Eakins v. New England Mut. Life Ins. Co.

• Decision Date: 27 December 1984
• Docket Number: No. 83-2418,83-2418
• Citation: 85 Ill.Dec. 71,130 Ill.App.3d 65,473 N.E.2d 439
• Parties: , 85 Ill.Dec. 71 Mildred EAKINS, Plaintiff-Appellant, v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 439

473 N.E.2d 439

130 Ill.App.3d 65, 85 Ill.Dec. 71

Mildred EAKINS, Plaintiff-Appellant, v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.

No. 83-2418.

Appellate Court of Illinois First District, Fourth Division.

Dec. 27, 1984.

Robert A. Armstrong, Jr., Chicago, for plaintiff-appellant.

Peterson, Ross, Schloerb & Seidel, Chicago (J. Robert Geiman and Robert A. Seidel, Chicago, of counsel), for defendant-appellee.

ROMITI, Justice:

Plaintiff Mildred Eakins (Mildred) appeals from the order of the circuit court of Cook County which entered summary judgment in favor of defendant New England Mutual Life Insurance Co. (New England Life) upon her petition for a declaratory judgment that the life insurance policy of Mildred's late husband, Miles, was still in full force and effect and had not terminated for non-payment of premiums. The sole issue presented for our review is the propriety of the trial court's judgment.

We affirm.

The documents of record reflect the following facts: Mildred was the designated beneficiary of a policy issued by New England Life on the life of her husband. The policy had an issuance date of October 1, 1976. Miles' application had been solicited by Ira Goldstein, who had been licensed as a soliciting agent of New England Life since 1963 and was the individual to whom Miles sent his premium payments.

On October 1, 1980, when the premium on the policy came due, Miles was unable to make the payment. Pursuant to the terms of the policy, full coverage was extended to December 31, 1980, whereupon this coverage terminated for non-payment of premiums. Under the terms of the policy extended term insurance coverage was provided from January 1, 1981 to February 11, 1981. The policy terminated and was of no value as of February 11, 1981. Under its terms and provisions, reinstatement could be obtained only during the lifetime of the insured, and only upon satisfaction of the following conditions: (1) current evidence of insurability satisfactory to New England Life; (2) payment of all overdue premiums with interest at 6% per annum compounded annually; and (3) repayment of any policy loans outstanding at the time of default, with loan interest compounded annually to date of reinstatement. New England Life and Goldstein each sent Miles separate notices of policy lapse in March 1981. All correspondence was sent to Miles' office address.

On October 29, 1981, Miles began hospitalization for a heart attack and stroke. Mildred discovered the insurance correspondence while going through his papers at his office. She had no prior knowledge of any such policy. Mildred found, in addition to the correspondence regarding policy lapse, two letters from Goldstein to Miles dated October 9, 1981 and October 15, 1981 respectively. Each letter contained the heading "minimum deposit worksheet" and advised Miles of the premium amount "due now" on the policy. The October 15 letter was a revised worksheet and advised that the figures shown on the October 9 letter were "in error" and stated the "correct" figures. The minimum required cash premium payment shown on the October 15 letter was $1,048.90. Neither letter referred to the policy's termination or to procedures to be followed in order to reinstate the policy.

Mildred telephoned Goldstein shortly after she discovered this correspondence, asking what she could do about payment of the premiums. According to Goldstein, he told her that he did not know to what policy premium notices she was referring and that he believed the policy had already terminated for non-payment of premiums. He advised her, however, to do as instructed in the letters and stated that he would check into the matter. According to Goldstein, at no time during the conversation did he represent that the policy would be reinstated upon payment or that the policy was in force or would be placed in force upon payment, nor did he make any offers for coverage or reinstatement of the policy or propose any alteration or modification of the terms and conditions of the policy. He further stated that the minimum deposit worksheets were sent in error by a temporary secretary during a period when Goldstein was absent from the office and undergoing hospitalization and convalescence because of an automobile accident.

Mildred could recall little of her telephone conversation with Goldstein. She could not recall any discussion regarding the status of the policy or whether the policy was in force or could be reinstated. Mildred's son, Kevin, stated that he telephoned Goldstein regarding the minimum deposit worksheet correspondence on October 29 and was told by Goldstein "to get it [the premium payment] as soon as possible."

On November 5, following the telephone conversations, Mildred tendered a check in the amount of $1,048.90 to Goldstein. On or about November 11, Mildred informed Goldstein that Miles had died on November 9. Goldstein met with his general agent on November 11 or 12, at which time the status of the Eakins policy was reviewed. Because it was determined that the policy had terminated more than eight months previously, Mildred's check was not negotiated but was returned to her by the general agent as enclosure to a letter to her dated November 12 stating that the check could not be accepted because the policy had terminated.

The parties filed cross-motions for summary judgment based upon the pleadings; depositions and affidavits of Mildred and Goldstein; the affidavit of Pauline Belisle, Assistant Vice President of New England Life; the affidavit of Kevin and Mildred's answers to interrogatories. The trial court granted New England Life's motion for summary judgment on September 16, 1983. Mildred's notice of appeal was timely filed.

Mildred argues first that the trial court should have denied summary judgment because there was a genuine dispute between the parties regarding the circumstances under which Goldstein instructed Mildred to deliver the premium payment in late October and under which he received that payment from her in early November. Mildred contends that this disputed factual issue would have a bearing on whether her tender of the premiums and Goldstein's receipt thereof reinstated the policy. We disagree.

Summary judgment is appropriate where "the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill.Rev.Stat.1981, ch. 110, par. 2-1005(c).) These documents must be strictly construed against the moving party (McCarthy v. Johnson (1983), 122 Ill.App.3d 104, 107, 77 Ill.Dec. 458, 460 N.E.2d 762), and the reasonable inferences therefrom construed in favor of the party who opposes summary judgment. (Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill.App.3d 215, 218-19, 52 Ill.Dec. 678, 422 N.E.2d 879.) The remedy is appropriate only when the right of the movant thereto is clear and free from doubt. (Duffy v. Midlothian Country Club (1980), 92 Ill.App.3d 193, 197, 47 Ill.Dec. 786, 415 N.E.2d 1099.) Only facts related to material issues are relevant; facts unrelated to essential issues are "immaterial," and no matter how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. (Equity General Insurance Co. v. Patis (1983), 119 Ill.App.3d 232, 236, 74 Ill.Dec. 846, 456 N.E.2d 348.) A court of review may affirm the summary judgment of a trial court whenever the facts in the record support the lower court's decision (Sentry Insurance Co. v. S & L Home Heating Co. (1980), 91 Ill.App.3d 687, 691, 47 Ill.Dec. 102, 414 N.E.2d 1218); the court need not strain to adduce some remote factual possibility that will defeat the motion. Erasmus v. Chicago Housing Authority (1980), 86 Ill.App.3d 142, 145, 41 Ill.Dec. 533, 407 N.E.2d 1031.

Here, Mildred claims that she presented sufficient evidence to draw into dispute the circumstances under which Goldstein told her to deliver the premium payment in late October and under which he received that payment from her in early November. Mildred contends that the facts controvert whether Goldstein "o...