Young v. Fidelity Union Life Insurance

597 F.2d 705
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 30, 1979
DocketNo. 77-1606
StatusPublished
Cited by1 cases

This text of 597 F.2d 705 (Young v. Fidelity Union Life Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Young v. Fidelity Union Life Insurance, 597 F.2d 705 (10th Cir. 1979).

Opinion

McWILLIAMS, Circuit Judge.

The issue here is whether the trial court erred in holding that a policy of life insurance issued to one Thomas Alexander Young by Fidelity Union Life Insurance [706]*706Company had lapsed for non-payment of premiums prior to Young’s death. We hold that the trial court did not err, and we therefore affirm.

Charlotte Meier Young, in her own name and as a so-called “assignee in trust” for two minor sons, brought the present action against Fidelity Union on a policy of life insurance issued to another son, Thomas Alexander Young. The latter was shot and killed by a robber on February 14, 1975. One issue formed by the pleadings was whether the policy of insurance was in force and effect on the date of the insured’s untimely death or, on the contrary, had lapsed because of non-payment of premiums. Both Young and Fidelity Union filed motions for summary judgment supported by affidavits and depositions. The trial court granted Fidelity Union’s motion and denied Young’s. The latter now appeals the judgment entered in favor of Fidelity Union.

On September 16, 1974, Thomas Alexander Young completed and executed an application for life insurance with Fidelity Union through its local Oklahoma agent. The application was for life insurance in the amount of $20,000, with double indemnification in the case of accidental death and with a provision for waiver of premiums in the event of disability. On the date that Young completed the application, he gave the local agent a money order in the amount of $30.06 as payment for the first month’s premium. The money order was forwarded to Fidelity Union along with the application. The application contained the following language concerning the effective date of the policy:

I agree that there shall be no liability hereunder until a policy shall be issued and manually delivered while the state of health of the Proposed Insured is as stated in this application and the first premium actually paid. If the full first premium is paid at the time of this application and in exchange for the Conditional Receipt bearing the same number as this application and if on that date the Proposed Insured was, in the opinion of the Company’s authorized officers at its Home Office, insurable and acceptable under the Company’s rules and practices for the policy, in the amount, on the plan, and otherwise exactly as applied for, then the insurance shall be effective from this date or the date of the last of any medical examinations or questionnaires required by the Company, if later, subject to the terms of the policy applied for and of the Conditional Receipt.

In exchange for the first month’s premium, the local agent gave Young a so-called Conditional Receipt which bore the same number as the application and contained the following language:

1. This payment is made and accepted subject to the following conditions: (1) if settlement for the first full premium is made at the time of making this part of the application and (2) if on that date Proposed Insured was, in the opinion of the Company’s authorized officers at its Home Office insurable and acceptable under the Company’s rules and practices for the policy in the amount, on the plan, and otherwise exactly as applied for; and if both conditions are met then the insurance shall be effective from date of this application, or the date of the last of any medical examinations or aviation or occupational questionnaires required by the Company in connection with this application, if later.

On September 18, 1974, a policy of life insurance was issued to Young by Fidelity Union in the face amount of $20,000, with a double indemnity provision in ease of accidental death and with a provision for waiver of premium in the event of disability. The policy was mailed by Fidelity Union on October 1, 1974, to the local agent for delivery to Young. Young was then in military service and stationed at Lackland Air Force Base in Texas. The local agent wrote to Young informing him that the policy had been received.

Fidelity Union’s pre-authorized check drawn on Young’s account in the Utica National Bank and Trust Company, Tulsa, Oklahoma, for payment of the monthly pre[707]*707mium due on October 18, 1974, was returned unpaid, marked “account closed.” The local agent then sent a new pre-authorized check card to Young in Texas, and also advised Young’s parents of the closed account and of his request that a new preauthorized check card be completed. Instead of a new pre-authorized check card, the local agent received a check from the insured’s mother, Charlotte Meier Young, the plaintiff and present appellant, dated November 18,1974, in the amount of $30.05, payable to Fidelity Union. This payment was forwarded to Fidelity Union and deposited.

The local agent later forwarded the policy to Young at his mother’s home address as he was unable to arrange a personal appointment with the insured who, as indicated, was then serving in the United States Air Force. The policy was received at the home of Young’s parents in Kiefer, Oklahoma on or about December 15, 1974, and given to the insured by his mother on December 22, 1974. No further premium payments were made, and notices that the policy had lapsed and requests for a new pre-authorized check card were sent to the insured on January 3, 1975, and February 5, 1975. Young died on February 14, 1975.

The policy provided for a 31-day grace period which continued coverage for 31 days after a premium became due but was unpaid, and further provided, however, that the policy would be cancelled and forfeited if the premium due had not been paid by the end of the grace period.

It is the position of Fidelity Union that the effective date of the policy was September 16, 1974, the date on which Young made application with Fidelity Union for the issuance of an insurance policy, and that only two monthly premiums had been paid and received. Thus, according to the insurance company, the policy was in effect for only two months, plus, the additional thirty-one day grace period, and that coverage had therefore lapsed on December 17, 1974, some 59 days prior to the insured’s death on February 14, 1975.

It is the plaintiff’s position that, under the provisions of the application, the insurance policy was not in force and effect until it was “manually delivered” to the insured on December 22, 1974. Therefore, according to the plaintiff, the two monthly premium payments, which were received by Fidelity Union, i. e., the one made by the insured on September 16, 1974, when he executed the application, and the second made by the insured’s mother on November 18, 1974, provided for coverage for two months subsequent to the manual delivery of the policy on December 22, 1974. Under this approach, the policy of insurance would have been in force and effect on February 14, 1975, the date of the insured’s death.

Where an insurance policy contains ambiguous or equivocal language, it'should be interpreted favorably to the insured. Unigard Ins. Co. v. Studer, 536 F.2d 1337, 1339 (10th Cir. 1976). However, a court cannot resolve an ambiguity where none exists, and an unambiguous insurance contract, like any other contract, should be enforced as written. Hercules Cas. Ins. Co. v. Preferred Risk Ins. Co., 337 F.2d 1, 3 (10th Cir.

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

Related

Young v. Fidelity Union Life Insurance Company
597 F.2d 705 (Tenth Circuit, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
597 F.2d 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-fidelity-union-life-insurance-ca10-1979.