Claborn v. Washington National Ins. Co., 78682

• Decision Date: 23 January 1996
• Docket Number: No. 78682,78682
• Citation: 910 P.2d 1046,1996 OK 8
• Parties: Shirley CLABORN, as Personal Representative for the Estate of Robert E. Claborn, Deceased, Appellee, v. WASHINGTON NATIONAL INSURANCE COMPANY, an Illinois insurance corporation, Appellant.
• Court: Oklahoma Supreme Court

Page 1046

910 P.2d 1046

1996 OK 8

Shirley CLABORN, as Personal Representative for the Estate of Robert E. Claborn, Deceased, Appellee, v. WASHINGTON NATIONAL INSURANCE COMPANY, an Illinois insurance corporation, Appellant.

No. 78682.

Supreme Court of Oklahoma.

Jan. 23, 1996.

On Certiorari to the Court of Appeals, Oklahoma City, Division No. 4.

Arnold D. Fagin, Pamela Sue Holtzclaw, Michael L. Mullins and R. Amanda McInnis-Nixon Fagin & Fagin, Oklahoma City, for Appellee.

James W. Berry, James W. Rhodes and Don J. Gutteridge Jr., Kerr, Irvine, Rhodes and Able, Oklahoma City, for Appellant.

HARGRAVE, Justice.

Certiorari to Court of Appeals, Oklahoma Division IV, to review an unpublished order of the Court of Appeals. The issues addressed in the present matter is whether: (1) Claborn's evidence sufficiently supports a claim of breach of contract, in the face of Washington National's defense of misrepresentation; and (2) The trial court erred as a matter of law in submitting the bad faith claim to the jury.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

This matter arises out from a health insurance application with Washington National completed by Mr. Claborn on September 12, 1988. This new policy was to replace Mr. Claborn's then current policy with State Farm Insurance Company. When asked by the agent whether in the preceding five years he had been admitted to the hospital or treated for alcoholism, Claborn testified at deposition that when he was making the application he told the agent "not any more." When contacted by a representative of the insurance company by phone, calling to confirm the answers on the application, Claborn answered "no" to both questions. These statements were not true as, in the five years preceding the application, Claborn had been admitted twice to the hospital for a seizure disorder related to alcoholism, and had three times been treated for alcoholism. The insurance policy Mr. Claborn held with State Farm contained a rider excluding coverage for seizure disorders. Nevertheless, Claborn's negative answers to the medical questions on his application resulted in the issuance of a health insurance policy which was effective October 1, 1988.

In January of 1989, Claborn learned that he had oral cancer. With the advice and assistance of his brother-in-law, an experienced insurance agent, Claborn informed Washington National about the misrepresentations on his policy application. This letter was dated January 27, 1989. Washington National's underwriting rules called for the automatic rejection of an applicant who had been treated for alcoholism within the five-year interval preceding the application, and consequently, Claborn was informed at the end of March of 1989 that his policy was rescinded as a result of his misrepresentations, and premium refunded. Claborn then brought this action to recover actual and punitive damages in tort, based on insurer's bad faith in rescinding his policy. At trial, the jury returned a verdict for Claborn for $127,000.00 in actual damages and $110,000.00 in punitive damages.

On appeal to the Court of Appeals, the court reasoned that there was evidence in the record from which the jury could have found for Claborn on the contract claim. The court opined that the Washington National agent could have examined the existing State Farm policy which contained the seizure rider, thus Washington National would have been alerted to Claborn's problem with alcoholism. The Court of Appeals held that Washington National's reliance on Claborn's misrepresentations was not reasonable because of its failure to investigate, thus Washington National did not use reasonable diligence in discovering the alcoholism.

The Court of Appeals also concluded that the imposition of tort liability was inappropriate and the issue of bad faith should not have been submitted to the jury. The Court of Appeals determined that a bad faith claim could not lie as there was a legitimate dispute, and that an insurer clearly had the right to resist payment and litigate any claim to which there is a reasonable defense, since, under Oklahoma law, an insurer has the right to seek rescission of a health insurance policy procured under an application containing a single misrepresentation. The court held that actual damages were proven under the contract action were $77,000.00 concluding that the remaining $50,000.00 of actual damages and the $110,000.00 had to have a basis in the tort claim.

FALSE INFORMATION PROVIDED BY APPLICANT FOR HEALTH

INSURANCE POLICY, WHICH CONCEALED HIS HISTORY OF

ALCOHOL-RELATED SEIZURES AND TREATMENT FOR ALCOHOLISM,

AMOUNTED TO MISREPRESENTATION AND ENTITLED THE INSURER TO A

RESCISSION OF THE POLICY.

Uncontroverted evidence was presented at trial that the decedent, Claborn, made misrepresentations both at the time of the application and when reached by telephone by the insurance company to confirm the answers. These misrepresentations regarded his problems with alcohol. Uncontroverted evidence was also presented that had the insurance company known of these problems, no policy would have been issued to the decedent. Therefore, the trial court erred in not granting the Washington National's motion for directed verdict made at the close of the evidence.

36 O.S.1991, § 3609, grants insurer a right to rescind a policy if there are misrepresentations contained in the application and the misrepresentations are material to the risk assumed by the insurer under the policy. This provision applies if the insurer would not have issued the policy had it been aware of the actual fact misrepresented. ¹ Thus, in order for an insurer to escape liability under this section for misrepresentation in the application process, the insurer bears the burden of proof to show not only that the statements were untrue, but also that the misrepresentations were either fraudulent, material to the risks or hazards assumed by the insurer, and, in good faith, the insurer would not have issued the policy, or covered the hazard if the true facts had been known in the application. Failure to disclose a latent condition of which the person making application has no knowledge or reason to know does not constitute a defense to an action on the policy. Mass. Mut. Life Ins. Co. v. Allen, 416 P.2d 935 (Okl.1965); Farmers and Banker's Life Ins. Co. v. Lemon, 204 Okl. 218, 228 P.2d 634 (1951).

Where the evidence is conflicting as to either insured's state of health at the time of application, or the falsity of insured's statements in the application process, or the intent of the insured, the issues are properly tendered to the jury for resolution. Brunson v. Mid-Western Life Ins. Co., 547 P.2d 970 (Okl.1976); Atlas Life Ins. Co. v. Eastman, 320 P.2d 397 (Okl.1957). On review, if we find evidence in the record reasonably supporting the jury verdict on such questions, we are bound to affirm. Atlas Life Ins. Co. v. Eastman, 320 P.2d 397 (Okl.1957). We do not find such evidence in the record in this matter. There was evidence presented at trial showing that the misrepresentations made by Claborn were indeed a known falsity to Claborn, and that had Washington National known of these misrepresentations, the insurance company would not have issued the policy to Claborn. Therefore, we must reverse.

In Massachusetts Mutual Life Insurance Co. v. Allen, 416 P.2d 935, 940 (Okl.1966), this Court when faced with a similar question dealing with 36 O.S.1961, § 3609, relied upon the following sections of 29 Am.Jur., Insurance:

Sec. 698. * * * "A 'misrepresentation' in insurance is a statement as a fact of something which is untrue, and which the insured states with the knowledge that it is untrue and with an intent to deceive, or which he states positively as true without knowing it to be true, and which had a tendency to mislead, where such fact in either case is material to the risk."

Sec. 701. "Whether a life insurance policy would have been issued had true answers been given in the application cannot be left to the determination of the insurer after the death of the insured. The matter is not to be settled by the mere pronouncement of the company after the death has occurred, but the matter misrepresented must be of the character which the court could say would reasonably affect the insurer's judgment as to the matter of the risk and amount of premium."

Furthermore, the instant matter closely resembles Vaughn v. American National Ins. Co., 543 P.2d 1404 (Okl.1975). In Vaughn, the insured provided false information on a life insurance policy that concealed his history of emotional problems, including depression and treatment in the psychiatric ward at Baptist Hospital. The application in Vaughn specifically asked if he had any of the aforementioned problems and he answered in the negative. The insured claimed that since he listed his family physician in the application, the insurance company was put on notice on any problems that he might have had regarding the emotional problems. This Court, applying 36 O.S.1971, § 3609, held that the concealing of such information amounted to misrepresentation which was material to the acceptance of the risk on the life of the applicant. The insurer in Vaughn was entitled to rescission of the policy. Id. at 1407.

Claborn urges that we not consider Vaughn without also considering Brunson v. Mid-Western Life Ins. Co., 547 P.2d 970 (Okl.1976). Brunson, however is not controlling in the present case. In Brunson, the agent directed relevant questions governing kidney, gall bladder, female problems and pregnancy at the plaintiff's wife, then without waiting for a response, simply marked "no". The insured had not understood the question to apply to him. In the present case, Mr. Claborn was the only person in the room with the agent and could not have mistaken the questions as being asked to someone else. Furthermore, the present case differs from Brunson in that Claborn verified the...