Heinert v. Home Federal Sav. and Loan Ass'n of Sioux Falls, 16485

Citation444 N.W.2d 718
Decision Date02 August 1989
Docket NumberNo. 16485,16485
PartiesMargo HEINERT, Plaintiff and Appellee, v. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF SIOUX FALLS, Successor to 1st Dakota Home Savings and Loan Association, Defendant and Appellant.
CourtSupreme Court of South Dakota

Charles Rick Johnson of Johnson, Eklund & Davis, Gregory, for plaintiff and appellee.

Mark V. Meierhenry of Meierhenry & Meierhenry, G.J. Danforth, Jr. of Danforth, Danforth & Johnson, Sioux Falls, for Home Federal Sav. and Loan Ass'n, appellant.

WUEST, Chief Justice.

Appellee, Margo Heinert (Margo), brought an action against appellant, Home Federal Savings and Loan Association (Home Federal), alleging that Home Federal had failed to provide credit life insurance to her and her now deceased husband, Harold Heinert (Harold), pursuant to an insurance provision in a loan disclosure statement. After a jury returned a verdict favoring Margo, the trial court entered a judgment against Home Federal, ordering it to pay Margo the sum of $40,186.79 plus interest and costs in the amount of $24,899.12. We affirm the trial court's decision.

On April 3, 1978, Margo and Harold met with Robert Carr (Carr), a loan officer at First Dakota Home Savings and Loan (First Dakota) * in Winner, South Dakota. The purpose of this meeting was to close a loan which Margo and Harold had obtained from First Dakota so that they could purchase a home in Mission, South Dakota. Margo and Harold signed a variety of documents, including a promissory note and a real estate mortgage. After signing these documents, they were presented a loan disclosure statement which later constituted the basis for Margo's claim. This disclosure statement had two parts. The first part provided Margo and Harold with notice of the credit terms, thereby complying with the Truth in Lending Act. See 15 U.S.C. Sec. 1601, et seq. (1982). The second part of the disclosure statement regarded property and "other" insurance. Under the heading of "OTHER INSURANCE," the document stated:

Credit life, accident, health or loss of income insurance is not required to obtain this loan. No charge is made for such insurance and no such insurance is provided unless the borrower signs the appropriate statement below.

Credit life (Mortgage balance) is available at a cost of $ 8.80 for the each month year term of the initial policy.

(type of insurance)

I desire assume other for now insurance coverage.

4/3/78 (s) Harold Heinert

Date Signature

I DO NOT desire such insurance coverage.

4/3/78 ____________________

Date Signature

The words "assume other for now" were hand written and were admittedly placed in the blank by Carr. However, there was some dispute as to when those words were placed in the blank. Home Federal alleges that those words were written into the blank before Harold signed beneath it. Margo, however, contends that those words were not present when Harold signed the document.

At the loan closing, Harold indicated to Carr that he and Margo would assume the previous home owners' casualty insurance until they could obtain their own. Harold subsequently informed Carr that such casualty insurance had been obtained.

The Heinert's started making monthly payments in the total amount of $426. The monthly mortgage payment, in and of itself, constituted $352.11 of this total amount. Payments for interest and escrow were added on to the monthly mortgage payment. The Heinerts received an annual statement of their loan account which listed payments made on principal, interest and escrow. No charge was shown for credit life insurance.

In 1984, Harold was diagnosed as having cancer. Shortly thereafter, Margo inquired about processing a claim to obtain the proceeds from the credit life insurance. Home Federal indicated to her that no such insurance was in effect. When Harold died on February 13, 1985, the outstanding balance on the mortgage was $40,186.79.

On appeal, Home Federal essentially contends that the issue to be resolved in this case is whether a contract for insurance had been created between the parties. Home Federal has argued to this court that such a contract can not possibly exist under the circumstances of this case because the requisite elements for a contract to insure, as provided by SDCL 52-11-2, are not present. We agree with Home Federal in that we do not believe a "contract for insurance" had been created. This, however, is not to say that a contract did not exist at all between the parties. We believe that a contract was, in fact, created between the parties in which Home Federal agreed to procure credit life insurance for Harold Heinert in exchange for his acceptance of the obligation to pay the premiums for such insurance.

According to South Dakota law, a contract is an agreement to do or not to do a certain thing. SDCL 53-1-1. Elements that are essential to the existence of a contract are as follows: (1) parties capable of contracting; (2) their consent; (3) a lawful object; and, (4) sufficient cause or consideration. SDCL 53-1-2. Elements one and three are clearly present in this case and can be disposed of without discussion. Elements two and four, however, are not as clear, and hence the establishment of these two elements requires some discussion.

As to the element of consent, we believe that Home Federal, through the "other insurance" clause, essentially agreed to procure credit life insurance for Harold if Harold would sign a particular statement, thus obligating himself to pay for such insurance. The "other insurance" clause states that "no charge is made for such insurance and no such insurance is provided unless the borrower signs the appropriate statement." The clear import of this language is that the borrower (Harold) would be provided and charged for "such" insurance if he signed the appropriate statement. Since Harold signed the appropriate statement, one would naturally conclude that Home Federal then had an obligation to procure "such" insurance.

This court does not deny that some portions of this contract are unclear and ambiguous. The second sentence of the "other insurance" clause, noted in the preceding paragraph, is particularly unclear in that it does not specifically state which such insurance would be provided if the borrower signed the appropriate statement. The first sentence of the "other insurance" clause lists four different types of insurance that could be provided, including credit life insurance. A contract, however, must be construed as a whole, and not just a detached portion of it. Johnson v. Johnson, 291 N.W.2d 776 (S.D.1980); City of Sioux Falls v. Henry Carlson Co., Inc., 258 N.W.2d 676 (S.D.1977); Bedell v. Steele, 71 S.D. 609, 28 N.W.2d 369 (1947). The final sentence of the "other insurance" clause specifically notes the premium costs for credit life insurance. The premium costs for the other three types of insurance offered under this clause were not so noted. This fact, when construed in light of the clear meaning of the second sentence of the "other insurance" clause, strongly supports the conclusion that the parties intended to enter into a contract to procure credit life insurance.

The "assume other for now" language in this contract also serves to make the contract uncertain and ambiguous. A writing is ambiguous when it is reasonably capable of being understood in more than one sense. Quick v. Bakke, Kopp, Ballou & McFarlin, Inc., 380 N.W.2d 364 (S.D.1986); Carr v. Benike, Inc., 365 N.W.2d 4 (S.D.1985). The writing in this case is reasonably capable of being understood in more than one sense. The "assume other for now" language might reasonably be understood to mean that Harold was going to assume someone...

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5 cases
  • Kobbeman v. Oleson
    • United States
    • South Dakota Supreme Court
    • 11 Septiembre 1997
    ...insurer would have paid on behalf of the insured had the desired coverage been obtained. See generally Heinert v. Home Federal Sav. & Loan Ass'n of Sioux Falls, 444 N.W.2d 718 (S.D.1989); Kenyon v. Larsen, 205 Neb. 209, 286 N.W.2d 759, 764 (1980); Virginia First Sav. & Loan Ass'n v. Wells, ......
  • Lane v. Travelers Indem. Co.
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    • South Dakota Supreme Court
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  • Hancock Bank v. Travis
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    ...assumes the position of insurer and thus risk of loss. Richmond v. Grabowski, 781 P.2d 192 (Colo.App.1989), Heinert v. Home Federal Sav. & Loan Ass'n, 444 N.W.2d 718 (S.D.1989) (insurance provision in loan disclosure statement (Regulation Z), signed by borrower, created contract in which fi......
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