Washington National Insurance Company v. Burch, 18599.
| Decision Date | 04 August 1961 |
| Docket Number | No. 18599.,18599. |
| Citation | 293 F.2d 365 |
| Parties | WASHINGTON NATIONAL INSURANCE COMPANY, Appellant, v. J. D. BURCH, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Lundie Smith, Valdosta, Ga., for appellant.
D. Dudley Smith, Will Ed Smith, Eastman, for appellee.
Before JONES and BROWN, Circuit Judges, and DE VANE, District Judge.
DE VANE, District Judge.
This is the second appearance of this case before this Court. The decision of this Court upon the first appeal is reported in 270 F.2d 300. When the case was here before, the decision of the District Judge was reversed on the ground that the defenses sought to be interposed by the appellant were not foreclosed by the incontestable clause of the Master Policy and the case was sent back to the District Court for trial on the merits.
The case was then tried to a jury and after the introduction of evidence and argument of counsel, the case was submitted to the jury, which returned a verdict for the appellee in the full face amount of the insurance. It is this judgment that is now before this Court.
Briefly summarized, the facts are as follows: Appellant issued a Master Policy of group life insurance to the American Turpentine Farmers Association Co-operative, an incorporated association of Valdosta, Georgia, referred to in the policy as the "Holder". The Master Policy bound the insurance company to pay, upon the death of an insured person, "the sum to which such insured person is entitled in accordance with the classification specified in the Schedule of Insurance" set out in the Master Policy.
The Schedule of Insurance included various classifications of "insured persons", and limited the amount of insurance which eligible persons within each group might obtain upon the basis of the individual's "classification" within the group. Only two of the Classifications are relevant here.
1. Owners, Executives and
Directors with 20,000 or
more "faces" (trees being
worked for turpentine) $10,000.00
1A. Owners, Executives and
Directors with less than
20,000 "faces" $2,500.00
The Master Policy was put into effect and operation on August 1, 1955, and appellant sent into the area an agent to solicit insurance from the individual members of the American Turpentine Farmers Association Cooperative.
W. A. Burch was in the turpentine business with two of his sons, J. D. Burch and L. R. Burch, doing business as Burch Brothers. The three members of the firm desired insurance as follows: J. D. Burch $10,000, W. A. Burch $5,000, L. R. Burch $1,000. The insurance agent of appellant required each to take a $10,000 policy, which was issued and became effective on September 1, 1955.
L. R. Burch died in October, 1956, and the insurance company paid his beneficiary the $10,000 provided for in the policy held by him. After his death, the partnership was continued on the same basis with Mrs. L. R. Burch substituted for her deceased husband. She obtained a $10,000 policy of insurance on her life.
Premiums on the $10,000 insurance policy on the life of W. A. Burch were paid as required by the policy through December, 1956. W. A. Burch suffered a heart attack on November 17, 1956, and died on December 3, 1956.
The latter part of October, 1956, a representative of the Turpentine Cooperative (holder) endeavored to obtain from the office of the Naval Stores Conservation Program at McRae, Georgia, the exact number of "faces" that Burch Brothers were working on September 1, 1955, and he ascertained from these records that the total number of turpentine faces being worked was a little more than 18,000. On November 9, 1956, he wrote a letter to J. D. Burch advising that he had found that in 1955 18,270 faces were being worked, that an honest mistake had been made and that it was necessary to reduce the amount of insurance on J. D. Burch and W. A. Burch from $10,000 to $2,500, as well as the insurance on Mrs. L. R. Burch, who had succeeded to her...
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...of NBA in the soliciting of new individual insureds, NBA could be considered an agent of American National. See Washington Nat'l Ins. Co. v. Burch, 293 F.2d 365 (5th Cir.1961)(holding that under Georgia law a holder of a master insurance policy is an agent of the insurance company and not t......
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Piper v. American National Life Insurance Company of Texas, CIVIL ACTION NO. 1:CV-99-2190 (M.D. Pa. 9/25/2002)
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