David M. Keefe v. Fraternal Protective Insurance Co.

• Decision Date: 03 November 1934
• Citation: 176 A. 305,107 Vt. 99
• Parties: DAVID M. KEEFE v. FRATERNAL PROTECTIVE INSURANCE COMPANY ET AL
• Court: Vermont Supreme Court

176 A. 305

107 Vt. 99

DAVID M. KEEFE v. FRATERNAL PROTECTIVE INSURANCE COMPANY ET AL

Supreme Court of Vermont

November 3, 1934

Special Term at Rutland, November, 1934.

Accord and Satisfaction---Effect of Accepting Less Than Amount Claimed Due of Disputed or Unliquidated Claim Offered in Full Settlement---Insurance---Effect of Retention of Amount Paid in Full Settlement Though Demanding Further Payment---Abatement and Revival.

1. Where one who has a disputed or unliquidated claim against another accepts and retains a less amount than he claims is due, which is offered by other in full settlement of claim it operates as an accord and satisfaction of such claim.

2. Where there was dispute between accident insurance company and person holding policy of insurance therein as to amount due insured on account of disability because of their different claims as to length of period of disability insured's acceptance of check sent in settlement for amount claimed to be due by insurer and retention of its proceeds, held to constitute accord and satisfaction, though insured wrote to insurer demanding payment of further amount since insured could not thus escape legal effect of his acceptance.

3. Where name of insurance company was changed after issuance of accident policy, and action was brought on policy naming both companies as defendants, held that it was not necessary on motion to dismiss action against original company, since two companies were one, and there was really but one defendant and judgment in cause would be conclusive as regards plaintiff's claim against it, whether designated by one name or other.

ACTION OF CONTRACT on accident insurance policy. Pleas, general issue, nul tiel corporation as to Fraternal Protective Insurance Company, and accord and satisfaction. Trial by jury in Rutland municipal court, Milford K. Smith, Municipal Judge, presiding. Verdict and judgment for the plaintiff against both defendants, Fraternal Protective Insurance Co., and Massachusetts Indemnity Insurance Company, the latter being the same as former by reason of change of former's corporate name. The defendant Massachusetts Indemnity Insurance Company excepted. The opinion states the case. Judgment reversed, and judgment for defendant.

Judgment reversed, and judgment for the defendant to recover its costs.

Clayton H. Kinney for the defendant.

Novak & Bloomer for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

MOULTON

This is an action of contract upon a policy of accident insurance. Verdict and judgment below were for the plaintiff and the cause has come before us upon the defendant's exceptions.

The policy was issued to the plaintiff on July 21, 1931, by the Fraternal Protective Insurance Company. On or about November 18, 1931, the name of the insurer was changed to the Massachusetts Indemnity Insurance Company. On or about May 6 1932, the plaintiff received an accidental injury, and made proof thereof to the insurer. Payments for six weeks total disability at $ 25 a week (the sum provided in the policy) were made to him, but thereafter a dispute arose concerning the duration of the disability. The plaintiff asserted that it lasted 15 weeks, and that there was the sum of $ 225 still due to him, while the defendant maintained that the period was 9 weeks only, leaving a final payment of $ 75.

On September 6, the defendant wrote to the plaintiff calling his attention to the facts upon which it was claimed that his total disability had ceased, and concluding as follows "We therefore advise that we have approved as a final and total adjustment in your case, indemnity for 9 elapsed weeks, amounting to the sum of $ 225.00. Deducting $ 150.00, which was advanced to you pending your disability, we enclose check herewith for a balance of $ 75.00." The enclosed check for this amount stated upon its face "in full payment for claim No. 87217," and on the back, just above the line for indorsement, was printed: "The endorser hereby acknowledges receipt of the within named amount for the purpose designated on the...