Citizens State Bank v. Travelers Indem. Co.
| Citation | 96 N.W.2d 834,7 Wis.2d 451 |
| Parties | CITIZENS STATE BANK, a Wis. banking corporation, Appellant, v. TRAVELERS INDEMNITY CO., a foreign insurance corporation, Respondent. |
| Decision Date | 02 June 1959 |
| Court | Wisconsin Supreme Court |
Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, Paul D. Hilton, Lee Nutt, Wausau, of counsel, for appellant.
Gorman & Gorman, Wausau, for respondent.
At the trial it was stipulated that, if the three cancelled policies were not subject to a retrospective premium adjustment, the amount of the unearned short term premiums due thereon at time of cancellation would exceed the amount due on the note which the borrower insured had executed to the plaintiff bank. It is the contention of the plaintiff that the defendant insurance company had by contract estopped itself from introducing any evidence establishing that the policies were subject to a retrospective premium audit and adjustment. This the defendant denies. It is the further position of the defendant that the evidence introduced by the plaintiff failed to prove a cause of action.
The insured to whom the three policies in question were issued is the Clintonville Transfer Lines, Inc., a common motor carrier hereinafter referred to as 'Clintonville.' The term for which all three policies were issued was for one year commencing February 1, 1955. The types of policies, and the original premiums for each were as follows:
Workmen's compensation $3,585.00
General liability 341.08
Public liability and property damage 8,813.90
Total original premiums $12,739.98
Clintonville made a downpayment of $4,841.95 on such premiums and borrowed $7,898 from the plaintiff bank with which to pay the remaining balance. A 'Stevens Plan' note was executed by Clintonville to the bank for such loan in the sum of $8,062.55, which amount included $164.55 of interest. The note provided that such sum of $8,062.55 was payable in nine monthly instalments.
A 'Stevens Plan' note is a special copyrighted form of secured note designed to enable banks to finance loans for insurance premiums with safety. Such safety consists in the fact that under the plan any return premiums, or losses payable to the insured, are pledged as security, and the amount of the loan owing at any time is not to exceed the amount of return or unearned premiums. A description of the policies, the premiums of which are being partially financed by the loan, is stated on the face of the note in blanks provided for such purpose. Such description includes the name of the insurance company, the policy number, the premium, the kind of coverage, the date of the policy, the term, and the expiration date. The security clause of the note appears below such description and provides as follows:
'As security for the indebtedness evidenced hereby, the undersigned insured hereby assigns to the bank any and all sums which may be or become payable to the undersigned insured in connection with or on account of said policy, including:
'(a) Any return premium which may become due under the said policy, other than from cancellation; and
'(b) Any unearned premium which may become due on account of cancellation of said policy at any time by the undersigned insured, the bank, or the insurance company; and
'(c) Any payment on account of loss which reduces or voids the unearned premium of the policy, subject however to all mortgage interest, if any.'
The note also contains a clause which directs and authorizes the insurance company issuing the policies to make all payments of return premiums and losses to the bank. Below the place provided on the face of the note for the signature of the borrower insured appears a notice to the insurance company or companies which have issued the described policies. Such notice on the face of the instant note read as follows:
'To the Insurance Companies mentioned in the foregoing table:
'Notice is hereby given you that we are financing the premium(s) on the above described policy(ies) and/or bond(s), and your attention is directed to the terms thereof. The above mentioned insured(s) have properly executed in our favor the original of the above note and assignment.
'We will issue check(s) to the order of the agent(s) noted below in payment of the premium(s) above mentioned and shall forward same to said agent(s) within forty-five (45) days from date of policy(ies) and/or bond(s) unless you instruct us prior thereto to issue said check(s) to your order and forward same to you.
'If the above mentioned policy(ies) and/or bond(s) issued by you or your agents to the maker of the foregoing note differ in any way from the above description thereof, will you kindly advise us as promptly as possible.
'G. S. Vassau Ins. Agency/Insurance Agent
Citizens State Bank'
Before advancing the $7,898 on the note, the bank forwarded to the defendant by mail a duplicate copy of the note bearing the aforequoted notice together with a printed form of acknowledgment thereof to sign and return. The defendant completed such acknowledgment and returned it to the bank. In such acknowledgment the defendant took no exception to the description of the three policies appearing on the face of the note, which description set forth the respective premiums payable in dollars with no mention that such premiums were subject to audit and retrospective adjustment. Such acknowledgment also bound the defendant to make any payment of returned premiums or losses directly to the bank. After receipt of such acknowledgment the bank advanced the $7,898 which was paid to defendant's agent to cover the balance of original premiums due.
Thereafter, Clintonville made three monthly instalment payments of $895.84 each to the plaintiff bank. Clintonville then went into receivership and no further payments were made. Notice of default was given by the plaintiff to the defendant which had the effect of cancelling the policies. The plaintiff requested the defendant to pay over to it the amount of the short term unearned premiums. The defendant refused on the ground that the policies were subject to a retrospective premium adjustment, which adjustment had extinguished any short term unearned premiums.
It is significant that the policies themselves were not pledged by Clintonville to the plaintiff bank but only certain payments that might accrue to Clintonville thereunder. One Koch, the officer of the plaintiff bank who handled this particular loan, testified that the bank never saw the three policies described in the note. Koch further testified that it was not customary for the bank in making these 'Stevens Plan' loans to have the policies in the bank's possession. By a paragraph in the face of the note, Clintonville acknowledged receipt of the policies. Under these facts, and the wording of the acknowledgment executed by the defendant and returned to the bank, we determine that there was no duty on the part of the bank to request an inspection of the policies as a condition precedent to advancing the money on the note.
We further hold that the forwarding of the duplicate copy of the note bearing the notice to the defendant, and the return of the executed acknowledgment by the defendant, created a contractual relationship between the defendant and the plaintiff bank. The consideration for any express or implied promise on the part of the defendant, which resulted from...
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