Womack v. Allstate Ins. Co.
| Decision Date | 21 November 1956 |
| Docket Number | No. A-5748,A-5748 |
| Parties | Malcolm WOMACK et al., Petitioners, v. ALLSTATE INSURANCE COMPANY, Respondent. |
| Court | Texas Supreme Court |
Shaw & Daniel, Casey Charness, Lubbock, for petitioners.
Sanders, Scott, Saunders & Smith, Amarillo, for respondent.
This is a summary judgment case. On January 4, 1952, Allstate Insurance Company, respondent, issued a policy of public liability automobile insurance to Mrs. L. N. Coffee, the wife of William T. Coffee. Petitioners, Malcolm Womack and others, recovered judgment in the 99th District Court of Lubbock County against William T. Coffee for the damages which they sustained on July 20, 1952, when the automobiles in which they were riding collided with a vehicle operated by the latter. Execution having been issued and returned nulla bona, petitioners instituted this suit to recover the amount of the judgment from respondent, alleging that at the time of the accident William T. Coffee was driving, with the consent of the insured, the automobile covered by respondent's policy. The trial court entered summary judgment for respondent, and the Court of Civil Appeals affirmed, with one justice dissenting. 286 S.W.2d 308. It is our opinion that the motion for summary judgment should have been denied.
In support of the summary judgment in its favor, respondent contends: (1) that the policy was cancelled by respondent prior to the collision in question, (2) that a material misrepresentation of fact, made a part of the policy, invalidated the policy at the option of respondent, and (3) that the insured failed to forward to respondent the citation in the damage suit as required by the provisions of the policy and did not notify respondent of such suit. The majority of the Court of Civil Appeals concluded that respondent had established its rights to a summary judgment on the first of these grounds.
The policy contains the usual provision authorizing its cancellation 'by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective.' On May 26, 1952, respondent mailed a letter addressed to the insured at 3001 East 4th Street, Lubbock, Texas, which is the address shown on the face of the original policy, advising that the policy was cancelled as of June 7, 1952, and enclosing a check for $22.32 as a refund of the unearned premium. This letter was returned to respondent by the Post Office Department marked 'Out of Bounds' and 'For Better Address.'
Respondent's answers to petitioners' requests for admissions disclose that on or about March 26, 1952, the assured instructed one of the respondent's agents to change her address from that shown in the policy to 'General Delivery, Lubbock, Texas,' that the agent executed a 'From R-42, Request for Service' changing the address as requested and mailed the same to respondent, and that on or about that date respondent 'made a proper record of the change of address.' Neither the contents of Form R-42 nor the character of record which respondent made of the change of address can be determined from any of the papers filed in the case.
The address of the insured as shown in the original policy was subject to change by the parties at any time, and in the event of such change the cancellation letter could not be effective unless mailed to the most recent policy address. The contract provides that its terms may not be changed except by endorsement issued to form a part of the policy, but it does not affirmatively appear, by affidavit or otherwise, that no endorsement was issued changing the address of the insured from that shown on the face of the original policy. Since the facts were not fully developed, we cannot determine the legal effect of either the form sent in by the agent or the 'proper record' made by respondent, but either or both might be sufficient to effect a change in the policy address.
In passing upon a motion for summary judgment, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the opposite party is entitled to the benefit of every reasonable inference which can properly be drawn in his favor. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Under the present record, there is considerable doubt as to whether the cancellation letter was mailed to the most recent policy address of the insured, to and it is our opinion that respondent failed to establish its right to summary judgment on the cancellation theory.
Turning now to the second ground urged by respondent in support of the judgment in its favor, the application for insurance signed by Mrs. Coffee states that the applicant has not had a driver's license suspended, revoked or refused during the last two years, and the policy contains a declaration to the same effect. Respondent alleged that these representations were untrue because the automobile driver's license of the insured had been suspended during the period of two years immediately prior to the issuance of the policy, and that such representations were material to the risk and were intentionally made for the purpose of misleading respondent. To establish the truth of these allegations, respondent filed affidavits of the custodian of the records of the Drivers License Division of the Texas Department of Public Safety certifying that the driver's license of Laura Thompson Coffee was suspended on July 23, 1951, and an affidavit by one of respondent's representatives that Mrs. L. N. Coffee and Laura Thompson Coffee are one and the same person. We shall assume that the affidavits establish that the driver's license of the insured was suspended as alleged.
Under the provisions of art. 21.17 of our Insurance Code, V.A.T.S., misrepresentations made in the application for or in obtaining an insurance contract do not constitute a defense unless the insurer establishes that within a reasonable time after discovering the falsity of the representations, it gave notice that it refused to be bound by the contract. The statute also provides...
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