Poling v. North American Life and Cas. Co.

• Decision Date: 16 April 1979
• Docket Number: No. 5020,5020
• Citation: 593 P.2d 568
• Parties: Faye POLING, Appellant (Plaintiff below), v. NORTH AMERICAN LIFE AND CASUALTY COMPANY, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 568

593 P.2d 568

Faye POLING, Appellant (Plaintiff below), v. NORTH AMERICAN LIFE AND CASUALTY COMPANY, Appellee (Defendant below).

No. 5020.

Supreme Court of Wyoming.

April 16, 1979.

Raymond B. Hunkins of Jones, Jones, Vines & Hunkins, Wheatland, for appellant.

Frank J. Jones, Wheatland, for appellee.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. ^*

THOMAS, Justice.

The substantive issue to be resolved in this case is whether a certificate of insurance furnished to an insured under a group policy for credit life insurance should control over the provisions of the policy if the terms of the two instruments conflict. The apparent difference is in the respective provisions of the two instruments relating to the insurer's obligation in the event of the suicide of the insured. Because of the contents of the record a threshold question of whether the fact of the insured's suicide was before the trial court must be resolved. The trial court granted a motion for summary judgment filed by the insurance company. Although the ground for the trial court's decision is not stated, the result is consistent with a conclusion that the insured did commit suicide, and the policy provision relating to suicide is to be applied rather than the similar provision in the certificate of insurance. We shall affirm the judgment of the district court.

The action was brought by the widow of Henry R. Poling, who was an insured under a group credit life insurance policy issued by North American Life and Casualty Company. The policy was issued in connection with a promissory note evidencing a loan that Poling and his wife obtained from the First National Bank of Chugwater. The Polings paid the premiums on the insurance policy, which amounted to $244.80 at the time of Henry Poling's death.

Pursuant to the company's policy, a "Certificate of Insurance" was prepared and sent to Henry Poling. Although the bank transmitted the certificate, the document was prepared by the insurance company. The certificate states that it describes the principal provisions of the group policy, and that it is subject to all provisions of the group policy. A suicide clause is included in the certificate. That clause reads:

"SUICIDE: If death of the Insured Person occurs by Suicide, while sane or insane, within ______ year(s) from the Insured Person's Effective Date for the insurance provided by this Policy, the liability of the Company will be limited to the premiums paid for such Insurance."

An identical clause appears in the master insurance policy issued to the bank. In the master policy, however, the blank space appearing in the clause in the certificate is filled in with the word "two," and it provides that should the death of the insured occur as a result of suicide within two years from the effective date for the insurance the company's liability will be limited to the premiums paid for the insurance.

Other sections of the master policy which are pertinent to this case are paragraphs 1 and 4 of the general provisions. Paragraph 1 reads:

"ENTIRE CONTRACT CHANGES: This Policy and the application of the Policyholder, a copy of which is attached to this Policy, and the applications, if any, of the Insured Persons, will constitute the entire contract between the parties * * *."

Paragraph 4 reads:

"CERTIFICATES: The Company will issue to the Policyholder for delivery to each Insured Person, an Individual Certificate summarizing the benefits for which the Insured Person is insured by this Policy including any changes in the amount of Insurance because of a change in classification and the rights to which such Insured Person is entitled in case of termination of Insurance or termination of this Policy. Such Certificate will not constitute a part of this Policy nor will it change, modify or invalidate any of the terms and conditions of this Policy." (Emphasis supplied.)

The substantive issue as presented to the lower court and to this court on appeal is which of the suicide clauses, the one contained in the master policy or the one contained in the certificate, should be applied to determine the rights of the parties. Implicit in the argument of Mrs. Poling is the assumption that the clause in the certificate would properly be construed as having a zero where the blank appears. She urges that the two-year period during which the payment of benefits is limited should be disregarded when the insurance company failed to include such a limitation in the certificate given to the insured. Before the substantive issue is determined a threshold procedural question must be resolved. Mrs. Poling suggests that the fact of suicide is not present in the record, and since it is not the district court should have granted her motion for summary judgment instead of granting the motion filed by North American Life and Casualty Company.

The record indeed is lean if not gaunt. It may be summarized fairly for our purposes as consisting of the Complaint; the Answer; the Affidavit of Mrs. Poling to which is attached the Certificate of Insurance upon which she relies; Mrs. Poling's Motion for Summary Judgment; an Affidavit in Support of Motion for Summary Judgment by Ed Brown which was presented by Mrs. Poling; a Memorandum Brief filed by Mrs. Poling; a Motion for Summary Judgment filed by North American Life and Casualty Company; a Stipulation presenting for consideration by the court the master insurance policy and the Employment Contract between Mrs. Poling and her attorney; the Order Granting Summary Judgment which was entered in favor of North American Life and Casualty Company; and Mrs. Poling's Notice of Appeal. The word "suicide" does not appear in this record except for the references in the certificate of insurance and the master insurance policy and in several places in Mrs. Poling's Memorandum Brief. We find before us a case in which the fact of suicide is not positively present, yet one in which the only issue the parties discuss relates to an asserted conflict between the suicide clauses of the certificate of insurance and the master insurance policy.

We are not unmindful of cases which hold that the insurer should plead suicide as an affirmative defense in an action brought upon an ordinary life policy. New York Life Ins. Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948 (1938); Bondurant v. Brotherhood of American Yeomen, Mo.App., 199 S.W. 424 (1917); Municipal Securities Corp. v. Metropolitan Street Ry. Co., 196 Mo.App. 518, 196 S.W. 400 (1917); Dent v. National Life & Accident Ins. Co. of Tennessee, Tex.Civ.App., 6 S.W.2d 195 (1928); Federal Life Ins. Co. v. Wilkes, Tex.Civ.App., 218 S.W. 591 (1920). In this instance we find a complaint which alleges life insurance coverage, the death of the insured, demand for payment, tender of the sum of $244.80 as payment in full, which was rejected, further demand for payment and entitlement to attorney's fees. The Answer of North American Life and Casualty Company effectively admits all factual allegations of the Complaint, but also effectively denies liability. The sum of $244.80 is clarified in Mrs. Poling's Memorandum Brief as representing the premiums paid for the life insurance coverage. We also know that Mr. Poling's death occurred within two years of the effective date of his insurance coverage. The suicide clause in both the certificate of insurance and the master insurance policy limits the company's liability to the premiums paid for such insurance in the event of suicide if the clause is applicable.

We have no question that the better practice is for an insurance company relying upon suicide as a defense to plead that fact as an affirmative defense in its answer. In the vast majority of instances that would sharply focus a factual issue. In this case, however, that fact obviously was assumed by both parties and the district court. We conclude, therefore, that the issue was injected sufficiently by the plaintiff's allegation of the tender of the premiums, which was admitted by North American Life and Casualty Company, and which was the limit of the company's obligation in the event of suicide. We can discern no element of unfairness, surprise, or any policy consideration which in this instance should inhibit us from treating the case as the parties presented it to the district court and as they have argued it in our court. As to this...