Trinity National Life & Accident Insurance Co. v. Bomar

572 S.W.2d 790
CourtCourt of Appeals of Texas
DecidedOctober 12, 1978
DocketNo. 1167
StatusPublished
Cited by2 cases

This text of 572 S.W.2d 790 (Trinity National Life & Accident Insurance Co. v. Bomar) 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
Trinity National Life & Accident Insurance Co. v. Bomar, 572 S.W.2d 790 (Tex. Ct. App. 1978).

Opinion

DUNAGAN, Chief Justice.

This is an appeal by Trinity National Life Insurance Company, appellant-insurer, from an adverse judgment rendered by the trial court in a suit filed by Thomas Bomar, insured, and his daughter, both appellees. The suit was upon two major medical insurance policies, one with a $5,000.00 limit of liability, and the other with a $5,000.00 deductible and a $15,000.00 limit, written at the same time as a package and in which the contractual provisions in issue are identical. The sole question presented by this appeal is whether the policies' provision which provides that dependent coverage terminated upon marriage is invalid under the terms of Article 3.70-7, Texas Insurance Code. It appears that we are presented with a case of first impression.

The facts were stipulated by the parties and the cause submitted to the trial court as an agreed ease pursuant to Rule 263, T.R.C.P. The policies were first issued to Thomas Bomar with an effective date of July 10, 1975; premiums for the period of July 10, 1975 to July 10, 1976 were paid to and accepted by appellant-insurer. The following year, renewal premiums were paid to and accepted by appellant-insurer for the period of July 10, 1976 to July 10, 1977. The policies both contained the following provision which is the subject of this action:

“PART V
LIMITATIONS
A. ‘Dependent members of the Insured’s family’ as used in this policy means the dependent, unmarried child or children of the Insured who are under 18

[792]*792Vickie Bomar, Thomas Bomar’s daughter who was an insured dependent, was subsequently married to Kenneth McQueen on July 17, 1976. She was later hospitalized for surgery and medical treatment from January 23, 1977 to February 23, 1977; medical and hospital expenses in excess of $10,000.00 were incurred. A claim for benefits was duly submitted to appellant-insurer who then first learned of Vickie Bomar McQueen’s marriage. The claim for benefits was refused and appellant-insurer immediately attempted to retroactively delete Vickie Bomar from coverage under the policy, effective with the date of her marriage.

The trial court, after having approved and certified as correct the parties’ agreed statement of facts, concluded that the policies’ provision terminating dependent coverage upon marriage was invalid under Articles 3.70-4 and 3.70-7, Texas Insurance Code. Relying on Article 3.70-7, supra, the trial court held that the coverage of Vickie Bomar McQueen was effective at the time the medical, hospital, and doctor expenses were incurred and rendered a judgment that appellees recover $13,457.34.

Appellant has duly perfected this appeal, predicated upon a single point of error. It is appellant’s contention that the trial court erred in holding that Article 3.70-7, supra, invalidated the provision here in question which terminated dependent coverage for any child upon marriage. We agree.

Article 3.70-4(B) of the Texas Insurance Code states that when a provision of an insurance policy conflicts with the applicable provisions of the Act, “the rights, duties and obligations of the insurer, the insured and the beneficiary shall be governed by the provisions of this Act.” Appellees primary contention is that a conflict existed between Article 3.70-7, supra, and the policy limitation which terminated dependent coverage upon marriage. Article 3.70-7, supra, entitled “Age Limit,” provides in part that:

“If any such policy contains a provision establishing, as an age limit or otherwise, a date after which the coverage provided by the policy will not be effective, and if such date falls within a period for which premium is accepted by the insurer or if the insurer accepts a premium after such date the coverage provided by the policy will continue in force subject to any right of 'cancellation until the end of the period for which premium has been accepted.”

Appellees argue, and the trial court so held, that the words “or otherwise” are broad enough to, and do include, the limitation of marriage as found in the policies here in question. This ease, appellees assert, is the very type of situation which the Legislature intended to cover by enacting Article 3.70-7, supra. Since the marriage occurred during the policy period for which the premiums had been paid to and accepted by appellant-insurer, appellees conclude that the insurance coverage of Vickie Bomar McQueen was in effect at the time these losses were incurred.

In support of their position, appellees refer this Court to Mercury Life Insurance Company v. Parker, 354 S.W.2d 677 (Tex.Civ.App.—El Paso 1962, n. w. h.). This is the only case dealing with Article 3.70-7, supra, which has come to our attention. The case involves a suit to recover hospital benefits from the defendant insurance company which had issued a policy to the plaintiff-insured. The policy contained the specific limitation that no coverage would be afforded to persons over 60 years of age. On appeal from an adverse judgment in the trial court, defendant-insurer raised the defense that the insured was over 60 years of age. The Court of Civil Appeals expressly pointed out that the insured had truthfully and correctly stated her age but that the insurer had continued to receive and accept the premiums paid by insured “with notice of plaintiff’s correct age . . . .” [Emphasis added:] The court then overruled appellant-insurer’s point and cited Article 3.70-7 as authority. Mercury Life Insurance Company v. Parker, supra at 683. While the decision in Mercury Life is not directly on point with the question presented in the instant case, the rationale set forth by the court is significant.

[793]*793The significance of Mercury Life is the court’s express reliance on the concept of notice or knowledge. The doctrine of waiver is based upon notice or knowledge. Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming such right. Massachusetts Bonding & Insurance Company v. Orkin Exterminating Company, 416 S.W.2d 396, 401 (Tex.Sup.1967); Texas & Pacific Railway Company v. Wood, 145 Tex. 534, 199 S.W.2d 652, 656 (Tex.Sup.1947); New Amsterdam Casualty Company v. Hamblen, 144 Tex. 306, 190 S.W.2d 56, 59 (Tex.Sup.1945). The operation of the waiver doctrine presupposes full knowledge of the existing right.

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

Related

Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc.
927 S.W.2d 146 (Court of Appeals of Texas, 1996)
Bomar v. Trinity National Life & Accident Insurance Co.
579 S.W.2d 464 (Texas Supreme Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
572 S.W.2d 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trinity-national-life-accident-insurance-co-v-bomar-texapp-1978.