Weed v. Lepianka

• Decision Date: 01 March 1966
• Parties: Earl WEED, Appellant, v. Anna LEPIANKA, Defendant, Aetna Casualty & Surety Co., Respondent. Mrs. Edna WEED, Appellant, v. Mrs. Anna LEPIANKA et al., Defendants, Aetna Casualty & Surety Co., Respondent. Martha STANKEVITZ, Appellant, v. Anna LEPIANKA et al., Defendants, Aetna Casualty & Surety Co., Respondent.
• Court: Wisconsin Supreme Court

Page 305

140 N.W.2d 305

30 Wis.2d 198

Earl WEED, Appellant, v. Anna LEPIANKA, Defendant, Aetna Casualty & Surety Co., Respondent.

Mrs. Edna WEED, Appellant, v. Mrs. Anna LEPIANKA et al., Defendants, Aetna Casualty & Surety Co., Respondent.

Martha STANKEVITZ, Appellant, v. Anna LEPIANKA et al., Defendants, Aetna Casualty & Surety Co., Respondent.

Supreme Court of Wisconsin.

March 1, 1966.

Martineau & Martineau, Marinette, for appellants.

Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, for respondents.

HEFFERNAN, Justice.

It is basically the position of the appellants that the delivery of the policy to the agent Wood was in effect delivery to the assured and was hence sufficient to effect coverage. There is no doubt that, in some situations, the delivery to the agent could be construed to be delivery to the assured, but the basic rule as stated by Appleman is:

'Delivery of a policy is largely a question of intent, that which the conduct or agreement of the parties shows was intended by them being controlling in determining what constitutes a delivery.' 12 Appleman Insurance Law and Practice, p. 226, sec. 7157.

Delivery to the agent may be delivery to the assured:

'If the insured has done everything necessary to entitle him to possession of the policy, and there rests upon the agent the simple ministerial duty of transferring the policy to the insured, then the agent of the insurer in effect holds the policy for the insured, and it is binding on the parties without physical transfer.' Vance, Law of Insurance (hornbook series, 3d ed.), p. 254, sec. 43.

However, for these rules to be of any relevance there must be more than just a unilateral action by the insurance company. All of the additional elements of a contract must be present. Mr. Wood testified that after he received the policy he was obliged to go out and sell it. There is no evidence whatsoever to show that possession by Wood was intended to constitute delivery to Mrs. Lepianka. There was in fact evidence that delivery to her would be made only upon payment. The trial court correctly held that under the circumstances there was no legal significance in the pre-issuance of the policy by Aetna and its delivery to Wood. It merely made the policy available if a contract were otherwise entered into between Wood, as the agent of Aetna, and Mrs. Lepianka.

In effect the appellants contend that as the result of the granting of credit on the issuance of the policies for the two preceding years, that the parties had arrived at the custom that credit was again to be extended to her, and that she had reason to believe that she was afforded insurance coverage on a credit basis.

We do not deny that such circumstances can arise. The custom of insurance companies of automatically renewing policies year after year and then billing then customer later could well estop the company's denial of coverage, even though a tender of payment was not made until after the loss. That, however, is not the fact situation here. Whether the policy was to be renewed depended not only upon the past course of dealings between the parties, but upon the transaction with respect to this particular policy. It is undisputed that if the payment of premium were a condition precedent for insurance coverage, then no coverage was afforded in this instance. The court found that prepayment was required.

The trial judge found, as a matter of fact, that Wood on or about March 23rd wrote to Mrs. Lepianka and advised her that her policy of insurance would expire on April 23, 1959, and that he would not extend credit to her or continue in effect the coverage afforded by Aetna after the expiration of the policy unless she paid the premium. This court is bound by these factual determinations unless they are contrary to the great weight and clear preponderance of the evidence. Hausmann v. Wittemann (1965), 26 Wis.2d 482, 485, 132 N.W.2d 537; Tiedeman v. Middleton (1964), 25 Wis.2d 443, 130 N.W.2d 783; Estate of Beat (1964), 25 Wis.2d 315, 130 N.W.2d 739.

While Mrs. Lepianka denied the receipt of such letter, Wood testified that he mailed it, and the trial judge found that the notice was received by Mrs. Lepianka. While the matter if viewed ab initio is not entirely free from doubt, we cannot say that the finding is contrary to the great weight and clear preponderance of the evidence, particularly when viewed...