Long v. Bankers Life & Cas. Co.

• Decision Date: 06 March 1975
• Citation: 311 So.2d 328,294 Ala. 67
• Parties: In re Nell Davenport LONG v. BANKERS LIFE AND CASUALTY COMPANY, a corporation. Ex parte Nell Davenport Long. SC 930.
• Court: Alabama Supreme Court

Page 328

311 So.2d 328

294 Ala. 67

In re Nell Davenport LONG v. BANKERS LIFE AND CASUALTY COMPANY, a corporation Ex parte Nell Davenport Long.

SC 930.

Supreme Court of Alabama.

March 6, 1975.

Leo E. Costello, Birmingham for petitioner.

Spain Gillon, Riley, Tate & Ansley and Ollie L. Blain, Jr., Birmingham, for respondent.

HEFLIN, Chief Justice:

This is a certiorari to review a decision of the Court of Civil Appeals. The factual setting and procedural steps of this case are recorded in two decisions of the Court of Civil Appeals. For a more complete discussion of the underlying facts, see 48 Ala.App. 570, 266 So.2d 780 (1972) ¹, and 54 Ala.App. 604, 311 So.2d 324 (1974). A brief chronology of the factual context and procedural steps of this litigation may be beneficial in understanding the posture of this case.

Bankers Life and Casualty Company (Bankers Life) sent advertising brochures to all American Express Credit Card holders. These brochures announced a group life insurance plan for interested credit card holders. An application was included in the package. Mr. William Long filled out his application and returned it to Bankers Life. The application was accepted. Mr. Long died some nine months after the policy went into effect. His widow, Mrs. Nell Davenport Long filed for the $10,000 life insurance proceeds. Bankers Life refused to make payment. Mrs. Long brought suit. Bankers Life set up the defense of misrepresentation in the policy. A jury verdict was rendered for Mrs. Long for the amount of the policy. Bankers Life appealed to the Court of Civil Appeals where the case was reversed and remanded. The ground for the reversal and remandment was that Bankers Life's motion for a new trial should have been granted because the verdict was against the great weight and preponderance of the evidence. Specifically, the court held that the evidence showed that Mr. Long had withheld information in his application which increased the risk of loss to Bankers Life. Mrs. Long did not petition this court for certiorari. After remand, Bankers Life moved for summary judgment, on the basis of record of the prior trial and the ruling by the appellate court. Mrs. Long relied on the record plus a letter by Mr. Long's physician, Dr. Arthur Freeman, who did not testify at the trial. The trial court granted summary judgment for Bankers Life. Mrs. Long appealed that judgment to the Court of Civil Appeals. It affirmed the summary judgment. That affirmance is the basis of the instant certiorari.

This case deals with application of the standard for testing motions for summary judgment in the area of re-trial litigation after an appellate court's determination that a jury verdict was contrary to the great weight and preponderance of the evidence. This is the first occasion presented this court to address itself to the propriety of granting summary judgments in this procedural posture.

The basic question presented is whether the Court of Civil Appeals applied the proper standard of law by which a motion for summary judgment is tested in re-trial litigation after an appellate determination that the verdict is against the great weight and preponderance of the evidence. This court holds that the Court of Civil Appeals erred in not applying the proper standard for testing motions for summary judgment in such situations.

The Court of Civil Appeals properly stated the standard by which summary judgments are tested:

'* * * (A) Summary judgment is proper when it appears '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.' * * *'

The Court of Civil Appeals also states the principle that the appellate court standard for reviewing the trial court's action is the same standard as used by the trial court. 10 Wright and Miller, Federal Practice and Procedure § 2716; 6 Moore's Federal Practice 56.27(1). This court agrees with this principle for appellate review of the action of trial courts when ruling on motions for summary judgment.

Applying this standard to the case before us requires that a court determine that the moving party has carried the burden of showing the absence of any genuine issue as to (1) whether there was a misrepresentation in the answer to question 2 of the application for insurance and (2) whether, assuming a misrepresentation is found, such misrepresentation either (a) is intentional or (b) is such as to increase the risk of loss to the insurer.

The Court of Civil Appeals does not proceed with a determination as set out above. Instead, the court set forth a condensed recital of its findings of fact per its first opinion and then looked to see whether there was any new evidence presented by Mrs. Long which would create a triable issue of fact. The essence of the court's rationale may be stated as follows:

'As seen from the above (the condensed recital of its prior findings of fact) the deceased misrepresented and withheld information regarding the periods of hospitalization, and this court held such misrepresentation increased the risk of loss. Appellant asserts the letter and testimony of Dr. Freeman would show the condition of decedent's liver to be within normal limits and therefore there could not be an increase in risk of loss from an alleged misrepresentation.

'The letter or testimony of Dr. Freeman cannot and does not change the material misrepresentation regarding the prior hospitalization which this court stated increased the risk of loss. * * *'

Thus, it is clear the court did not use the usual standard by which motion for summary judgment is tested but rather used a standard which relies on the prior appellate findings of fact. Is such a standard proper?

The answer to this...