Moss v. National Life and Accident Insurance Co.
| Decision Date | 27 November 1974 |
| Docket Number | No. 20700-4.,20700-4. |
| Citation | 385 F. Supp. 1291 |
| Parties | George MOSS, Plaintiff, v. The NATIONAL LIFE AND ACCIDENT INSURANCE CO., Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Nicholas L. Swischer, Russell & Brown, Nevada, Mo., for plaintiff.
Robert F. Redmond, III and David M. Harding, Terrell, Van Osdol & Magruder, Kansas City, Mo., for defendant.
MEMORANDUM AND ORDER CONCERNING STATE LAW APPLICABLE TO THIS ACTION
This is an action wherein plaintiff, the beneficiary under an insurance policy on the life of James V. Moss issued by defendant, seeks to recover the $10,000.00 face value of the policy, the $20,000.00 accidental death benefit, damages for vexatious refusal to pay, and reasonable attorneys' fees incurred in the prosecution of this action. The action was removed to this Court from the Circuit Court of Jackson County, Missouri, on the basis of diversity of citizenship between the parties and an amount in controversy in excess of $10,000.00. See 28 U.S.C. §§ 1332 and 1441 et seq.
The pleadings in this cause raise the issue of whether the law applicable to the contract of insurance upon which plaintiff has brought suit and the state law applicable to various claims and defenses raised in the action is that of the State of Missouri or the State of Oklahoma. The parties have filed briefs on these issues, and on August 12, 1974, the Court, treating the dispute as cross-motions to strike claims and defenses, permitted the parties to adduce evidence in support of their respective positions on the conflict of laws issue. This matter is presently before the Court solely on the issue of whether the law of Missouri or Oklahoma is applicable in determining the validity of the contract of insurance and the rights and liabilities created thereby.
There are essentially two questions involved herein upon which the parties differ in their application of state law. The first dispute is whether Section 375.420 RSMo., providing damages and reasonable attorneys' fees for vexatious refusal to pay insurance proceeds, may be asserted by plaintiff in this action. The second is whether the law of the State of Missouri or the State of Oklahoma governs the question of the defense of suicide which has been asserted by defendant. Prior to a determination of these choice of law questions, a review of the facts is in order. From the stipulations, depositions, testimony and exhibits received at the evidentiary hearing in this matter, the Court makes the following findings of fact.
On or about October 2, 1970, James V. Moss made application for a National Life and Accident Insurance Company policy through Raymond Stiverson, Jr., an agent of the Company. This application was accompanied by a promissory note and assignment of policy in payment of the initial policy premium. Following this application and arrangement for payment of initial premium, National Life and Accident Company, from its home office in Nashville, Tennessee, issued a policy of insurance No. 70308569 on December 14, 1970, insuring the life of James V. Moss. This policy was delivered to James V. Moss on or about December 18, 1970, and named as primary beneficiary, George Moss. James V. Moss died on or about October 28, 1971, at Kansas City, Missouri, as a result of suffocation by hanging, and on the date of death the policy of insurance was in full force and effect. That policy provides for the payment of $10,000.00 upon the death of James V. Moss, and an additional $20,000.00 in the event his death is found to be accidental.
At the time James V. Moss applied for and was issued the mentioned policy of insurance, he was a student at Bethany Nazarene College, Bethany, Oklahoma, and was living in the on-campus college dormitory. Following his completion of the course of study at Bethany College in May 1971, James V. Moss resided for a short time with his parents in their home near Milo, Missouri. In the summer of 1971 he moved to Kansas City, Missouri, and attended the Nazarene Seminary in that city. At the time of his death in October, 1971, James V. Moss was a resident of Kansas City, Missouri, and a student at the Nazarene Seminary.
In the application for insurance, James Moss informed the agent and the agent listed his "Home or permanent address" as P. O. Box 825, Bethany, Oklahoma, and his "School Residence" as "Bethany Nazarene College, Chapman Hall, Room 161, Bethany Oklahoma." The address listed as "Home or Permanent Address" was in fact the applicant's mail box in the College dormitory, and the agent completing the application was aware of that fact at the time the application was completed. The agent at the time the application was made did not attempt to determine if James Moss had a "Home or Permanent Address" other than that given, even though the agent was aware that the address listed was the same as that listed as "School Residence". This application was signed by James Moss, and under the terms of the policy made a part of the policy of insurance. Additionally, in connection with the policy application, James V. Moss executed a promissory note and assignment of insurance policy in the amount of $172.00 with interest at the rate of 8% payable in five years to the Third National Bank of Nashville, Nashville, Tennessee. This instrument was executed on October 2, 1970, at Bethany, Oklahoma, and listed the "permanent home address" of James V. Moss as "P. O. Box 825, Bethany, Oklahoma." Upon issuance, the policy of insurance was personally delivered to James V. Moss in Bethany, Oklahoma by George Ashford, an agent of defendant.
The evidence establishes that commencing in 1953 James V. Moss resided with his parents in the State of Missouri until he left the family home in Southwest Missouri to attend college in Bethany, Oklahoma. Throughout his college years, James Moss lived in the dormitory at Bethany College. His school mail and scholastic grades were sent by the college to his parent's home in Missouri. His Selective Service Registration Card was issued on December 30, 1965, by Local Board No. 102 in the State of Missouri. During his college years, James V. Moss obtained several National Defense Student Loans from Bethany College and on June 5, 1970, listed thereon his permanent address as Moundville, Missouri. Throughout his college years he spent his vacations at his parent's home in Southwestern Missouri, and a place to sleep was maintained for him there. His address for purposes of billing oil company credit purchases during his last year of college was the home of his parents in Milo, Missouri. While in college, James V. Moss maintained some livestock of his own on his parents' farm near Milo, Missouri and had an acre of that farm which had been set aside for him which he periodically worked to improve.
On August 25, 1971, while James Moss was residing in Kansas City, Missouri, the Church of the Nazarene licensed him as a minister for a one year period in the Kansas City, Missouri District Assembly of that Church. Prior to his death in October, 1971, James Moss resided in student housing in the Kansas City, Missouri area; maintained a checking account with a bank in Kansas City, Missouri; and was employed at Research Hospital and Medical Center in Kansas City, Missouri. On October 8, 1971, the defendant, through its agent, mailed to James Moss its notice that premiums on his policy would soon become due. This notice was sent to James Moss, c/o his father, Route # 1, Milo, Missouri. Letters from James Moss to his parents in February, 1971, and from his fiancee to him in July, 1971, indicate that prior to his death, James Moss intended to make his home in Kansas City, Missouri, and was seeking to obtain a ministry in the State of Missouri.
The defendant National Life and Accident Insurance Company is incorporated under the laws of the State of Tennessee and maintains its home office in Nashville, Tennessee. It is licensed to do business in both Oklahoma and Missouri and in other states. The policy of insurance which is the subject of this suit provides in pertinent part, concerning payments of the face amount of $10,000.00, as follows:
"If the insured, within two years from the Date of Issue of this Policy, shall die of suicide, while sane or insane, the Company's liability shall be limited to the premiums actually received, less any indebtedness to the Company against this policy."
The Policy further provides in regards to payment of triple indemnity on accidental death as follows:
"No payment shall be made under this agreement for death or dismemberment which results either directly or indirectly, or wholly or partially, from (1) intentionally self-inflicted bodily injury or suicide, while sane or insane . . .."
The "conflict" between Missouri law and Oklahoma law pertinent herein involves the Missouri statutory limitation of defenses which can be asserted by an insurer in a suit by the beneficiary of a life insurance policy, and Oklahoma statutes governing the content of life insurance policies. Section 376.620 RSMo (1969), V.A.M.S. provides:
"In all suits upon policies of insurance on life hereinafter issued by any company doing business in this state to a citizen of this state it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or a jury trying the cause, that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void."
Title 36, section 4024 of the Oklahoma statutes provide:
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