Angus v. Liberty Nat. Life Ins. Co.

• Decision Date: 28 September 1984
• Citation: 457 So.2d 971
• Parties: Emertha J. ANGUS v. LIBERTY NATIONAL LIFE INSURANCE COMPANY. 82-1268.
• Court: Alabama Supreme Court

Page 971

457 So.2d 971

Emertha J. ANGUS v. LIBERTY NATIONAL LIFE INSURANCE COMPANY.

82-1268.

Supreme Court of Alabama.

Sept. 28, 1984.

Robert M. Hill, Jr. and Margaret Helen Young, Florence, for appellant.

William M. Bouldin of Guin, Bouldin & Alexander, Russellville, for appellee.

ALMON, Justice.

This is an appeal by Emertha J. Angus from a judgment in favor of Liberty National Life Insurance Company.

The appellant brought suit as a beneficiary of a life insurance policy issued to her former husband, Franklin Angus. Mr. Angus died on September 11, 1980, and Liberty National refused payment, contending that the policy had been cancelled or had lapsed because of nonpayment of premium. The jury rendered a verdict for Liberty National.

The question to be resolved is whether the jury was properly charged on the burden of proof regarding cancellation of the insurance policy.

The following written charge, submitted by appellant, was refused by the trial court:

"The Court charges the jury that the burden is upon the plaintiff to reasonably satisfy you by the evidence of (1) the existence of the policy of insurance sued on; (2) the death of the insured, Franklin D. Angus; and (3) the giving of notice of proof of death to Liberty National Life Insurance Company. Once this burden of proof is met by the plaintiff, the burden is upon the defendant Liberty National Life Insurance Company to prove a valid cancellation of the policy of insurance or the non-payment of premiums." (emphasis added)

Instead, the trial court instructed the jury as follows:

"Now, ladies and gentlemen, the Plaintiff, in bringing the lawsuit, has the burden of proving to your reasonable satisfaction the following. First of all, the existence of a valid policy of insurance that is sued upon in this case. In other words, the Plaintiff's Exhibit 1, that that policy was in force and effect on September 11, 1980. The Plaintiff further must prove that the person insured under that policy, that is Franklin D. Angus, Sr., died, and further that notice or sufficient notice was given to the insurer, that is, Liberty National Life Insurance Company. Once this burden of proof is met by the Plaintiff, then the burden is on the Defendant, Liberty National, [to] prove a valid cancellation of the policy for nonpayment of premiums, or cancellation of the policy at the request of the Plaintiff, or a lapse of the policy for nonpayment of those premiums." (emphasis added)

After the instructions were given, but prior to the jury's retiring, appellant excepted to that portion of the charge which stated that she had the burden of proving that the policy was in effect on September 11, 1980.

In an action to recover under an insurance policy where the insurance company asserts cancellation as a defense, plaintiff has the burden of proving a prima facie case, and then the burden shifts to the defendant to prove cancellation. In National Life & Accident Ins. Co. v. Winbush, 215 Ala. 349, 110 So. 571 (1926), this Court held:

"Plaintiff, to establish a prima facie case, must prove: (1) the existence of the contract or policy sued on; (2) the death of the insured or the happening of the event provided for in the policy; and (3) the giving of notice and proof of death, as required by the policy."

215 Ala. at 351, 110 So. at 572. See Blue Cross-Blue Shield of Alabama v. Turner, 43 Ala.App. 542, 195 So.2d 807, 813, cert. denied, 280 Ala. 709, 195 So.2d 814 (1967). See generally National Life and Accident Ins. Co. v. Allen, 285 Ala. 551, 234 So.2d 567, 569 (1970); Globe Life Ins. Co. of Alabama v. Howard, 41 Ala.App. 621, 147 So.2d 853, 857 (1962); United Benefit Life Ins. Co. v. Dopson, 26 Ala.App. 452, 162 So. 545, cert. denied, 230 Ala. 660, 162 So. 546 (1935). ¹

In Mobile Fire and Marine Ins. Co. v. Kraft, 36 Ala.App. 684, 63 So.2d 34 (1953), the court held as follows:

"The rule prevails also that, when an insurance company asserts cancellation of a policy as a defense in a suit on the contract, the burden is case on the defendant to prove the allegations of the plea." (citations omitted)

36 Ala.App. at 686, 63 So.2d at 36. Trans-America Ins. Co. v. Wilson, 262 Ala. 532, 80 So.2d 253 (1955), states as follows:

"The authorities are clear that an insurer asserting cancellation of a policy has the burden of proof."

262 Ala. at 534, 80 So.2d at 255. See Iowa Mutual Ins. Co. v. West, 40 Ala.App. 332, 116 So.2d 388, 394 (1959); United States Fidelity and Guaranty Co. v. Williams, 43 Ala.App. 205, 186 So.2d 738 (1966).

That portion of the charge which stated that plaintiff had the burden of proving "that [the] policy was in force and effect on September 11, 1980" was an erroneous statement of the law. In United Benefit Life Ins. Co. v. Dopson, supra, the court was reviewing a jury charge given in a life insurance case. The trial court charged the jury as follows:

"The burden being on the plaintiff to reasonably satisfy you twelve men that the policy was in force and effect on February 4th when the assured, Tennyson Dopson died." ...