Zepczyk v. Nelson

• Decision Date: 09 May 1967
• Citation: 35 Wis.2d 140,150 N.W.2d 413
• Parties: George ZEPCZYK et al., Plaintiffs-Respondents, v. John H. NELSON, Defendant-Respondent, St. Paul Fire & Marine Ins. Co., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 413

150 N.W.2d 413

35 Wis.2d 140

George ZEPCZYK et al., Plaintiffs-Respondents, v. John H. NELSON, Defendant-Respondent St. Paul Fire & Marine Ins. Co., Defendant-Appellant.

Supreme Court of Wisconsin.

May 9, 1967.

Pray, Pray & Clark, Ashland, for appellant.

John W. Slaby, Phillips, for plaintiffs-respondents.

HANSEN, Justice.

The order of the trial court denying the motion for summary judgment must be affirmed.

This court has frequently stated that summary judgment should not be granted where there are substantial issues of fact to be determined, when evidence on a material issue is in conflict, or when there are permissible inferences from undisputed facts that would permit a different result. Thompson v. Dairyland Mut. Ins. Co. (1966), 30 Wis.2d 187, 140 N.W.2d 200; Hein v. State Farm Mut. Auto. Ins. Co. (1966), 29 Wis.2d 702, 139 N.W.2d 611; State v. Conway (1965), 26 Wis.2d 410, 132 N.W.2d 539; Fjeseth v. New York Life Ins. Co. (1961), 14 Wis.2d 230, 111 N.W.2d 85. Similarly, the court has said:

'* * * the power of the courts under the summary-judgment statute (sec. 270.635, Stats., 33 W.S.A., p. 309) is drastic and should be exercised only when it is plain there is no substantial issue of fact or of permissible inference from undisputed facts to be tried.'

Voysey v. Labisky (1960), 10 Wis.2d 274, 278, 103 N.W.2d 9, reaffirmed in Foryan v. Firemen's Fund Ins. Co. (1965), 27 Wis.2d 133, 138, 133 N.W.2d 724.

Sec. 209.06(1), Stats., provides:

'209.06 Insurance; application; effect (1) No oral or written statement, representation or warranty made by the insured or in his behalf in the negotiation of a contract of insurance shall be deemed material or defeat or avoid the policy, unless such statement, representation or warranty was false and made with intent to deceive, or unless the matter misrepresented or made a warranty increased the risk or contributed to the loss.'

Under this section of the statute, an insurance company is permitted to avoid liability under a policy because of a false statement or misrepresentation by the insured if (1) the statement was false and made with the intent to deceive (2) the statement increased the risk, or (3) the statement contributed to the loss. Delaney v. Prudential Ins. Co. (1966), 29 Wis.2d 345, 139 N.W.2d 48; Polar Mfg. Co. v. Integrity Mutual Ins. Co. (1959), 7 Wis.2d 443, 96 N.W.2d 822.

It is the opinion of this court that the affidavits and exhibits submitted by the respective parties in the proceedings on the motion for summary judgment present conflicting evidence on material facts and raise substantial factual questions as to whether the defendant insurance company waived or is estopped from relying upon the misstatements of the insured in his application. Taluc v. Fall Creek Farmers Mut. f. Ins. Co. (1931), 203 Wis. 319, 234 N.W. 364. Herein the court held:

'* * * misstatements inserted in the application by the agent without the knowledge of the assured do not become misrepresentations of the insured by reason of the fact that he signed the application.' p. 322, 234 N.W. p. 365.

The Taluc case was cited with approval in Emmco Ins. Co. v. Palatine Ins. Co. (1953), 263 Wis. 558, at page 562, 58 N.W.2d 525 at page 527, and the court further stated:

'The authorities almost unanimously hold that where an agent of an insurance company writes a statement of fact into an application for a policy without making inquiry of the insured, or relying on any information supplied by the insured, the company is precluded on the theory of either waiver or estoppel from showing the falsity of such statement in order to avoid liability upon the policy.'

Also, in Weiss v. Mutual Indemnity Company (1966), 32 Wis.2d 182, 145 N.W.2d 171, the order of the trial court denying a motion for summary judgment was affirmed because there was conflicting evidence on the question of whether the insured examined an application before signing it.

Appellant strongly urges that the principles set forth in Stockinger v. Central National Ins. Co. (1964), 24 Wis.2d 245, 128 N.W.2d 433, and Bade v. Badger Mutual Insurance Co. (1966), 31 Wis.2d 38, 142 N.W.2d 218, sustain its position. Both of these cases are readily distinguishable from this case as it now stands before the court. In Stockinger, supra, the insured looked over the application before he signed it and the court held he was therefore bound by the misrepresentations. In Bade, supra, the application contained deliberate false statements as to pre-existing conditions. These statements did not relate to any future conduct.

Again referring to Stockinger, supra, this court also points out that the application in sec. 204.34(1), Stats., was not considered in arriving at its decision.

In denying the motion for summary judgment, the trial court also correctly considered the provisions of sec. 204.34, Stats.,...