Norgan v. American Way Life Ins. Co.

• Decision Date: 01 April 1991
• Docket Number: Docket No. 119155
• Citation: 469 N.W.2d 23,188 Mich.App. 158
• Court: Court of Appeal of Michigan — District of US
• Parties: Shirley L. NORGAN, Plaintiff-Appellee, v. AMERICAN WAY LIFE INSURANCE COMPANY, Defendant-Appellant.

Page 23

469 N.W.2d 23

188 Mich.App. 158

Shirley L. NORGAN, Plaintiff-Appellee, v. AMERICAN WAY LIFE INSURANCE COMPANY, Defendant-Appellant.

Docket No. 119155.

Court of Appeals of Michigan.

Submitted Jan. 23, 1991, at Lansing.

Decided April 1, 1991, at 9:10 a.m.

Released for Publication May 17, 1991.

Patterson, Gruber, Kennedy, Gill & Milster by Robert W. Gruber, Bay City, for plaintiff-appellee.

Paul A. Rosenbaum, Lansing, for defendant-appellant.

Before BRENNAN, P.J., and GRIBBS and FITZGERALD, JJ.

BRENNAN, Presiding Judge.

Defendant appeals as of right from a July 10, 1989, judgment entered against it in the amount of $15,183.30, plus interest at the rate of twelve percent per year in this action for breach of an insurance contract. We affirm.

On January 29, 1988, plaintiff and her late husband purchased the joint credit life insurance policy in issue in connection with the purchase of their new car. Defendants issued plaintiffs decreasing term life insurance coverage under a group policy in the amount of the financed portion of their automobile purchase. The policy was to pay the outstanding balance on the loan in the event of the death of either insured. The automobile dealership handled the insurance transaction at the time the automobile was purchased. The certificate of insurance issued to the insureds and the application for insurance were included in a single document. There were no questions asked regarding the health of the insureds.

The decedent entered the hospital on March 18, 1988, with a productive cough and died of lung cancer on April 9, 1988. Plaintiff filed a claim on the policy on April 28, 1988, and defendant denied the claim by letter dated August 22, 1988, stating that the decedent did not meet the eligibility requirements of the policy because he retired for medical reasons. Apparently, defendant's investigation revealed that the decedent retired from his employment in 1975 as a result of a stroke and had been entitled to social security and disability benefits since September 1979. Further, the decedent allegedly had been diagnosed as having lung cancer in March 1987, for which he had undergone radiation therapy.

Plaintiff commenced the instant action after defendant denied her claim for benefits under the policy. Defendant again maintained that the decedent did not meet eligibility requirements at the time the certificate of insurance was issued. However, this time, it was defendant's position that the decedent was not "able to perform the normal duties of a person that [was his] same age and sex" as provided by the eligibility requirements in the policy. The trial court granted plaintiff's motion for summary disposition on the basis that the eligibility clause relied on by defendant was too ambiguous to be enforced. ¹ Although the trial court did not specify under which subsection of MCR 2.116(C) it was granting the motion, the court's remarks suggest that the motion was granted pursuant to MCR 2.116(C)(9), failure to state a valid defense to the claim.

A motion for summary disposition pursuant to MCR 2.116(C)(9) for failure to state a valid defense tests the legal sufficiency of the pleaded defense. Hazel Park v. Potter, 169 Mich.App. 714, 718, 426 N.W.2d 789 (1988). Such a motion is tested by the pleadings alone, accepting all well-pled allegations as true. Id. The proper test for the motion is whether the defendant's defenses are "so clearly untenable as a matter of law that no factual development could possibly deny plaintiff's right to recovery." Id.

A borrower subjected to eligibility requirements in a group credit insurance policy must be given notice of those requirements. Gardner v. League Life Ins. Co., 48 Mich.App. 574, 576-577, 210 N.W.2d 897 (1973). The notice must be included in the certificate of insurance which the Credit Insurance Act, M.C.L. § 550.608; M.S.A. § 24.568(8), requires to be delivered to the debtor. Id., p. 577, 210 N.W.2d 897. Such notice is the only safeguard against the potential abuses of postclaim underwriting. Id., p. 579, 210 N.W.2d 897. Defendant argues that it gave such notice to the insureds in the certificate of insurance delivered to them at the time they purchased their automobile. The certificate in the present case consisted of a two-page document. On the first page, immediately below the schedule of benefits and the premium and above the signature of the debtors, is the following language:

IMPORTANT NOTICE TO DEBTOR

This certificate contains several major restrictions on eligibility for life and Permanent Total Disability benefits:

(1) Maximum benefits allowed;

(2) Age limits; and

(3) Work requirements.

Please refer to appropriate sections of this certificate for complete details.

Also on the cover page, below the debtors' signatures, is the following paragraph:

ELIGIBILITY FOR INSURANCE

To be eligible for life insurance, you must be actively employed for at least 30 hours per week for two consecutive weeks immediately preceding the effective date of this certificate. You are not eligible for issue or continuation of life insurance beyond age 70. To be eligible for Permanent Total Disability insurance, you must be actively employed for at least 30 hours per week for 60 consecutive days immediately preceding the effective date of this certificate. You are not eligible for issue or continuation of Permanent Total Disability insurance beyond age 65. You are eligible for life insurance if you are not actively at work and are able to perform the normal duties of a person that is your same age and sex. [Emphasis added.]

The second page of the certificate includes a definition of permanent total disability, but does not define any other terms used in this eligibility clause. Defendant, of course, relies on the last sentence in the eligibility provision and argues that there was a question of fact regarding whether the decedent was "able to perform the normal duties of a person that [was his] same age and sex." Plaintiff argues, as the trial court ruled, that the clause is so ambiguous that it is unenforceable as a matter of law.

In determining whether an insurance policy applies in a given case, this Court first must determine whether the policy is clear and unambiguous on its face. Allstate Ins. Co. v. Freeman, 432 Mich. 656, 665, 443 N.W.2d 734 (1989), modified on other grounds 433 Mich 1202 (1989). Insurers may limit the risks they choose to assume and fix premiums accordingly. Auto Club Ins. Ass'n v. DeLaGarza, 433 Mich. 208, 214, 444 N.W.2d 803 (1989); Ramon v. Farm Bureau Ins. Co., 184 Mich.App. 54, 65, 457 N.W.2d 90 (1990). However it is the insurance company's responsibility to clearly express the limitations on coverage. DeLaGarza, 433 Mich. p. 214, 444 N.W.2d 803. The insurer bears the burden of any confusion which arises as a result of its failure to state clearly the limitations of the coverage purchased. Id., p. 215, 444 N.W.2d 803.

In support of its claim, defendant relies on Osborn v. League Life Ins. Co., 20 Mich.App. 19, 173 N.W.2d 724 (1969), which involved a nearly identical eligibility clause which precluded eligibility if the applicant was "not regularly employed" and was prohibited "from engaging in the normal and customary activities of a person of his age and sex." In Osborn, p. 21, 173 N.W.2d 724, a panel of this Court found that the evidence regarding the plaintiff's "employment status and the conflicting evidence regarding his activities after he underwent surgery made a question for the jury whether he had a regular...