Mutual of Omaha Ins. Co. v. Dingus, 770704
| Decision Date | 12 January 1979 |
| Docket Number | No. 770704,770704 |
| Citation | 219 Va. 706,250 S.E.2d 352 |
| Court | Virginia Supreme Court |
| Parties | MUTUAL OF OMAHA INSURANCE COMPANY v. James E. DINGUS. Record |
Charles B. Flannagan, II, Bristol (Woodward, Miles & Flannagan, Bristol, on brief), for plaintiff in error.
No brief or argument for defendant in error.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
James E. Dingus recovered a judgment in the court below against Mutual of Omaha Insurance Company. The recovery was effected under a disability income policy. Mutual defended upon the ground that there was no valid policy of insurance in effect because of material misrepresentations contained in Dingus' application for insurance.
On October 5, 1972, Dingus signed an application for a policy of insurance from Mutual which would provide him specific benefits in event he should incur certain designated medical expenses. This application, which contained questions to be answered by Dingus, read, in part, as follows:
"2. Have you or any named dependent ever had, or been advised by a physician that you had, or received advice or treatment for:
(a) High blood pressure . . .
(b) . . . stomach . . . intestinal . . . trouble . . .
(d) Mental or nervous trouble . . .
The application reflects that Dingus answered "No" to questions 2(a)(b)(d) and 3(a)(b). Over Dingus' signature and the statement of James Shortt, an agent of Mutual, that he had "truly and accurately recorded in this application the information supplied by the applicant", is the following certification:
"Having read the completed application or having had it read to me, I realize that any false statement or misrepresentation therein may result in loss of the coverage under the policy, and I represent that my above answers and statements are true and complete to the best of my knowledge and belief. . . ."
Pursuant to the application, Mutual issued and delivered to Dingus its disability income policy. The second paragraph on the first page of the policy contains the following language printed in red letters:
On November 1, 1972, Mutual mailed to Dingus at his correct address its reverification letter containing the following language:
On March 27, 1973, Dingus had a right inguinal hernia operation and, following his discharge from the hospital, applied to Mutual for benefits under his policy. In the routine processing of the claim, the company gained information about Dingus' prior health history and health problems.
Specifically, when Dingus was admitted to the Bristol Memorial Hospital, Bristol, Tennessee, on March 26, 1973, his medical history was taken by Dr. Kermit Lowry and recorded, in pertinent part, as follows:
The secretary of medical records of the Bristol Memorial Hospital advised counsel for appellant on March 27, 1974, that James E. Dingus had been a patient in Bristol Memorial in June, 1958, and in March, 1973. Regarding Dingus' 1958 hospitalization, she certified Dr. B. Y. Cowan's findings to have been as follows:
Dr. W. A. Davis of Dante, Virginia, was asked if he had seen Dingus for any reason other than the hernia and he responded by written report dated July 23, 1973, as follows:
The evidence on behalf of Mutual is that the policy was issued on the basis of the information contained in the application which, on its face, indicated no problems whatsoever concerning Dingus' insurability. Charles Burke, Senior Underwriter for the southeast region of Mutual, testified that had Dingus divulged in his application the information which the company obtained following his hernia operation, the policy would not have been written. Burke said that had Dingus disclosed the fact that he had been hospitalized in 1958 with ulcer-type symptoms, or that he had been told by physicians that he had high blood pressure, or that he had been spitting up blood in 1958 and 1960, or that he had been examined for a hernia in 1971, the company would have pursued this information before issuing any policy. Burke stated the company would have written to the doctors and obtained medical reports and information concerning the true condition of the applicant.
Dingus testified that he advised the company's agent that ...
To continue reading
Request your trial
-
St. Paul Fire and Marine Ins. Co. v. Jacobson
...1986 renewal application for insurance was both (i) material to the risk assumed; and (ii) untrue. See Mutual of Omaha Ins. Co. v. Dingus, 219 Va. 706, 250 S.E.2d 352, 355 (1979); Utica Mutual Ins. Co. v. National Indemnity Co., 210 Va. 769, 173 S.E.2d 855, 858 (1970). In light of the undis......
-
Powell v. Time Ins. Co.
...380, 157 A.2d 803 (1960); Transamerican Ins. Co. v. Austin Farm Center, Inc., 354 N.W.2d 503 (Minn.App.1984); Mutual of Omaha Ins. Co. v. Dingus, 219 Va. 706, 250 S.E.2d 352 (1979); Berger v. Minnesota Mut. Life Ins. Co., 723 P.2d 388 (Utah 1986). W.Va.Code, 33-6-7(c), closely follows this ......
-
In re EPIC Mortg. Ins. Litigation
...Insurance Co. v. Government Employees Insurance Co., 207 Va. 944, 154 S.E.2d 173, 176 (1967); Mutual of Omaha Insurance Co. v. Dingus., 219 Va. 706, 250 S.E.2d 352, 355 (1979). Under North Carolina law, the insured has the same duty. An insured's obligation is to "communicate all facts with......
-
A & E Supply Co., Inc. v. Nationwide Mut. Fire Ins.
...was charged that the burden of proof was on the plaintiff to prove fraud by clear and convincing evidence. Mutual of Omaha Insurance Co. v. Dingus, 219 Va. 706, 250 S.E.2d 352 (1979). The jury was further instructed that actual fraud is the intentional misrepresentation of a material fact w......