Young v. Fidelity U. Life Ins. Co., 77-1606
| Decision Date | 30 April 1979 |
| Docket Number | No. 77-1606,77-1606 |
| Citation | 597 F.2d 705 |
| Parties | Charlotte Meier YOUNG, in person and as Assignee in trust for her minor sons, Norbert Nelson and Ulrich Waldemar Young, Plaintiff-Appellant, v. FIDELITY UNION LIFE INSURANCE COMPANY, a Stock Company, Dallas, Texas, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Wesley R. Thompson, Sapulpa, Okl., for plaintiff-appellant.
James M. Sturdivant, Tulsa, Okl. (Elsie Cox Draper and Gable, Gotwals, Rubin, Fox, Johnson & Baker, Tulsa, Okl., on brief), for defendant-appellee.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
The issue here is whether the trial court erred in holding that a policy of life insurance issued to one Thomas Alexander Young by Fidelity Union Life Insurance Company had lapsed for non-payment of premiums prior to Young's death. We hold that the trial court did not err, and we therefore affirm.
Charlotte Meier Young, in her own name and as a so-called "assignee in trust" for two minor sons, brought the present action against Fidelity Union on a policy of life insurance issued to another son, Thomas Alexander Young. The latter was shot and killed by a robber on February 14, 1975. One issue formed by the pleadings was whether the policy of insurance was in force and effect on the date of the insured's untimely death or, on the contrary, had lapsed because of non-payment of premiums. Both Young and Fidelity Union filed motions for summary judgment supported by affidavits and depositions. The trial court granted Fidelity Union's motion and denied Young's. The latter now appeals the judgment entered in favor of Fidelity Union.
On September 16, 1974, Thomas Alexander Young completed and executed an application for life insurance with Fidelity Union through its local Oklahoma agent. The application was for life insurance in the amount of $20,000, with double indemnification in the case of accidental death and with a provision for waiver of premiums in the event of disability. On the date that Young completed the application, he gave the local agent a money order in the amount of $30.06 as payment for the first month's premium. The money order was forwarded to Fidelity Union along with the application. The application contained the following language concerning the effective date of the policy:
I agree that there shall be no liability hereunder until a policy shall be issued and manually delivered while the state of health of the Proposed Insured is as stated in this application and the first premium actually paid. If the full first premium is paid at the time of this application and in exchange for the Conditional Receipt bearing the same number as this application and if on that date the Proposed Insured was, in the opinion of the Company's authorized officers at its Home Office, insurable and acceptable under the Company's rules and practices for the policy, in the amount, on the plan, and otherwise exactly as applied for, then the insurance shall be effective from this date or the date of the last of any medical examinations or questionnaires required by the Company, if later, subject to the terms of the policy applied for and of the Conditional Receipt.
In exchange for the first month's premium, the local agent gave Young a so-called Conditional Receipt which bore the same number as the application and contained the following language:
1. This payment is made and accepted subject to the following conditions: (1) if settlement for the first full premium is made at the time of making this part of the application and (2) if on that date Proposed Insured was, in the opinion of the Company's authorized officers at its Home Office insurable and acceptable under the Company's rules and practices for the policy in the amount, on the plan, and otherwise exactly as applied for; and if both conditions are met then the insurance shall be effective from date of this application, or the date of the last of any medical examinations or aviation or occupational questionnaires required by the Company in connection with this application, if later.
On September 18, 1974, a policy of life insurance was issued to Young by Fidelity Union in the face amount of $20,000, with a double indemnity provision in case of accidental death and with a provision for waiver of premium in the event of disability. The policy was mailed by Fidelity Union on October 1, 1974, to the local agent for delivery to Young. Young was then in military service and stationed at Lackland Air Force Base in Texas. The local agent wrote to Young informing him that the policy had been received.
Fidelity Union's pre-authorized check drawn on Young's account in the Utica National Bank and Trust...
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