Kimbal v. Travelers Ins. Co.

• Decision Date: 17 November 1942
• Parties: KIMBAL v. TRAVELERS INS. CO.
• Court: Florida Supreme Court

10 So.2d 728

151 Fla. 786

KIMBAL v. TRAVELERS INS. CO.

Florida Supreme Court

November 17, 1942

Rehearing Denied Dec. 8, 1942.

Appeal from Circuit Court, Orange County; Frank A Smith, judge.

George Palmer Garrett, of Orlando, and Latimer A. Long, of Auburndale, for appellant.

Giles & Gurney, of Orlando, for appellee.

CHAPMAN, Justice.

This case is before the Court to review a final judgment on demurrer in behalf of defendant below entered by the Circuit Court of Orange County, Florida. The plaintiff was an employee of Holly Hill Fruit Products, Incorporated, and suit was brought against The Travelers Insurance Company on a group life insurance policy. The terms of the policy protected the employee and in the event of death a certain sum was due under the provisions of the policy.

The amended declaration, held insufficient by the lower court, in part alleged that the policy was in force and effect until August 1, 1941; that the plaintiff became disabled during February 1941, within the provisions of the policy and died on July 12, 1941. The policy of insurance by appropriate language was made a part of the amended declaration. A provision of the policy is, viz.:

'Agreement Terminating Group Life Policy No. C-8830, as Heretofore Amended, Issued by the Travelers Insurance Company, Hartford Connecticut, to Holly Hill Fruit Products Incorporated.

'It is hereby agreed that said Group Life Policy No. G-8830 together with all insurance thereunder be and the same hereby is terminated effective as of 12:31 A. M. Standard Time at the Employer's address, July 1, 1941, in consideration whereof prorata adjustment of the premium thereunder shall be made.

'Dated at Hartford, Connecticut, this seventh day of June, 1941.

'The Travelers Insurance Company

'By W. H Gilbert

'Assistant Department Secretary

'Holly Hill Fruit Products Incorporated

'By W. P. Hickman

'Treas.'

One of the questions presented for adjudication is whether or not the Group Policy sued upon was in force and effect on July 12, 1941, the date of death of Virginia Kimbal. The amended declaration alleged that it was in force and effect on said date, but the quoted provision of the policy disclosed that the policy terminated on July 1, 1941, pursuant to an agreement signed by the defendant insurance company, and the employer on June 7, 1941. The sufficiency of the amended declaration was raised by demurrer. It is settled that on demurrer those matters well pleaded are admitted to be true. The amended declaration alleged that the policy was in force and effect until the 1st day of August, 1941, while the quoted provisions, supra, of the policy made a part of the declaration by appropriate reference recited that the policy terminated by agreement on July 1, 1941.

We are therefore confronted with the conflicting allegations as to the time of the termination of the policy. The time alleged in the amended declaration is August 1, 1941, and the time named in the quoted provisions, supra, of the policy is July 1, 1941. If the date of August 1, 1941, is controlling, then Virginia Kimbal, dying on July 12, 1941, was protected by the provisions of the policy, but if the policy terminated on July 1, 1941, and her death occurred on July 12, 1941, she would not be protected by the provisions of the policy. Plaintiff having made the quoted provision of the policy a part of the amended declaration is bound by the provisions thereof rather than an allegation in the declaration inconsistent with or contrary thereto. See State v. Florida Coast Line Canal & Trans. Co., 73 Fla. 1006, 75 So. 582, L.R.A.1917F, 776; Bigham v. State ex rel. Ocala Brick & Tile Co., 115 Fla. 852, 156 So. 246. The Court will construe the pleadings most strongly against the pleader. See 49 C.J. par. 112, pp. 119-20.

Counsel for appellant contends that the policy did not terminate on July 1, 1941, pursuant to the agreement signed by the Insurance Company and the employer under date of June 7, 1941, and cites and relies upon provision No. 9 of the original policy, viz.: '9. Grace Period. A grace period of thirty-one days during which the policy will remain in full force will be allowed for the payment of all premiums except the first.' It is settled law that insurance contracts must be liberally construed in favor of the insured so as not to defeat, without a plain necessity, his claim to indemnity. Where conflicting clauses appear in an insurance policy, the one which affords the most protection to the assured will control. Ambiguous provisions in policies are to be construed in favor of the insured and against the insurer. See Franklin Life Insurance Co. v. Tharpe, 130 Fla. 546, 178 So. 300.

Counsel for appellant emphasizes the fact that Virginia Kimbal could not be bound by the termination agreement because she was not a party to it; that rights accrued to her under the provisions of the policy that continued from February, 1941, until her death; that she was not notified nor did she consent to the termination agreement and was thereby deprived of the opportunity of paying the necessary premium on the policy and of acquiring insurance under the conversion privilege clause. These several contentions are discussed in the decisions. We observe two lines of authorities shedding light on many of the points in controversy. It is not necessary to cite the cases in support of the conflicting views:

We find four parties...