Brand v. Monumental Life Ins. Co.

• Decision Date: 04 March 1981
• Docket Number: No. 381S57,381S57
• Citation: 275 Ind. 308,417 N.E.2d 297
• Parties: Dorothy I. BRAND, Appellant, v. MONUMENTAL LIFE INSURANCE COMPANY, Appellee.
• Court: Indiana Supreme Court

Page 297

417 N.E.2d 297

275 Ind. 308

Dorothy I. BRAND, Appellant, v. MONUMENTAL LIFE INSURANCE COMPANY, Appellee.

No. 381S57.

Supreme Court of Indiana.

March 4, 1981.

Chalmer Schlosser, Jr., William L. Schlosser, Schlosser, White & Schlosser, Indianapolis, for appellant.

John R. Carr, III, Stephan R. Buschmann, Buschmann, Carr & Meyer, Indianapolis, for appellee.

William M. Evans, Bose McKinney & Evans, Indianapolis, for amicus curiae.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Fourth District Court of Appeals. Appellant Dorothy Brand was plaintiff below. She was the wife of Bruce Brand, the insured, and brought the action for the $10,000 (ten thousand dollar) proceeds of a life insurance policy issued by appellee and defendant below, Monumental Life Insurance Company. Brand received an adverse judgment after a trial to the court and appealed that judgment, alleging that it was contrary to law and the evidence. It was Brand's contention that Monumental should have been estopped from asserting a forfeiture of policy benefits for non-payment of monthly premiums. This contention was based on Monumental's admitted practice of accepting premiums paid within sixty days after the end of a thirty-one (31) day grace period provided the insured was alive and apparently in good health. Brand tendered three monthly payments totaling $48.87, within the sixty-day period, but after the death of the insured, Bruce Brand. Monumental refused to accept the tender of payments and contended its actions were justified in that the condition for the extension, that the insured be alive and apparently in good health, was not met because Bruce Brand was not alive at the time of the tender.

On appeal, Brand was seeking to reverse a negative judgment claiming it to be contrary to law and the evidence. The Court of Appeals reversed the trial court and found that Brand was entitled to judgment in the amount of $10,000 with interest. Brand v. Monumental Life Ins. Co., (1979) Ind.App., 396 N.E.2d 417. The Court of Appeals acknowledged in its opinion that the standard for determining when a negative judgment will be overturned is: "A finding, which is, in effect, a negative finding against the plaintiff, may be set aside only if the evidence is uncontradicted and will support no reasonable inference in favor of the finding." Taxpayers Lobby of Indiana, Inc. v. Orr, (1974) 262 Ind. 92, 311 N.E.2d 814, 819. In determining whether a judgment is contrary to law we do not weigh the facts nor determine the credibility of the witnesses. This is the duty of the trier of fact. Where there is a conflict in the evidence, the trier of fact in the court below must resolve that conflict. Where the party having the burden receives a negative judgment by the trier of fact, we will not disturb that judgment if there is any evidence to support it or a reasonable inference to be drawn from any evidence in favor of it. Umbreit v. Chester B. Stem, Inc. (1978) Ind.App., 373 N.E.2d 1116. We find that the Court of Appeals violated the above standard in reversing the judgment of the trial court here, and further find that the Court of Appeals improperly applied the law to the facts presented to the trial court in making the finding that the judgment of the trial court was contrary to law. We therefore grant transfer, vacate the opinion of the Court of Appeals and affirm the trial court.

The Court of Appeals relied heavily on the stipulations entered into by both parties before trial. Those stipulations were as follows:

1. The premium payment book with attached receipt contains a true record of the dates of collection of premiums on the insurance policy.

5. Defendant's agents visited the home of Bruce Brand and Dorothy Brand on or about July 9, 1975, for the purpose of asking Bruce Brand and Dorothy Brand to pay the amount of premiums then overdue.

6. The amount of overdue premiums was at that time $48.87, for the months of May, June and July of 1975.

7. Defendant's agents, after meeting with Bruce Brand and Dorothy Brand, attempted to contact Bruce Brand's mother, Margaret Smith, for the purpose of asking her to pay the amount of said overdue premiums on behalf of Bruce Brand and Dorothy Brand.

8. Bruce Brand died on July 14, 1975.

9. Dorothy Brand tendered the amount of overdue premiums to defendant's agents on or about July 22, 1975.

10. Defendant's agents refused said tender.

11. Defendant has a practice or procedure whereby premium payments are accepted within 60 days of the expiration of the applicable grace period, provided defendant's agents receive at least verbal assurance that the insured is alive and apparently in good health.

12. Dorothy Brand had actual knowledge of defendant's practice or procedure set forth in stipulation No. 11.

13. The premium payment tendered by Dorothy Brand on or about July 22, 1975, would have been accepted by defendant's agents on behalf of defendant, if Bruce Brand had been alive and apparently well at that time.

There was other evidence before the trial court, in addition to these stipulations, that is pertinent to our opinion here.

The policy of insurance issued by Monumental was a basic life policy covering the deceased, Bruce L. Brand, and plaintiff-appellant, Dorothy I. Brand. The policy provided for a premium of $16.09 per month, payable in advance on the first day of its interval of premium payment, which date for the first premium is the date of issue, March 1, 1974. Bruce Brand was 21 years old at the date of issuance and died at the age of 22 years, on July 14, 1975. The policy further provided that any premium, other than the first, not paid when due may be paid within the grace period of thirty-one (31) days after its due date provided premiums have been paid to that date. Under paragraph IV of the policy, Monumental had the option of reinstating the policy after a lapse, after having received evidence of insurability satisfactory to the Company plus payment of overdue premiums and interest. Paragraph XII of the policy provides that the policy will lapse if a premium has not been paid when the grace period of thirty-one days ends. If the policy has no surrender value at the end of the grace period, the insurance will cease to be in force. Paragraph XII also sets out the method of calculation of the extended term insurance available, if any, at the time of lapse.

The policy issued to Brand here, had no cash value when the premiums were due and unpaid. This policy was issued on March 1, 1974, and the first payment was made on or about April 15, 1974. Thereafter, all payments were made when due or before the expiration of the grace period through January, 1975. The payment due February, 1975, was paid March 10, 1975, and the March and April payments due March 1, and April 1, respectively, were paid on April 16, 1975. Thereafter, no further payments were made or tendered until July 22, 1975, after the death of the insured. There was evidence that when the February 1975, payment was made on March 10, 1975, after the thirty-one day grace period had passed, that a representative of Monumental first inquired by phone and determined that Bruce Brand was alive and apparently in good health, before accepting said payment. There was evidence that the March and April payments which were paid on April 16, 1975, were not accepted by agents of Monumental until they had seen Bruce Brand in person and had determined that he was in good health.

Stipulation 12 of the stipulations of the parties, supra, states that Dorothy Brand had actual knowledge of Monumental's practice of accepting late payments as set out in Stipulation 11, supra, providing their agents received at least verbal assurance that the insured is alive and apparently in good health. There was evidence that Bruce Brand also had knowledge that he had no coverage and obtained that knowledge in the presence of his wife. There was testimony by witnesses Millett and Kreutzer, representatives of Monumental, that they were at the Brand home two days before the death of Bruce Brand, attempting to collect the premiums so that the policy might be reinstated. Their testimony was that they told Bruce Brand that his policy had lapsed and he no longer had coverage, but, if he paid the overdue premiums, his policy could be in effect again and his coverage would be continued. Their testimony was that Bruce Brand...