Slobojan v. Western Travelers Life Ins. Co.

• Decision Date: 20 February 1969
• Citation: 70 Cal.2d 432,450 P.2d 271,74 Cal.Rptr. 895
• Court: California Supreme Court
• Parties: , 450 P.2d 271 Beverly M. SLOBOJAN, Plaintiff and Appellant, v. WESTERN TRAVELERS LIFE INSURANCE COMPANY, Defendant and Appellant. L.A. 29351.

Page 895

74 Cal.Rptr. 895

70 Cal.2d 432, 450 P.2d 271

Beverly M. SLOBOJAN, Plaintiff and Appellant, v. WESTERN TRAVELERS LIFE INSURANCE COMPANY, Defendant and Appellant.

L.A. 29351.

Supreme Court of California,

In Bank.

Feb. 20, 1969.

Church & Howard, Charles H. Church, John S. Hunt and Charles F. Howard, Los Angeles, for defendant and appellant.

Boller, Suttner & Boller and Albert J. Morrissey, Arcadia, for plaintiff and appellant.

BURKE, Justice.

In this declaratory relief action defendant insurance company appeals from a judgment determing that life insurance coverable for which plaintiff's husband had applied was in force on the date of his death, and that his death was accidental within the double indemnity clause of the insurance. The ruling that insurance was in force was made upon plaintiff's motion for partial summary judgment (Code Civ.Proc., § 437c), and the ruling that death was accidental was thereafter made following trial on that issue before another judge sitting without a jury. Plaintiff cross-appeals from that portion of the judgment which denies her interest prior to entry of judgment. We have concluded that plaintiff is entitled to the interest she claims, and that the judgment in her favor should be affirmed in all other respects.

1. Summary Judgment Ruling That Coverage Existed.

The allegations of plaintiff's complaint may be summarized as follow: Her husband, John M. Slobojan, signed an application of defendant insurance company for an insurance policy on his life in the amount of $25,000 with double-indemnity provision covering death by accident with respect to the first $5,000, and designating plaintiff as beneficiary; he also paid the first month's premium of $16.14 by check which defendant deposited in its account. About one week later, at defendant's request Slobojan was examined by defendant's doctor and advised that he was a good physical risk; on the same day defendant issued its policy of insurance on Slobojan's life and forwarded the policy to its agent for delivery to the insured. The agent notified Slobojan that the policy was ready but that the premium for the double-indemnity coverage was 44 cents per month higher than that stated in the application, and requested that the extra 44 cents for the first month's premium be added to his check for the second month's premium. Five days later Slobojan died an accidental death. Plaintiff notified defendant of the death and asked for the policy and claim forms to enable her to make a claim under the policy, but defendant refused to deliver the policy to plaintiff or to accept her claim and make payment under the policy, asserting that no contract of insurance was in existence and that defendant had no liability.

After answer by the defendant denying liability, the taking of certain depositions, and receipt of defendant's replies to plaintiff's request for admission of facts (Code Civ.Proc., § 2033), plaintiff moved for a partial summary judgment under Code of Civil Procedure section 437c on the ground that there was no defense to the action on the issue of insurance coverage, as distinguished from the factual issue of cause of death. The motion was granted, and defendant challenges the court's ruling.

The matter to be determined by the trial court on a motion for summary judgment is whether facts have been presented which give rise to a triable factual issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue of fact. The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. (Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 146--147(9), 60 Cal.Rptr. 377, 429 P.2d 889; Pettis v. General Tel. Co. (1967) 66 Cal.2d 503, 505(1--5), 58 Cal.Rptr. 316, 426 P.2d 884; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) The moving party cannot depend upon allegations in his own pleadings to cure deficient affidavits, nor can his adversary rely upon his own pleadings in lieu or in support of affidavits in opposition to a motion; however, a party can rely on his adversary's pleadings to establish facts not contained in his own affidavits. (Joslin v. Marin Mun. Water Dist., Supra, at pp. 147--148(10), 60 Cal.Rptr. 377, 429 P.2d 889.)

Applying the foregoing rules to the record in the present case, with all intendments in favor of the party opposing the motion--here, defendant--it appears that in September 1964 defendant's agent, Miss Fuller, submitted a proposal for an insurance program to Slobojan, aged 31, who was a deputy sheriff for the County of Los Angeles, and told him that if he used a motorcycle in his duties the premium would be $50 more per year than the amount quoted. However, Slobojan was not a motorcycle officer.

On or about October 19, 1964, Slobojan signed and delivered to Miss Fuller an application to defendant, on the latter's printed form, for life insurance in the amount of $25,000 with an accidental death benefit supplement of $5,000; the application quoted a monthly premium of $16.14, and specified the mode of premium payment to be by postdated checks. Miss Fuller had 'quoted the standard risk premium for the coverages he requested to be $16.14 per month * * * (and) explained to (Slobojan) that no insurance would take effect until the Application was accepted by the Company, and a policy issued and accepted by him and that he would be required to take a physical examination.'

On October 19 or 20, 1964, Miss Fuller in the mail from Slobojan his check dated October 16, 1964, for $16.14 payable to defendant, as well as eleven postdated checks for $16.14 each. On the same day Miss Fuller detached from the application and mailed to Slobojan a 'Conditional Receipt' dated October 19, 1964, bearing the same number as the application, and acknowledging receipt of $16.14. On October 22, 1964, defendant deposited Slobojan's first check of $16.14.

On Friday, October 23, 1964, Miss Fuller notified Mrs. Slobojan by telephone that the premium would be 44 cents per month higher because Slobojan was a police officer who made arrests. Mrs. Slobojan promised to advise her husband of the higher premium, and agreed that if Miss Fuller had not heard from them by the following Monday the policy should issue. On Monday Miss Fuller requested defendant to issue the policy.

On the same Monday, October 26, Slobojan underwent a medical examination as required by defendant. On October 28 defendant received the medical report and issued and sent to Miss Fuller its policy, dated October 26, 1964, for the insurance coverage provided in the application, but reciting a monthly premium of $16.58 if paid by postdated checks. Defendant also sent to Miss Fuller the original eleven postdated checks of $16.14 and an amendment to the application which would acknowledge a 44 cents per month higher premium for the accidental benefit supplement. Defendant instructed Miss Fuller to secure eleven new postdated checks, of $16.58 each, as well as Slobojan's signature to the amendment. Defendant's instructions to Miss Fuller closed with the statement: '$16.14 RECEIVED WITH APPLICATION. INITIAL MONTHLY PREMIUM $16.58 BALANCE DUE $.44 CHARGED TO AGENCY ACCOUNT.'

On Friday, October 30, 1964, Miss Fuller wrote to Slobojan stating, 'Your policy is ready for you and will be mailed to you immediately upon the return of the enclosed 'Amendment to Application' signed by you. * * * ' With the letter Miss Fuller returned the original eleven postdated checks and requested 'eleven more. The first one for $17.02 and the others for $16.58.' Thus the additional 44 cents for the first monthly premium was to be added to the first of the new postdated checks. On the same day Miss Fuller again requested Slobojan by telephone to let her know whether or not he wished to accept a policy on the terms offered by the Company. He stated that he had been inquiring about premium rates from other companies and would let her know whether or not he wished to accept a policy from defendant.

Miss Fuller did not hear from Slobojan, and on November 5, 1964, she again telephoned him and in answer to his inquiries again explained the differences between various types of coverage. At that time it was obvious that he had been talking to others about insurance. He promised to call Miss Fuller the following day to let her know whether he wanted the policy, but he failed to do so. On November 7, 1964, Slobojan collapsed and died after chasing a robbery suspect in the course of his duties as a deputy sheriff. Miss Fuller thereupon returned the policy to defendant.

If our inquiry ended here the question of whether coverage existed at the time of Slobojan's death would appear to be a very close one, but the terms of the 'Conditional Receipt' and a previous court decision interpreting a similar receipt support the trial judge's view that coverage existed. The face of the 'Conditional Receipt' which Miss Fuller detached from the application and sent to Slobojan acknowledging receipt of the $16.14 represented by his first check, reads: 'This receipt must be detached and delivered to applicant when payment is made. * * * It shall operate as a Binding Receipt only under the conditions set forth. * * *

'Received $16.14, which is tendered subject to conditions on the reverse side of this receipt, on account of full first premium on proposed insurance on life of proposed insured * * * for which an application * * * is this day...