage by Statewide it can be based only on the binder. Two issues are raised by the facts. The first is whether the binder went into effect or whether it was void because dishonor of the check was either a failure of consideration or a condition subsequent. If the binder did go into effect, the second issue is whether the coverage bound was terminated prior to the time of the accident.

Both sides moved for summary judgment. Both sides agreed that there was no disputed issue of fact. Each claims that it was entitled to judgment as a matter of law. The trial court found for Statewide. In pertinent part, its judgment reads as follows:

The document issued by ... Statewide ... was an application for insurance on behalf of defendant Loren J. Desotell; That automobile liability insurance coverages insuring the said defendant Loren J. Desotell did not go into effect until payment of the required premium;
That payment of the required premium was never made; ...

Dewar appealed. Conceding that Desotell’s policy had never been issued and that coverage under that policy never went into effect, Dewar argued, nevertheless, that coverage had been effected under the binder issued at the time the check for the premium payment on the policy was delivered to the agent. Dewar contends that such coverage did not terminate until the day after the accident, when Desotell received the message from Statewide informing him of the dishonor of the check and consequent rejection of his application for insurance. The majority of the court of appeals rejected this reasoning and stated “that when the check is dishonored there is a failure of consideration, relieving the other party from liability____” 143 Ariz. at 577-578, 694 P.2d at 1191-92. Characterizing Dewar’s argument as “a rather ingenuous legal theory relating to some imagined ‘special’ law pertaining to insurance binder contracts” (id. at 578, 694 P.2d at 1192), the court held that where the agent has “required the actual present payment of the premium as consideration for the extension of binder coverage” (id. at 579, 694 P.2d at 1193) neither the binder coverage nor the policy coverage goes into effect until the payment required has actually been made. We do not disagree with this portion of the court’s legal analysis, but find it inapplicable to the uricontroverted facts of this case.

[556]*556NATURE OF A BINDER

Binders have been referred to as contingently accepted applications for insurance. Turner v. Worth Ins., Co., 106 Ariz. 132, 134, 472 P.2d 1, 3 (1970). A binder is simply a contract made in contemplation of the issuance of a later, formal agreement of insurance. The binder incorporates by implication all the terms of the policy to be issued. Id. at 133, 472 P.2d at 2.

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Statewide Ins. Corp. v. Dewar
694 P.2d 1167 (Arizona Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
694 P.2d 1167, 143 Ariz. 553, 1984 Ariz. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/statewide-ins-corp-v-dewar-ariz-1984.