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07/26/83 ARLENE A. PHILP v. MINNESOTA MUTUAL LIFE

July 26, 1983

ARLENE A. PHILP, RESPONDENT,
v.
MINNESOTA MUTUAL LIFE INSURANCE COMPANY, APPELLANT.



From the Circuit Court of Clark County; Civil Appeal; Judge Bruce Normile; Reversed and Remanded

Motion for Rehearing Overruled, Transfer Denied September 15, 1983.

Before Stewart, C.j., Reinhard, Dowd, Crist, JJ.

The opinion of the court was delivered by: Reinhard

Defendant appeals after a jury verdict awarding plaintiff $159,600.00 plus interest. We reverse and remand.

Plaintiff filed suit after defendant-insurance company refused to pay to plaintiff life insurance benefits after the death of plaintiff's husband on a temporary insurance policy issued by defendant. Plaintiff alleged that defendant was estopped to deny coverage because of representations made by defendant's agent that defendant would notify the plaintiff when the temporary policy lapsed. *fn1 Defendant claimed the policy lapsed by its own terms and that its agent had no authority to bind defendant.

The evidence established that plaintiff and her husband Michael Philp purchased Michael's mother's 450 acre farm. In June, 1979, they received a loan of $159,600.00 through the Federal Land Bank of Northeast Missouri. Sam Berendzen, the Federal Land Bank loan officer serving the Philps, told the couple that they could at their option apply for credit life insurance.

Defendant has no field agents. The Federal Land Bank had a contract with defendant, whereby the latter made available credit life insurance to bank's borrowers. The contract enumerated certain services to be rendered by the Land Bank, stating however that the services to be performed by the Land Bank were not limited to those. Specific services mentioned were (a) communication of the plan to association borrowers; (b) taking mortgage insurance applications from borrowers; (c) periodic promotional mailings to current borrowers; (d) contact with bank and the insurer on questions about the plan; (e) filing claims with their insurer and general record keeping requirements. In return, the Land Bank was to receive a service fee equaling 15 % of the average annualized premium during the policy year.

At the loan closing on July 25, 1979, Michael Philp applied for permanent credit life insurance for the full amount of the farm loan. Philp had secured two such insurance policies from other companies for the value of farm equipment prior to the loan closing and he obtained another, also from another company, for a combine subsequent to July 25. Berendzen gave him application forms on which Michael Philp's name had already been typed. Berendzen went through the application with the Philps. The application sought information regarding Michael's health background. Michael was asked whether he had been hospitalized during three preceding years and whether he had ever experienced certain disorders, including heart and nervous problems. Michael answered both affirmatively. Michael had been hospitalized for a stroke at the University of Iowa Hospital in Iowa City, Iowa. He also received treatment for back problems at the University of Missouri Medical Center in Columbia, Missouri, and was hospitalized at the Blessing Hospital in Quincy, Illinois, for an undisclosed problem. Michael did not list these hospitalizations, however, because he could not remember the names of the attending physicians. Berendzen said it would be sufficient to give the name of his current doctor. Accordingly, Michael only listed the name of Dr. John Beckert of Kahoka, Missouri. Dr. Beckert's last examination of Michael Philp on May 19, 1979 revealed that he suffered from no serious illness.

When he finished the application, Michael received another application for temporary insurance to cover the mortgage while the regular application was being considered. The temporary policy form stated that it would commence on the date of application as long as: (a) the borrower completed the application for long-term insurance; (b) the borrower answered all questions on the form; (c) all such answers were correct as to the material facts; (d) the Land Bank had disbursed all or part of the loan proceeds, and (e) the borrower had paid the first premium. The temporary insurance provided 75 days of coverage after the loan closing, but could lapse sooner upon defendant's approval or rejection of the permanent insurance application. The application also stated that the first premium payment would be refunded if the applicant failed to comply with the five conditions or if the application was rejected or not accepted within 75 days. Plaintiff paid the first premium by check before leaving the loan closing.

When plaintiff's husband completed the temporary insurance application, plaintiff asked Berendzen whether they would be notified when the short-term policy ended. She explained that they would probably lose track of time during the harvest season and would want to know as soon as possible. He said they "should be" notified.

Philp's application arrived at defendant's underwriting department August 6, 1979. Delores Schneider, the underwriter who processed the application, wrote Michael on August 8, to request more information about his medical history. His reply, received on August 29, repeated Dr. Becker's name and also indicated that he was treated for nerves in 1977. It did not mention his other ailments. The underwriter again wrote Michael to request that he undergo a physical, which was performed by a nurse, Janet Nixon. Her report listed the hospitalizations, including the stroke treatment, but defendant did not receive it until October 12.

Plaintiff received a letter dated October 8, informing her that the application for long-term insurance was still pending. The letter did not mention the status of the temporary policy. Michael Philp died October 11 in a head-on collision of two trucks. The 75 day period had passed four days earlier.

On October 18, plaintiff contacted Linda Harvey, an office assistant at the Federal Land Bank, for instructions on how to claim the insurance. Plaintiff believed the farm loan was still covered at that time. Harvey telephoned the defendant's office, reported Michael's death, and inquired into the status of the policy. Subsequently that same day, defendant called Harvey and informed her that Michael's application had been denied. This information was conveyed orally to plaintiff. On October 22, defendant sent a letter to plaintiff informing her that the 75 day period lapsed before Michael's death and that Michael's application had been rejected due to his medical history. The initial premium payment was returned with the defendant's letter on October 22. Defendant presented evidence that it had internally rejected the application for insurance on October 16, 1979 because of Michael's health.

Berendzen testified on defendant's behalf, denying that he told the Philps they would be notified when the policy ended. He stated he played no part in the decision to approve or reject an applicant for insurance and lacked authority to make statements contrary to defendant's application forms. Berendzen conceded, however, that the bank's loan officers are trained to take applications for the defendant's insurance and that defendant's employees attend monthly meetings with Land Bank loan officers and visit their offices periodically. Berendzen also testified that all the ...


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