Burckhardt v. General Am. Life Ins. Co.
| Decision Date | 09 December 1975 |
| Docket Number | No. 35586,35586 |
| Citation | 534 S.W.2d 57 |
| Parties | Bernice BURCKHARDT, Appellant, v. GENERAL AMERICAN LIFE INSURANCE Co. et al., Respondents. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Mogab, Hughes & Green, Inc., Richard L. Hughes, St. Louis, for appellant.
Kortenhof & Ely, Joseph M. Kortenhof, Frank E. Strzelec, St. Louis, for respondents.
Bernice Burckhardt, plaintiff-appellant (hereinafter plaintiff), appeals from the action of the trial court sustaining separate motions of defendant-respondents, General American Life Insurance Company (hereinafter General American) and McDonnell-Douglas Corporation (hereinafter McDonnell) to dismiss her Second Amended Petition for failure to state a claim and entering judgment dismissing her petition. We reverse and remand.
Plaintiff's Second Amended Petition was in three counts. In Count I General American is the sole defendant. Plaintiff alleged that she is the widow of Andrew Burckhardt who, during his lifetime, had been an employee of McDonnell; that in the fall of 1968 General American began negotiations with McDonnell to enter into a group life insurance contract whereby optional additional life insurance benefits would be provided for salaried employees of McDonnell. She further alleged that although all of the terms of the group policy had not been finalized, in March of 1969 General American and McDonnell agreed to offer optional additional life insurance benefits to McDonnell's salaried employees; that General American, in conjunction with its agent, McDonnell, prepared and submitted to her husband, Andrew Burckhardt, and other salaried employees of McDonnell, an 'offering brochure' outlining the terms and conditions of the optional additional life insurance and further advised her husband and other salaried employees of McDonnell that to become members of the insurance group, membership had to be accepted by April 7, 1969, the effective date of the 'new program.' The 'offering brochure,' a memorandum dated March 14, 1969, was attached to plaintiff's petition, marked 'Exhibit 'A" and incorporated by reference into the Second Amended Petition. This document 'Memo No. JHG--150
on a McDonnell letterhead, reads as follows:
14 March 1969
To: All Salaried Employes of MCAIR, MCAUTO, MDACED and MDC Corporate Offices-St. Louis
1. As a salaried employee, you are eligible under this new program, which becomes effective 7 April 1969, to purchase an additional amount of life insurance and accidental death and dismemberment benefits equal to the amount provided at no cost to you, by your basic program. Purchase of this additional insurance will also make you eligible for post-retirement life insurance. You additional life and accidental death and dismemberment benefits cannot be more or less than the amount of your basic life insurance.
2. Your contribution of 66cents per thousand per month prior to retirement will be deducted in equal payments from each of the first two paychecks of the month.
3. If you retire under the McDonnell Douglas Retirement Income Plan, you will be entitled to post-retirement life insurance, provided you enroll in the additional insurance of the plan during this period. Upon retirement, 80% of the additional life insurance benefit prior to retirement will be continued; on the first anniversary of your retirement, 60% of this benefit will be continued; and beginning with the second anniversary of your retirement, 50% will be continued, which is your Lifetime Continued Amount. Your accidental death and dismemberment benefit ceases at retirement or at age 65 whichever occurs first. At retirement, your contribution of $1.50 per thousand per month based on Lifetime Continued Amount will be deducted from your monthly pension check.
4. You are urged to purchase the additional insurance made available to you.
5. The attached enrollment card should be completed indicating authorization of the deduction or rejection and returned to your supervisor promptly. No enrollment card received after 7 April 1969, will be accepted without evidence of insurability, unless you were on an authorized leave or vacation during the enrollment period. Your additional life insurance will be equal to the amount of basic life insurance shown on the enrollment card.
6. The beneficiary for your additional life insurance will be the same as on your basis life insurance.
(signed) J. H. Cinnater
J. H. Cinnater
Treasurer'
Exhibit 'B', the enrollment card, reads as follows:
'McDonnell Douglas Corporation Salaried Employees
Additional Group Life Insurance Enrollment Card
I ACCEPT the additional amount of life and accidental death and dismemberment insurance to which my current base rate or, if changed, my future base rate of pay may entitle me to under the group life insurance plan offered by the company and authorize the company to deduct from my pay such amounts as are now or may in the future be required of me for such insurance.
_ _
Employe signature
_ _
Date
I DO NOT ACCEPT the additional life and accidental death and dismemberment insurance offered by McDonnell Douglas Corporation and if I make my future request for the additional group life accidental dental death and dismemberment insurance I may be required to show evidence of insurability to the insurance company.
I also understand that by rejecting the additional insurance I will not be eligible to receive life insurance after retirement through the salaried retirement life insurance program.
_ _
Employe signature
_ _
Date
Appellant further alleged that her husband accepted General American's offer and thereby became a member of the insured group by signing and returning Exhibit 'B'--the enrollment card--to General American or its agent McDonnell before he died and paid the required premium to General American's agent, McDonnell; that Andrew Burckhardt died on April 13, 1969; and that she, as beneficiary under the terms of her husband's optional additional group life contract has performed all conditions precedent to payment under the terms of the group insurance contract, 'the terms of which are set out in Exhibits 'A' and 'B';' that she has often demanded that General American pay her the principal sum due under the contract, but General American has refused and continues to refuse to pay all or any part of the $20,000.00 insurance proceeds. She prayed judgment against General American for $20,000.00 together with her costs.
Count II of plaintiff's Second Amended Petition pled, in the alternative, and incorporated by reference all of the allegations of Count I except those contained in paragraph 5 of that Count. 1 Plaintiff then further averred that in March of 1969 General American, acting through and in conjunction with McDonnell, its agent, and pursuant to the provisions of a draft 'master' agreement with McDonnell 'dated November, 1968,' offered optional additional life insurance to salaried employees of McDonnell by the 'offering brochures,' Exhibit A, which set out the terms of the insurance; and directed the employees accept or reject the offer by signing Exhibit B, the enrollment card. A copy of the 'draft' master agreement was attached to the petition as 'Exhibit 'C" and incorporated by reference therein. Plaintiff further alleged that pursuant to the provisions of the 'offering brochure' her husband accepted the offer by signing and returning the enrollment card to General American's agent, McDonnell; that the return to work clause in the draft master agreement was never communicated to her husband nor was it mentioned in the 'offering brochure;' that General American and McDonnell, with full knowledge of the fact that her husband was then in poor health and not working, nevertheless failed and neglected to advise him that the draft of the master agreement contained a return to work clause requiring group members to return to work before becoming eligible for life insurance benefits under the contract, or that the 'offering brochure' was not consistent with the draft master contract in this respect, or that although he could become a member of the insured group by accepting General American's offer and paying the required premium, the policy benefits would nevertheless not take effect until he had returned to work; that thereby General American is estopped to raise the return to work clause as a defense to its obligation to make payment of the group benefits to plaintiff. She further alleged full performance of all conditions precedent to receiving payment under the terms of the policy, her demand for payment on a number of occasions, and the refusal of General American to pay all or any part of the principal amount of the policy, to-wit: $20,000.00, and seeks judgment in that amount from General American.
Count III of the Second Amended Petition alleged that plaintiff was the widow of Andrew Burckhardt; that he was a salaried employee of McDonnell who died on April 13, 1969; and that she was the third party beneficiary under an agreement between McDonnell and Mr. Burckhardt, the terms of which are set out in the 'offering brochure' and the enrollment card which were attached to her Second Amended Petition as 'Exhibits 'A' and 'B" and incorporated therein by reference; that McDonnell, acting as the alleged agent of General American, but in reality an undisclosed principal, 'subsequently' prepared and submitted to plaintiff's husband a proposal outlining the terms and conditions of an offer to provide life insurance benefits for him; that McDonnell advised 'decedent' that he was to accept or reject the offer by signing the enrollment card; that Mr. Burckhardt accepted McDonnell's offer by signing and returning the enrollment card to McDonnell before he died and paid the required premium to McDonnell...
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