Drummond Citizens Ins. Co. v. Sergeant
| Decision Date | 01 October 1979 |
| Docket Number | No. 78-206,78-206 |
| Citation | 588 S.W.2d 419,266 Ark. 611 |
| Parties | DRUMMOND CITIZENS INSURANCE COMPANY and Roller Funeral Home, Appellants, v. Chester SERGEANT, as Executor of the Estate of Dorothy Mae Miller, Deceased andElton Kirby and Alan Blevins d/b/a Kirby-Blevins Funeral Home, Appellees. |
| Court | Arkansas Supreme Court |
Poynter, Huckaba & Gearhart, Mountain Home, and Catlett & Stubblefield, Little Rock, for appellants.
Bailey & Paden and Engeler, Johnson & Sanders, Mountain Home, for appellees.
This appeal involves the proper contractual interpretation of three (3) burial certificates issued by the Baxter County Burial Association, and whether a restraining order should have been issued by the lower court to protect an alleged contractual right.
The material facts are undisputed. The Baxter County Burial Association issued certificate No. 11022A in the amount of $300.00 to Dorothy Mae Miller, and later issued certificate No. 11950 in the amount of $500.00 to Pauline Iris Walton, and certificate No. 12067 in the amount of $500.00 to John E. Beam. The burial certificates state that they are subject to the burial association by-laws, which are fully reproduced in the Miller certificate, and a general summary of the by-laws are reproduced in the Walton and Beam certificates. The by-laws as set forth in the Miller certificate are different from those set forth in the Walton and Beam certificates.
On May 25, 1973, the Baxter County Burial Association entered into a reinsurance contract, under the terms of which all existing burial certificates issued by Baxter County Burial Association were transferred to the appellant, Drummond Citizens Insurance Company, which assumed all contractual liability thereunder. Drummond Citizens Insurance Company had selected the appellant, Roller Funeral Home of Mountain Home, Arkansas, to furnish the funeral services and supplies. Both appellants have essentially common ownership and officers, and a common telephone number in Mountain Home, Arkansas.
On December 25, 1976, Dorothy Mae Miller died and the appellants were notified by Kirby-Blevins Funeral Home that Kirby-Blevins Funeral Home had been selected by the family of the deceased to handle the funeral, and they were asked if any benefits under the $300.00 burial certificate would be provided. The appellants responded that no services or merchandise would be provided unless Roller Funeral Home was allowed to furnish the entire funeral services and merchandise. Kirby-Blevins Funeral Home then proceeded with the funeral arrangements.
On June 25, 1977, John E. Beam died, and on July 20, 1977, Pauline Iris Walton died. Notice of each death was given by Kirby-Blevins Funeral Home to the appellants, who again refused to provide any services or merchandise unless Roller Funeral Home provided the entire funeral services and merchandise. Kirby-Blevins Funeral Home again proceeded with the funeral arrangements.
The appellant, Drummond Citizens Insurance Company, filed a petition in interpleader and tendered into the lower court $400.00 on an insurance policy which is not in issue and named the two appellees as respondents. The appellee, Chester Sergeant, as executor of the estate of Dorothy Mae Miller counterclaimed for $300.00 on the Miller burial certificate and the appellees, Elton Kirby and Alan Blevins d/b/a Kirby-Blevins Funeral Home, as assignees of the Walton and Beam burial certificates counterclaimed for $500.00 on each of those certificates. The appellant, Drummond Citizens Insurance Company prayed for injunctive relief restraining Kirby-Blevins Funeral Home from advertising that it would give credit on all burial insurance policies, regardless of the company with which the policy was carried. The appellant, Roller Funeral Home, intervened in the case, and adopted the pleadings of Drummond Citizens Insurance Company.
The lower court in its decree, dated October 26, 1977, referring only to the wording contained in the Miller burial certificate, found nothing in the certificates which provided that the burial association was not required to furnish benefits under the certificates unless it was allowed to furnish all of the funeral services through a director of its choice. It further found that the appellant, Drummond Citizens Insurance Company was not required to pay cash under these certificates to be used in purchasing services or merchandise from a funeral director not approved by the appellant, but having failed to furnish merchandise or services through its approved undertaker as provided in the certificate of a value equal to their face amounts, it was liable in cash for the face amounts of the certificates. The lower court also denied any injunctive relief finding that appellants had failed to show by a preponderance of the evidence that the appellee, Kirby-Blevins Funeral Home, performed acts constituting unfair competition which resulted in any damage to the appellants.
The appellants have raised two points for reversal. First, the appellants contend that cash cannot be recovered under a burial certificate providing for a funeral service where the funeral service is tendered as provided in the contract; and secondly, that Kirby-Blevins Funeral Home should be enjoined from advertising that it will give full credit on burial certificates where the appellant, Roller Funeral Home, is designated to provide the funeral service.
The first contention must be placed in the context of the specific provisions of the three (3) burial certificates. The material portion of the by-laws in the Miller certificate reads as follows:
"4. When a member dies, the person in charge of the body shall at once notify the Secretary-Treasurer, who shall furnish the service and casket through an undertaker of his choice.
5. All members shall receive funeral, including services and casket in the amount specified in the class in which they held their benefit certificates.
The services and casket to members holding benefit certificates with the Baxter County Burial Association, shall be up to the standard of, and in keeping with the services and casket sold at similar prices by licensed embalmers and funeral directors of this and other towns in this territory. The funeral services to be furnished by this Association do not include any payment for any burial lot in any cemetery.
(a) If more expensive funeral than that furnished by the Association is desired, it may be arranged by the family of the deceased and the member's benefit applied on payment of same.
(b) The relatives in charge shall have the privilege of embalming, selecting clothing and casket, or any other merchandise or service of the funeral director."
In the Beam and Walton certificates, the material portion of the by-laws of the association contain the following language:
We need not decide whether the apparent change in the association by-laws between the date of the issuance of the Miller burial certificate and the Beam and Walton burial certificates was binding on Dorothy Mae Miller, as that decision is not necessary...
To continue reading
Request your trial
-
Woods Masonry, Inc. v. Monumental General Cas., C01-4045-MWB.
...to the insurer, the one favorable to the insured will be adopted." Deal, 889 S.W.2d at 776 (citing Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979), and see also Farm Bureau Mut. Ins. Co. v. Milburn, 269 Ark. 384, 601 S.W.2d 841 (1980)); accord Southern Farm Burea......
-
Home Indem. Co. v. City of Marianna, 86-194
...Ambiguous provisions are to be construed most strongly against the insurer, which drafts the policy. Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979); State Farm Mutual Auto Ins. Co. v. Traylor, 263 Ark. 92, 562 S.W.2d 595 Whether we view the endorsement and the p......
-
Unigard Sec. Ins. Co. v. Murphy Oil USA, Inc., 96-843
...we accept an interpretation favorable to the insured. Nationwide Mut. Ins. Co. v. Worthey, supra; Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979). Yet, inexplicably, the majority refrains from finding any connection between the petroleum spills and the breach of ......
-
Estate of Sodorff v. United Southern Assur. Co.
...insured will be adopted if there is doubt or uncertainty as to the meaning of such language. Id. (citing Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419, 423 (1979)). In this instance, the plain language of the policy extends coverage for the liabilities of Sodorff. The......