Manz v. Continental American Life Ins. Co.

• Decision Date: 13 January 1993
• Citation: 849 P.2d 549,119 Or.App. 31
• Parties: Darlene MANZ, Appellant, v. CONTINENTAL AMERICAN LIFE INSURANCE COMPANY, Respondent. 9005-02899; CA A68487. . On Respondent's Petition for Reconsideration
• Court: Oregon Court of Appeals

Page 549

849 P.2d 549

119 Or.App. 31

Darlene MANZ, Appellant, v. CONTINENTAL AMERICAN LIFE INSURANCE COMPANY, Respondent.

9005-02899; CA A68487.

Court of Appeals of Oregon.

On Respondent's Petition for Reconsideration Jan. 13, 1993 Decided March 31, 1993.

Don G. Carter, David B. Paradis and McEwen Gisvold Rankin & Stewart, Portland, for petition.

Christopher A. Rycewicz, Stafford Frey Cooper & Stewart, Michael J. Knapp and Myers & Knapp, Portland, contra.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

WARREN, Presiding Judge.

Defendant petitions for review of our decision reversing the summary judgment for it. 117 Or.App. 78, 843 P.2d 480 (1992). We treat the petition as one for reconsideration, ORAP 9.15(1), allow it and adhere to our decision.

In our original opinion, we concluded that Washington substantive law governs this dispute. We also concluded that, under RCWA 48.18.080(1), defendant could not rely on misstatements contained in plaintiff's insurance application, because it did not provide a copy of that application with the certificate of insurance it delivered to plaintiff. Defendant contends that we erred in applying that statute, because the governing statute is RCWA 48.21.060, which provides:

"There shall be a provision that a copy of the application, if any, of the policyholder shall be attached to the policy when issued; that all statements made by the policyholder or by the individuals insured shall in the absence of fraud be deemed representations and not warranties, and that no statement made by any individual insured shall be used in any contest unless a copy of the instrument containing the statement is or has been furnished to such individual or to his beneficiary, if any."

RCWA 48.21.060 is a standard provision that governs every policy of group or blanket disability insurance covering a Washington insured. RCWA 48.21.050. RCWA 48.18.010 provides that RCWA 48.18.080(1) does not apply to "life or disability insurance policies not issued for delivery in [Washington], nor delivered in [Washington]." Consequently, if the policy covering plaintiff was a group disability policy that was not issued for delivery or delivered in Washington, RCWA 48.21.060, not RCWA 48.18.080(1), would govern the admissibility of plaintiff's application.

The parties dispute whether defendant's policy is a group disability policy not issued for delivery or delivered in Washington. No Washington statute or case clearly defines what constitutes such a policy. Even assuming that plaintiff's policy was governed by RCWA 48.21.060, not RCWA 48.18.080(1), as we initially determined, the result would be the same.

In Johnson v. Prudential Insurance Co. of America, 519 S.W.2d 111 (Tex.1975), the Texas Supreme Court construed a statute with virtually identical language to that of RCWA 48.21.060, ¹ to require an insurer to provide an individual insured under a group insurance policy with a copy of his or her application when it delivers the certificate of insurance. It explained:

"The first clause in the above quoted subsection * * * puts us upon the track of a proper understanding of the legislative intention. It requires that a copy of the application of the policyholder be attached to the policy. This requirement is in accord with long established legislative provisions which exist for well recognized reasons. Applications for insurance and other written statements made in that connection are often filled out or written by insurance agents or others and only signed by the insured. It has often been held that it is the underlying legislative intention to require that the insured have the material terms of the contract at hand during his lifetime in order that he might examine and correct any misrepresentations which have been made the basis of the insurance coverage. * * *

"Since 1903 Texas has had a statutory provision requiring the attachment of application and policy in certain insurance contracts. * * * [T]his statutory provision has been repeatedly applied to prevent the use of statements of the insured which are not attached to the policy when the...