Barber v. Bankers Life & Cas. Co., 42056
| Decision Date | 17 August 1972 |
| Docket Number | No. 42056,42056 |
| Citation | 500 P.2d 88,81 Wn.2d 140 |
| Parties | Mary Jane BARBER, Appellant, v. BANKERS LIFE AND CASUALTY COMPANY, a foreign corporation, Respondent. |
| Court | Washington Supreme Court |
Schroeter, Jackson, Goldmark & Bender by John Goldmark, Seattle, for appellant.
Karr, Tuttle, Koch, Campbell, Mawer & Morrow by John F. Kruger and Douglas F. Graham, Seattle, for respondent.
This is an an action to recover on an accidental death insurance policy issued to appellant's husband, or, in the alternative, to recover damages for alleged delay in issuance of the policy.
Desirous of obtaining accidental death coverage, Harrison L. Barber and his wife Mary Jane Barber responded to an advertisement published in a national magazine by Bankers Life and Casualty Company.
Subsequently, the insurer's agent visited the Barbers at their home on the evening of October 16, 1968 and insurance applications for both the Barbers were completed. Certain questions were asked of the Barbers and their responses were recorded on the printed application forms in the handwriting of the agent.
Question 14 of Mr. Barber's application reads as follows:
Do you understand and agree that the Policy hereby applied for will not take effect until it is issued by the Company and duly executed by the President and Secretary of the Company and that the Company is not bound by any knowledge of, or statements made by, or to any agent, unless set forth herein?
The answer to this question on Mr. Barber's application, recorded in the agent's handwriting, is 'yes'. Mr. Barber then signed his application, which contained a statement that the applicant had read the application.
The agent certified that he asked the applicant all the questions contained in the application and all the information supplied by the applicant was truly and accurately recorded.
During the interview, Mr. Barber gave a check for $108 to the agent to cover the initial premiums on both policies. The premium on Mr. Barber's policy was $64.91 and on Mrs. Barber's policy it was $55.09, a total of $120. An underwriting fee of $6 on each policy was forgotten by the agent, which explains the difference between the figures. Mr. Barber recived only one document in the transaction, a receipt for $108. The receipt was as follows:
Received from H. L. Barber (applicant) an application for a policy of insurance, and $108.00 (the initial premium exceeds subsequent premiums by $_ _) to pay premiums on the policy for u2 months from its date of issue. In the event the application is declined, the above amount will be refunded. No other obligation is incurred by the company unless said application is approved by the company at its Home Office and a policy is issued and executed by its President and Secretary.
Date 10/16/68
s/John Dumett 55981
-------------- ------
Representative number
The next day, October 17, Mr. Barber was killed in an airplane crash.
The application of Mr. Barber was received at the home office of Bankers Life and Casualty Company on October 28. From October 28 to November 21, the insurer was engaged in underwriting procedures. The insurer learned of the death of Mr. Barber on November 21 and the company declined to issue the policy on November 22, 1968.
Mrs. Barber brought this action. This appeal is taken from the order granting a summary judgment dismissing Mrs. Barber's complaint with prejudice.
The issue on appeal is whether the trial court erred in granting the defendant's motion for summary judgment and thereby finding that no genuine issue existed as to any material fact.
Pursuant to CR 56(c), a summary judgment, is only available where, '. . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'
The burden is on the movant for summary judgment to demonstrate that there is no genuine dispute as to any material fact and all reasonable inferences from the evidence must be resolved against him. Welling v. Mount Si Bowl, Inc., 79 Wash.2d 485, 487 P.2d 620 (1971). And, where a motion is made for summary judgment, it is the duty of the trial court to consider all evidence and all reasonable inferences therefrom in a light most favorable to the nonmovant. Maki v. Aluminum Bldg. Products, 73 Wash.2d 23, 436 P.2d 186 (1968). The motion should be granted only if, from this evidence, reasonable men could reach but one conclusion. CR 56(c); Meissner v. Simpson Timber Co., 69 Wash.2d 949, 421 P.2d 674 (1966). Only if the pleadings, depositions, admissions, and affidavits considered by the trial court do not create a genuine issue of material fact between the plaintiff and the defendant moving for summary judgment, is the latter entitled to judgment as a matter of law. Ferrin v. Donnellefeld, 74 Wash.2d 283, 444 P.2d 701 (1968).
In the instant case, the deposition of Mrs. Barber stated that the agent of the insurer knew that the decedent flew airplanes frequently in connection with his business and that he was interested in acquiring immediate accidental death insurance coverage. Further, it is the contention of the plaintiff (Mrs. Barber) that the decedent expressed special interest in immediate coverage under an accidental death policy and that the insurance agent told him that the policy would become immediately effective upon payment of the initial premium. The trial court noted that Mrs. Barber would testify that the decedent did not read the application and that neither she nor the decedent read question 14 which is quoted above. It was also indicated that Mrs. Barber would testify that the agent did not read question 14 to her or her husband.
On the other hand, the agent denied that he had told the plaintiff and her husband that the insurance policy would become effective immediately upon the receipt of the application and premium by him. Moreover, the agent testified that he had read all the questions of the application to the applicant, including question 14, and had truly and accurately recorded the applicant's answers. Defendant contends the above alleged facts are immaterial in view of the doctrine of an absolute duty to read what one signs. Perry v. Continental Ins. Co., 178 Wash. 24, 33 P.2d 661 (1934); Timm v. Hart, 59 Wash.2d 538, 368 P.2d 715 (1962); Hein v. Family Life Ins. Co., 60 Wash.2d 91, 376 P.2d 152 (1962).
In the instant case, the...
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