Martinez v. GREAT AMERICAN INSURANCE CO. OF NEW YORK
| Decision Date | 03 July 1968 |
| Docket Number | Civ. A. No. 67-93-SA. |
| Citation | 286 F. Supp. 141 |
| Parties | Ramiro MARTINEZ et al., Plaintiffs, v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Defendant. |
| Court | U.S. District Court — Western District of Texas |
Jerry P. Heltzel, Richard Tinsman, Tinsman & Cunningham, San Antonio, Tex., for plaintiffs.
Carl Wright Johnson, W. R. Simcock, San Antonio, Tex., for defendant.
Plaintiffs, who claim a cause of action against one Jesus Barrientes (the insured) for injuries and damages growing out of an accident on September 7, 1967, involving an automobile owned and driven by the insured, brought this suit seeking a judgment declaring that an insurance renewal certificate issued to the insured by the defendant (insurer), and covering said automobile was in effect on the date of the accident. After a trial without a jury, this Court holds that the plaintiffs are entitled to the declaratory judgment sought. The matters hereinafter set forth shall constitute the findings of fact and conclusions of law in support of the judgment.
On July 8, 1966, the insured, at that time an employee of Lackland Air Force Base located just outside San Antonio, Texas and near Hondo, Texas, purchased an automobile liability insurance policy from the defendant-insurer, through its agent, Wood & Wood Insurance Agency (the agency) of Hondo. A portion of the premium was paid in cash and the balance, which has never been paid, was carried on the books of the agency as an account receivable due to it from the insured. The agency paid the defendant-insurer the full amount of the premium, less their commission.
Sometime prior to the date the policy was to expire, the agency sent to the defendant-insurer's service office in San Antonio a list of insurance policies eligible for renewal in the month of July, 1967. The agency thereafter received an envelope from said service office containing all of the July renewal certificates, including one covering the policy of the insured, and a bill for the premiums on all renewals.
On July 5, 1967, the agency sent a letter to the insured reading as follows:
"Your car insurance policy will be due on 7-8-67 and would appreciate you dropping us a line below yes or no if you want to renew same again this year."
The following "demand" letter was written by the agency to the insured on July 26, 1967:
"The company demands that if we do not send in the money for this policy to them within a week from this date, that we return the policy to them for cancellation. * * *"
Subsequently, on August 29, 1967, the agency received from the San Antonio office of defendant-insurer a letter stating:
1
On September 1, 1967, the agency returned the insured's renewal certificate to the defendant-insurer with the following transmittal letter:
"Enclosed please find automobile renewal certificate of Policy No. 4-69-64-14-VF, Jesus Barrientes, to cancel as far back as possible as we cannot hear from him."
Testimony of Mrs. Jo Wood, a partner in the agency, was to the effect that she was sure the company dated the policy back "some", because "they knew we were losing money on it".
The July 26, 1967 letter from the agency to the insured, written some eighteen days after the expiration date of the original policy, indicates that the agency considered the renewal certificate to be in effect at that time, otherwise there would have been no occasion to threaten cancellation. The letter of August 29, 1967 from the company to the agency fully supports a finding that the defendant-insurer itself treated the policy as one in effect at least until September 12, 1968.
Sometime between April 1967 and September 1967, Lackland Air Force Base issued to the insured a windshield decal, effective until July 6, 1968, indicating that the insured had obtained the...
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