Lowery v. Guaranty Bank and Trust Co., 07-CA-59488
| Decision Date | 11 December 1991 |
| Docket Number | No. 07-CA-59488,07-CA-59488 |
| Citation | 592 So.2d 79 |
| Parties | Jean Z. LOWERY, Individually and as Administratrix of the Estate of H.W. Lowery, Deceased v. GUARANTY BANK AND TRUST COMPANY and Life Insurance Company of Mississippi. |
| Court | Mississippi Supreme Court |
Edward J. Bogen, Jr., McGee & Bogen, Leland, for appellant.
Frank J. Dantone, Jr., Henderson Duke Dantone & Hines, Greenville, Ann E. Wedding, Earl Keyes, Keyes Danks Moss & Leonard, Jackson, for appellees.
Before HAWKINS, P.J., and SULLIVAN and McRAE, JJ.
On May 15, 1986, Jean Z. Lowery, individually and as administratrix of the Estate of H.W. Lowery, deceased, filed a complaint in the Washington County Circuit Court against Guaranty Bank and Trust Company (Guaranty Bank) and Life Insurance Company of Mississippi (Life Insurance). Mrs. Lowery alleged in her complaint that Guaranty Bank and Life Insurance negligently and in breach of a fiduciary relationship failed to give notice that credit life insurance on two notes would expire with the maturity of the notes. The credit life insurance secured notes executed with Guaranty Bank. Mrs. Lowery demanded $14,762.60 in actual damages and $250,000.00 in punitive damages.
On July 14, 1987, Life Insurance filed a motion for summary judgment arguing that it was entitled to a judgment as a matter of law as the credit life insurance contracts on the notes were issued for a specific period of time, which had expired prior to the death of Mr. Lowery; therefore, there was no genuine issue of fact. On July 28, 1987, Guaranty Bank followed suit, arguing that it too was entitled to judgment as a matter of law on the same grounds.
After considering the pleadings, depositions, exhibits, briefs and hearing arguments, the trial court found that there were no "facts warranting a jury's scrutiny, and that there is no genuine issue as to any material fact; that an absence of legal liability is displayed, and that the defendants are entitled to judgment as a matter of law." On July 5, 1988, the trial court entered an order granting the motion for summary judgment to Guaranty Bank and Life Insurance.
Mrs. Lowery appeals asserting only one issue:
WHETHER THE TRIAL COURT WAS CORRECT IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT?
In 1979, H.W. and Jean Lowery executed an original promissory note with Guaranty Bank and Trust Company for $12,529.00, with Robert W. Steinriede, president of the Hollandale Branch of Guaranty Bank, as the loan officer. On December 12, 1983, the original note was renewed by a $9,037.30 note, with a maturity date of June 15, 1984. Credit life insurance was taken out to secure the note for its term (183 days). The credit life insurance was acquired through a group credit life insurance policy that Guaranty Bank had with Life Insurance Company of Mississippi.
On February 14, 1984, the Lowerys executed a promissory note for $2,032.67, with a maturity date of October 15, 1984. Credit life insurance was taken out for the term of the note (244 days). The $9,000.00 note was renewed on June 19, 1984. The note's new maturity date was October 1, 1984. Mr. Lowery acquired credit life insurance for the 104 day term of the note. Both notes were also secured by a deed of trust to the Lowery property.
Mr. Lowery worked as an aerial applicator, or in common parlance, a crop duster. On September 21, 1984, during a period of time that he was working in Louisiana, Guaranty Bank sent a due notice to the Lowerys for the $9,000.00 note due October 1st. Mrs. Lowery then contacted Mr. Steinriede at the bank, who handled the notes for the Lowerys, to inform him that her husband was working in Louisiana and that it would be at least two more weeks before he could get home to take care of the note. Mr. Steinriede then told Mrs. Lowery something to the effect that that would be fine, but to have Mr. Lowery come in to take care of the notes as soon as he got home. Although Mr. Steinriede did not tell Mrs. Lowery he was extending the notes, she assumed that he was extending the notes for two weeks.
Mr. Lowery did not make it home in two weeks as expected, so he called his wife and instructed her to call Mr. Steinriede at the bank and tell him that he would not be in until after October 15th, and to ask if the notes would be all right until then. Mrs. Lowery was not able to talk to Mr. Steinriede, but left the message with his secretary. Mr. Steinriede told Mrs. Lowery, through his secretary, to have Mr. Lowery come in as soon as he got home. Again there was no indication that the notes were being extended or renewed.
Unfortunately, Mr. Lowery never made it home. He died on October 24th. A few days after the death of Mr. Lowery, Mrs. Lowery and her son, Michael, went to the bank to talk to Mr. Steinriede to inform him of Mr. Lowery's death and to confirm that the credit life insurance would pay off the notes. Mr. Steinriede told them to take care of the arrangements for the burial of Mr. Lowery and he would check on the life insurance and let them know. When they went back, Mr. Steinriede informed them that the credit life insurance on the notes had expired. On May 15, 1986, Mrs. Lowery filed her complaint against Guaranty Bank and Life Insurance.
The discovery documents revealed that the insurance policy with the bank indicated that individual insurance terminated either on the date the loan is prepaid, the date the loan is refinanced, the date the original term of the insurance expired, or the date of payment of a dismemberment benefit. Mr. Steinriede dealt with the Lowerys in their dealings with Guaranty Bank in that he more or less was their loan officer. It was the customary practice of the Lowerys to buy credit life insurance. Mrs. Lowery knew very little about the loans because Mr. Lowery handled all of the business transactions. Guaranty Bank denied that it formally renewed or extended the notes.
Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be entered by a trial court "if the pleadings, depositions, answers to interrogatories 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." All that is required of an opposing party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under the rule. Galloway v. Travelers Insurance Co., 515 So.2d 678, 682 (Miss.1987).
In determining whether the entry of summary judgment was appropriate this Court reviews the judgment de novo, making its own determination on the motion, separate and apart from that of the trial court. The evidentiary matters are viewed in the light most favorable to the nonmoving party. If after this examination, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is affirmed. If after examining the evidentiary matters there is a genuine issue of material fact, then the grant of summary judgment is reversed. Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990); Allison v. State Farm Fire & Casualty Co., 543 So.2d 661 (Miss.1989); Short v. Columbus Rubber and Gasket Co., 535 So.2d 61 (Miss.1988); Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983).
In support of their arguments for summary judgment, both Guaranty Bank and Life Insurance argue that the notes clearly indicate that the term of the credit life insurance ran with the term of the note and expired with maturity date of the notes. The notes were never formally extended; and if they were the insurance was not requested. They contend that Mrs. Lowery cannot recover on the policy because the notes show that the insurance had expired and no new coverage was requested.
Where the language of an insurance contract is clear and unambiguous it is not construed in favor of the insured but is construed as written. State Farm Mutual Auto Insurance Company v. Gregg, 526 So.2d 554, 556 (Miss.1988); Ford v. Lamar Life Insurance Co., 513 So.2d 880 (1987). The policy states that individual insurance expires the date the original term of insurance expires. The notes show that Mr. Lowery acquired credit life insurance for a term of 104 days (June 19, 1984 to October 1, 1984) on the $9,000.00 note, and for a term of 244 days (from February 14, 1984 to October 1, 1984) on the $2,000.00 note. The record clearly indicates that the credit life insurance terminated with the maturity date of the notes.
However, the policy also provides a "grace period benefit." This provision states:
Grace Period Benefit: In addition to the death benefit for reducing life insurance as provided in the Death Benefit Provision, the Company will pay an additional benefit to the Creditor Beneficiary of an amount, if any, that the unpaid balance of the loan at the date of death exceeds the death benefit, except that the amount of such additional benefit shall not exceed two (2) times the uniform monthly decrease as defined in the Death Benefit Provision. No Grace Period Benefit will be paid if death occurs sixty (60) or more days after the expiration of the term of insurance.
On Level Life Insurance, the Company will pay the death benefit if the Insured Debtor should die within seven (7) days after the expiration of the term of the insurance and the insured loan is unpaid and outstanding as of the date of death.
This provision allows that where the credit life insurance death benefit is "reducing life," the grace period for reducing life insurance is 60 days. If the death occurs within 60 days of the expiration of the insurance, the death benefit will still be paid. The grace period for "level life" is seven (7) days, i.e., the death benefit is paid if the insured debtor dies within seven (7) days of the expiration of the term of the...
To continue reading
Request your trial
-
Mabus v. St. James Episcopal Church, No. 2003-CA-00123-SCT
...there must be evidence that both parties understood that a special trust and confidence was being reposed. Lowery v. Guar. Bank & Trust Co., 592 So.2d 79, 84 (Miss. 1991) (citing Stone v. Davis, 66 Ohio St.2d 74, 419 N.E.2d 1094 (1981)). See also Dunn v. Dunn, 786 So.2d 1045, 1052 (Miss.200......
-
Flight Line, Inc. v. Tanksley
...of a litigant's duty. If this be submission to the jury of the existence vel non of a duty, so be it. See Lowery v. Guaranty Bank and Trust Co., 592 So.2d 79, 84 (Miss.1991). That courts have ultimate authority to declare duties, and review jury findings, see George B. Gilmore Company v. Ga......
-
Mid-S. Maint., Inc. v. Burk (In re Burk)
...between the parties, citing Cross Point Church v. Andrews , 560 B.R. 429 (Bankr. S.D.Miss. 2016) and Lowery v. Guaranty Bank & Trust Co. , 592 So.2d 79 (Miss. 1991). This argument fails for several reasons. First, the Fifth Circuit has recognized "the concept of fiduciary under § 523(a)(4) ......
-
Cross Point Church v. Andrews (In re Andrews)
...the one side an overmastering influence or, on the other, weakness, dependency or trust, justifiably reposed." Lowery v. Guaranty Bank & Trust Co ., 592 So.2d 79, 83 (Miss. 1991) (quotations omitted). Andrews admitted at Trial that as pastor, officer, and Board member, he owed a fiduciary d......