Dallas Fort Worth Insurance Lawyer Blog

A natural question for someone in Grand Prairie, Fort Worth, Dallas, Arlington, or anywhere else in Texas to wonder about. Can the policyholder sue? Can the beneficiary sue? Can an estate administrator sue? The answer is one of those that depends on the facts and circumstances. Here is a case that gives some guidance.
The case is out of the San Antonio Court of Appeals and the opinion was issued in 1996. The style of the case is Mendoza v. American National Life Insurance Company. Here are the facts:
Jerry Mendoza purchased a $25,000 life insurance policy from American National on August 1, 1991. Carrion was a named beneficiary of the policy. The October premium was not paid. The policy provided for a 31 day grace period. On November 1, 1991, the last day of the grace period, American National's district manager, Sitka, verbally agreed to extend the grace period until November 4, 1991. The policy, however, specifically provided that only American National's president, vice-president or secretary had the authority to extend this time period. Jerry Mendoza died in an automobile accident on November 3, 1991. The premium was never paid. In a prior appeal, this court affirmed a summary judgment in favor of American National on Mendoza's breach of contract, negligence and bad faith claims. This appeal concerns the trial court's granting of summary judgment on Mendoza's claims for intentional infliction of emotional distress, Insurance Code and DTPA violations.
In its' opinion the court said that in order to qualify as a consumer under the DTPA, a person must seek to acquire goods or services by purchase or lease and those goods or services must form the basis of the complaint. Lack of privity between a plaintiff and defendant does not preclude a plaintiff from establishing consumer status. Section 541.060 provides standing to "any person" who has been injured by another's engaging in an unfair or deceptive act or practice in the business of insurance. Therefore, a plaintiff may assert causes of action under the DTPA even though the plaintiff is not a consumer. Carrion, a named beneficiary of the policy, would clearly be injured as a result of Sitka's alleged misrepresentations. Therefore, Carrion has standing. Mendoza's mother, in her capacity as representative of his estate, however, does not have standing.
Although the policy provides that Sitka does not have authority to extend its termination date, it is well settled in Texas that such provisions are ineffectual to prevent parol waiver of such provisions and conditions by an authorized agent acting within the scope of his authority. Assuming Sitka exceeded his authority in modifying the agreement, because American National selected Sitka as its agent, American National assumed the risk for Sitka exceeding his instructions. American National cannot escape liability for Sitka's misrepresentation that coverage would be extended until November 4, 1991. The fact that American National conducted an investigation after Mendoza's death to determine if the accident was alcohol related was not conducted in an outrageous manner and could not support an action for intentional infliction of emotional distress.
Only Carrion has standing to assert Insurance Code or DTPA claims. Accordingly, the summary judgment as to Carrion was reversed.
A reading of the above should be confusing to most people. The case serves as yet another illustration for why an experienced Insurance Law Attorney needs to be involved in a claims when an insurance company denies a claim for benefits.

Residents of Grand Prairie, Arlington, Fort Worth, Dallas, and other areas in the State of Texas would want to understand what happens when a policy payment is missed. The following case is one where the policy ended up lapsing. An experienced Insurance Law Attorney may have been able to get a different result.
The case is State Farm Life Insurance Company v. Beaston. The case decided in 1995, by the Texas Supreme Court. Here is some background.
Beaston purchased a graded premium whole life policy from State Farm. The premium on the policy was due on 12/28/93. The thirty-one day grace period expired on 1/28/94. Three days after the expiration of the grace period, Beaston died in an automobile accident. State Farm refused to pay benefits because coverage had expired. Beaston's wife, the beneficiary, brought suit alleging that the policy remained in force because of its dividend-at-death provision. The trial court found the policy ambiguous and instructed a verdict in favor of Beaston with respect to coverage.
The jury found: (1) the defendants had engaged in unfair or deceptive acts and that such conduct was a producing cause of damages to Beaston; and (2) defendants did not: (a) engage in any false, misleading or deceptive act or practice; (b) engage in any unconscionable action or course of action; (c) commit negligence; or (d) commit gross negligence. The jury awarded no policy benefits but awarded $200,000 for past mental anguish and attorney's fees in the amount of forty percent of her recovery. Based on the court's directed verdict and the jury's findings, the court entered judgment in favor of Beaston in the amount of $598,000. The court refused to award damages for mental anguish or to treble the award pursuant to Texas Insurance Code, Section 541.060, because there was no finding the defendants acted knowingly. The Court of Appeals held that mental anguish damages should have been awarded and actual damages should have been trebled. The Court of Appeals further held that Beaston's contingent attorney's fees should be calculated from the total recovery and not the total damages.
In it's analysis of this case, the court said that the interpretation of an insurance contract is governed by the same rules of construction applicable to other contracts. The policy, viewed in its entirety, unambiguously provides that State Farm would use "any available dividend accumulations" to pay all or part of the unpaid premium. Beaston's policy had not accumulated any dividends on its first anniversary and the policy lapsed before its second anniversary. Therefore, no dividend had accumulated. As a result, there were no dividend accumulations available to cure the lapse. Accordingly, Beaston had no coverage under the policy. On an issue of first impression, the Court held a "knowing" violation is required for an insured to recover mental anguish under Section 541.060. Thus, the judgment of the Court of Appeals was reversed and judgment rendered that Beaston take nothing.
This case has a harsh result.
Referring to the first paragraph above, this author is not saying that an experienced Insurance Law Attorney would have resulted in a favorable outcome. Rather, this author is saying that there are many ways to get around late payments and missed payments and that the odds of knowing about these ways are greatly increased with an attorney who has dealt with the situation in the past.

People in Weatherford, Mineral Wells, Aledo, Hudson Oaks, Willow Park, Brock, Millsap, Springtown, Cool, Peaster, and other places in Parker County might be interested in this life insurance case.
The case is a 1996, opinion issued by the Southern District of Texas. The style of the case is Bates v. Jackson National Life Insurance Company. Here are some facts.
Bates' children sued Jackson National for proceeds of a life insurance policy issued to Bates. The children asserted causes of action for breach of contract, bad faith, Insurance Code violations and DTPA violations.
On October 31, 1991, and November 1, 1991, Bates was diagnosed with phlebothrombosis and diabetes, respectively. On November 12, 1991, Bates submitted an application to Jackson National in which he represented he had not consulted or been treated by a physician in the last five years and that he had not submitted to an x-ray or any laboratory studies or tests. Furthermore, Bates represented in the application that he had not been told he had any disease, abnormality or diabetes. The policy issued and the application was attached to and made a part of the policy.
On November 11, 1992, Mr. Bates was murdered by an ex-lover of his girlfriend / common law wife. The kids timely filed a claim with Jackson National. Jackson National denied coverage based on material misrepresentations made by Bates in the application for insurance.
The kids acknowledge that the application contained false representations and that Jackson National relied on those representations. The kids dispute, however, that Bates intended to misrepresent information to Jackson National or that the misrepresentations were material.
The court held that a material misrepresentation in an insurance application does not defeat recovery if the misrepresentation was made innocently and in good faith. An insured's mere knowledge of his or her health condition is insufficient to prove intent to deceive as a matter of law. Accordingly, a fact issue exists as to whether or not Bates intended to deceive Jackson National. What this means is that Jackson National cannot get a favorable ruling in a declaratory judgment action or a motion for summary judgement, which means the kids get to present their case to a jury.
In 2003, the Texas Legislature passed relevant laws dealing with this issue.
Texas Insurance Code, Section 1101.006 says:
(a) ... a life insurance policy must provide that a policy in force for two years from its date of issue during the lifetime of the insured is incontestable, except for nonpayment of premiums.
This means that misrepresentations do not matter after a person has had and been paying for the policy for a period of two years.
Texas Insurance Code, Section 1101.007 says:
A life insurance policy must provide that, in the absence of fraud, a statement made by an insured is considered a representation and not a warranty.
This means that a wrong statement has to be proven to have been made intentionally and not by mistake before the insurance company can hope to avoid payment on the policy.
What is relevant to the reader is that life insurance companies will look long and hard to find ways to keep from paying a policy claim. Upon being notified of a death, they will immediately order all the medical records they can on the insured, then compare those records to the application. When a claim is denied, for any reason, an Insurance Law Attorney needs to be consulted as soon as possible.

If you live in Grand Prairie, Arlington, Fort Worth, Saginaw, Haslet, Newark, Rhome, Benbrook, Lake Worth, Crowley, Mansfield, or anywhere else in North Texas, there is a chance you have a life insurance policy. Naturally you would expect that the policy would pay the intended beneficary. Well, that is not always the case, particularly if the insurance company can show misrepresentations in the policy application. Whenever they try to do this, it is vital that an experienced Insurance Law Attorney be contacted.
The Texas Supreme Court took on this issue in a case decided in 1980, styled, Mattie Emmaline Mayes v. Massachusetts Mutual Life Insurance Company. Here are some of the facts in the case.
On May 6, 1976, Albert Mayes signed and delivered to an agent, Part 1 of two applications for life insurance. Mays had not disclosed to Mutual Life that certain answers in his application which were correct when made had become false by the time the policies were delivered. The two policies were identical except for the amount of coverage.
Page three of each of the applications contained a paragraph stating that "To the best of my (our) knowledge and belief, all answers and statements contained herein are full, complete and true and were correctly recorded before this application was signed; ...
Both applications required a physical examination of this forty year old prospect and the information relative to this examination is contained in Part 2 of the applications. Part 2 was filled out by Dr. Rattan, Mutual Life's medical examiner and it contained a number of answers to medial history questions as the result of a May 27, 1976, examination. Question 4 inquired as to whether Mayes within the past five years: (A) had been treated by a physician; (B) had been treated or observed in a hospital; or (C) had undergone an electrocardiogram. Only question 4A was answered yes and the explanation given related to a 1974 physical examination in connection with a previous policy. Questions 5A and 6A inquired if he had been treated for or had any known indication of any disorder of the heart or if he had experienced any pain, pressure or discomfort in the chest. Both were answered no.
The home office of Mutual Life required a reexamine based on elevated blood pressure which was conducted on July 14, 1976. This was cleared and the policies were issued to Mayes but at a higher premium due to the elevated blood pressure.
On June 29, 1976, Mayes felt a chest paid and went to the hospital and was checked out and sent home with the explanation that the pain was probably the result of esophagitis. He had been kept overnight and a number of tests were conducted but the doctor did not believe Mayes had suffered a heart attack.
On July 28, 1976, Mayes saw his doctor and complained of two more episodes of chest pain. Again, the doctor was unable to determine the cause of the pain nor did he diagnose heart disease. On July 25, 1977, Mayes died suddenly of a heart attack.
Here is the question in the case:
Since Mayes heath had changed between May 27, 1976 and the date the policies were delivered, August 17, 1976, did the extent to which his answers to the questions were now changed, was it a misrepresentation by him to Mutual Life thus making the policies void?
The statutes that address this are found in the Texas Insurance Code, Section 705.003 and Section 705.004.
Case law says that an insurance company cannot avoid liability on the ground of misrepresentation by the insured unless there is a finding that the insured intended to procure issuance of the policy by representations known to be false.
These policies did not contain a "good health" contractual provision which would have required that Mayes disclose the medical conditions that changed before the policy was delivered on August 17, 1976.
It is settled law that if the answers to the questions in the application were untrue at the time they were given, the untrue answers constituted misrepresentations, but that is not the case here.
There are five elements that must be pled and proved by an insurance company wishing to void a policy based on the misrepresentation of an insured:
1) the making of the representation;
2) the falsity of the representation;
3) reliance thereon by the insurer;
4) the intent to deceive on the part of the insured in making same; and
5) the materiality of the representation.
In discussing this case the court stated "Insurance policies are traditionally contracts uberrimae fidei and a failure by the insured to disclose conditions affecting the risk, of which he is aware, makes the contract voidable at the insurer's option ..."
The problem for Mutual Life in this case was that even though Mayes had some problems after signing the application, his doctors led him to believe that it was probably nothing serious.
This case was remanded to the first level appeals court for further consideration so it is not known exactly what happened. But this case is a good read for understanding how misrepresentations in an application for insurance are examined by the courts,

Life insurance policy holders in Weatherford, Mineral Wells, Aledo, Azle, Peaster, Brock, Millsap, Hudson Oaks, Willow Park, Springtown, and other places in Parker County would be interested in this case.
The case was decided by the Texas Supreme Court in 1978. The case is styled, James D. Robinson v. The Reliable Life Insurance Company. The insured beneficiary in this case lost at the trial court level and the first appeals court level and in the Supreme Court.
The question on appeal was whether an insurance company, in order to avoid liability of a policy of life insurance for the reason of false representations in the insurance application, must establish both that (1) the misrepresentation was material to the risk and that (2) the condition about which the misrepresentation was made contributed to the death of the insured.
The lawsuit was filed by the beneficiary to recover on a $2,000 life after insurance policy after the death of his son. The insurance company denied liability and counterclaimed for cancellation of the policy because of false representations in the application for the policy. The application contained questions inquiring whether the son had been treated by a doctor within the past five years, whether the son had any injury, illness or operation in the past five years, and whether the son had ever been confined to a hospital or sanitorium. It was found that the answers to each of the questions was false. That each of the questions was material to the risk assumed by the insurance company and each was relied on by the insurance company in issuing the policy. And that the policy would not have been issued but for the false statements. This false information was not discovered until shortly after the death of the insured. The evidence showed that the son had been afflicted with cickle cell anemia for several years prior to his death. He was under treatment by a doctor and hospitalized for about two weeks for intestinal hemorrhaging and sickle cell anemia less than two years before the application was submitted. However, the only evidence as to the cause of death of the son is the following statement on the death certificate: "There were no marks on body that indicate violence, apparently died from natural causes." The uncontroverted evidence at trial in this matter was that a prudent insurer would not have issued a policy on the life of a young boy afflicted with sickle cell anemia.
The Texas Insurance Code, Section 705.004, allows a policy to be void if it is shown at trial that the matter misrepresented in the application (1) was material to the risk; or (2) contributed to the contingency or event on which the policy became due and payable.
In the appeal of this case, Robinson urged the court to read the word "or" in the statute to mean "and."
Here, due to the statement in the death certificate, Robinson argued there was no proof that the matters concealed in the application contributed to his son's death. Thus a reading of the statute wherein the word "or" is construed as the same as the word "and" would cause him to prevail in the lawsuit.
This court responded to Robinson's argument by pointing out that there is a long line of cases supporting Reliable's argument that the statute wording is correct as it is. Which is, that the materiality of the risk must be viewed as of the time of the issuance of the policy, rather than at the time the loss occurred, and that the principle inquiry in determining materiality is whether the insurance company would have accepted the risk if the true facts had been disclosed. The cases recognize the concept that a condition material to the risk assumed by the insurance company is quite distinct from the cause of the loss.
Portions of Section 705.004 and Section 705.003 are stated and interpreted in such ways as to help insureds who have errors or misrepresentations in their applications and statements of loss. It is important to seek the advice of an experienced Insurance Law Attorney whenever an insurance company denies a claim based on misrepresentations by the insured in the policy application of in any claim for loss.

Accidental deaths would be common in Grand Prairie, Arlington, Fort Worth, Hurst, Euless, Bedford, Keller, Saginaw, Grapevine, and any other place in Texas. It is simply one of those things that is going to happen.
A lot of people have insurance policy's that provide coverage in the event of an accidental death. These policies are known as "accidental death" policies. The United States District Court, Southern District of Texas, Houston Division, issued an opinion on June 29, 2011, in the case styled, Cheryl Likens v. Hartford Life and Accident Insurance Company. This case made a summary judgment ruling regarding an accidental death policy that people who have these types of policies should understand. Here is some background.
Wesley Vincent fell at his home in February 2008, and suffered injuries to his cervical spine. He died as a result of that injury four days later. The discharge summary from the hospital listed his cause of death as "anoxic brain injury secondary to cardiopulmonary arrest."
Vincent had a group life insurance policy with Hartford through his employer which provided a benefit for "accidental" death. Likens was the listed beneficiary on the policy, and she sought payment of the benefits. Hartford denied the claim due to Vincent's intoxication at the time of his injury. More specifically, Hartford relied upon provisions of the policy requiring that the injury must arise from an accident "independently of all other causes," and that the policy excludes injuries "sustained as a result of being legally intoxicated from the use of alcohol. Likens then filed this lawsuit.
The policy provided for an accidental death and dismemberment benefit for an injury leading to death in the maximum amount of $300,000. An "injury" is defined as "bodily injury resulting from accident and independently of all other causes which occurs while [Vincent] is covered under the policy. The "Exclusions" section of the policy provides in relevant part as follows:
The policy does not cover any loss resulting from ... 8. Injury sustained as a result of being legally intoxicated from the use of alcohol.
The evidence in the case showed that Vincent drank alcohol at a local bar and he arrived home at approximately 11:30 p.m. An EMS report contains the following description of events:
Family stated that Vincent went out drinking tonight and that he was brought home by the bartender around 11 or 11:30. Vincent's wife states that he was very intoxicated and kept falling down, she states that she tried to help him, but he told her that he was fine and that he was going to sit out on the porch ... her granddaughter came home and found Vincent between the bbq pit and the hedge ... she moved him onto his back ... realized that he was not breathing ...
A hospital report confirms that plaintiff reported an initial fall by Vincent, and that she also reported that Vincent was unable to make it from the yard into the house. A sheriff's report for that same incident states that it was Vincent's daughter who later found him on the ground, but she was "not alarmed because this was a regular occurrence." Vincent was transported to the hospital, and his serum blood alcohol content shortly after the incident was reported as being .328 mg/dl. He never regained consciousness, and his life support was removed. The cause of death was reported as "anoxic brain injury secondary to cardiopulmonary arrest."
A Certificate of Death lists the "immediate cause" of his death as "complications following blunt trauma with fracture of cervical spine," and the "manner of death" is listed as "accident." Also listed under "significant conditions contributing to death but not resulting in the underlying cause" is "chronic ethanolism."
In analyzing this case, the court discussed legal rules for deciding these types of cases. They pointed out that if an insurance policy is worded so that it can be given a definite meaning or certain legal meaning, then the policy is not ambiguous and is construed by the court as a matter of law. An ambiguity exists where a policy is susceptible to more than one meaning. If, and only if, a court finds an ambiguity in the contract provisions, particularly in exclusionary clauses, the court should construe the policy strictly against the insurance company. And, if the insured's construction of an exclusionary provision is reasonable, it must be adopted, even when the insurer's construction is more reasonable.
As this court correctly pointed out, under Texas law, an insured has the burden of establishing coverage under the terms of an insurance policy. If the insured proves coverage, then to avoid liability the insurer must prove that the loss is within an exclusion. If the insurer proves that an exclusion applies, the burden shifts back to the insured to show that an exception to the exclusion brings the claim back within coverage. Sounds like a game of chess doesn't it?
In making its ruling, in favor of Hartford, the court stated, "In this case, no reasonable jury could find facts that would avoid the intoxication exclusion of the policy. The facts of this case clearly establish that Vincent's intoxication on the night he fell in his front yard is the proximate cause of his death, and this prevents plaintiff from recovering under the policy. The policy does not cover any loss resulting from ... injury sustained as a result of being legally intoxicated from the use of alcohol. Hartford's evidence conclusively establishes that the injuries Vincent sustained ... and which led to his death, were caused by his extreme intoxication."
The attorneys for Likens argued about the wording of the death certificate and where the words were placed and other such similar arguments. Thought these arguments on behalf of Likens were commendable, they did not persuade the court.

Here is a case for insureds in Grand Prairie, Weatherford, Mineral Wells, Arlington, Dallas, Fort Worth, and other places in Texas to think about.
This case was decided by the United States Court of Appeals for the Fifth Circuit, on April 13, 2011. The style of the case is, Araceli Medina Garcia v. American United Life Insurance Company. Here is some background.
In January 2006, Salvador DeReza Garcia died in a car accident. At the time of this death, Salvador was covered under a group life and accidental death insurance policy issued by American United Life Insurance Company (AUL) and subject to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sections 1001-46. Salvador's wife, Araceli Medina Garcia, submitted a claim under this policy following his death. AUL denied her claim because Salvador was living illegally in the United States and made material misrepresentations regarding his identity during the application process. A lawsuit was filed, the district court ruled in AUL's favor. This appeal followed. This appeals court affirmed the ruling of the trial court.
Salvador's employer, Tatum Excavating, Inc. and Tatum Excavating, Inc. Employee Benefit Plan (collectively, Tatum) signed a contract for a group policy for several of its employees with AUL. The policy offered life insurance coverage in the amount of $20,000 per eligible employee. A few months after Tatum entered into this agreement, Salvador signed a group enrollment form to apply for the policy (hereinafter the enrollment form). The enrollment form reflected Salvador's alleged date of birth as August 19, 1966, and purported Social Security Number as 623-90-3634. Later, Araceli was designated as the sole beneficiary.
After Salvador's death, Tatum sent AUL a proof of death form, notifying AUL of Salvador's death, Araceli's Mexican identification card, and Salvador's death certificate, identifying his date of birth as August, 19, 1966, place of birth as Mexico City, and SSN as 623-90-3634. In order to verify eligibility, AUL requested additional documentation because, based on Salvador's place of birth, there was no indication from the documents that Tatum sent that Salvador was a US citizen. Tatum then sent AUL another copy of Araceli's alien registration card and a copy of Salvador's I-9 form, which reflected a SSN for Salvador of 623-90-3634 and Alien Resident Card number 048-931-385 with an expiration date of May 26, 2009.
AUL immediately began an eligibility investigation, seeking verification of Salvador's alien status and the SSN. The investigation reflected that the SSN did not belong to Salvador, AUL sent Araceli a letter rescinding Salvador's policy and denying Araceli's claim. Upon Araceli's appeal, a reinvestigation was initiated that confirmed the prior results. Specifically, the SSN belonged to a woman who died in 1966 and there was not a number matching Salvador's name. Further the Department of Homeland Security (DHS) had no information in their system that matched the information provided by Salvador.
One thing relevant here is that as with all ERISA claims, federal law applies rather than state law. This is relevant because in this case the ruling was against coverage whereas under state law the result would have probably been the opposite.
Under federal standards in this case, the appeals court reviewed the trial court's ruling based on an "abuse of discretion" standard.
The writing related to the enrollment form states, "the undersigned understands and agrees ... benefits under any policy will be paid only if AUL decides in its discretion the applicant is entitled to them." This gives AUL discretion to make claims determinations. According to this court, "... arguements to the contrary are unavailing."
In determining whether the claim denial was proper, the court considered three factors in its review: 1) whether the administrator gave the policy a uniform construction; 2) whether the administrator's interpretation is consistent with a fair reading of the policy; and 3) whether different interpretations of the policy will result in unanticipated costs. The court then said "An administrator's decision is 'fair and reasonable,' if the decision is supported by substantial evidence."
So, in this case, AUL had to show that the misrepresentation in Salvador's application for coverage was material. It is undisputed that the SSN was false and that Salvador was not legally in the US to work or even be present. Araceli's arguement was that this was not a material misrepresentation.
This court said Salvador's misrepresentations were clearly material and of the type that would have presented AUL from issuing the policy. A SSN is an integral part of the process by which a party's identity can be verified. Because Salvador provided a false SSN and inhibited AUL's ability to verify his identity, he not only placed AUL at risk of severe penalties, but also inhibited AUL's ability to assess the underwriting risk involved in issuing him the policy.
They then said the Department of the Treasury's Office of Foreign Assets Control (OFAC) maintains the Specially Designated Nationals List (the List), which includes the names of individuals designated, for example, as terrorists, drug dealers, and money launderers. Insurance companies are prohibited from engaging in transactions that in any way involve individuals on the List. Punishments for violations of this law can be substantial. As AUL explained in its denial letter to Araceli, "the misrepresentaion respecting Salvador's identity and his ability to work and reside in the U.S. would not permit AUL's compliance with" federal regulations, regarding the List. Thus, Salvador's misrepresentation made AUL vulnerable to substantial civil and criminal penalties, such as those enumerated in, 50 U.S.C., Section 1750.
There are a large number of people residing and working in the Texas who are here illegally. For the most part these people obey the laws, both criminal and civil. They do things like, buy life insurance. This case is relevant in understanding the laws that may affect whether a life insurance company is going to have to pay a claim. An experienced Insurance Law Attorney must be consulted in these situations. There are often times things that can be done to make sure the coverage purchased is provided when a claim is made for benefits.

Mortgage holders in Grand Prairie, Weatherford, Arlington, Aledo, Azle, Fort Worth, Dallas, Irving, Hurst, Euless, Bedford, Pantego, and other places in Texas would find an interest in the case discussed below.
The United States Court of Appeals for the Fifth Circuit, issued an opinion on March 18, 2011, styled, Brenda LeMeilleur v. Monumental Life Insurance Company: Trustees of the National Homeowners Group Insurance Trust, c/o Countrywide Insurance Services, Incorporated. This case is an appeal from the district court where a ruling was handed down in favor of the insurance company. That ruling was affirmed by this appeals court.
Here are some facts:
Mrs. LeMeilleur sued the insurance company to recover an accidental death benefit from a Group Mortgage Accidental Death Policy ("Policy") which her deceased husband held.
Mrs. LeMeilleur and her husband purchased the Policy from Monumental. If Mr. or Mrs. LeMeilleur suffered an accidental death, the Policy states it would pay off the balance of the couple's home mortgage. The Policy also states that Monumental will pay the accidental death benefit when they "receive proof that the Insured died as a result of an Injury. The Policy defines an "Injury" as a "bodily Injury caused by an accident, independently of all other causes" and further stipulates that the "Injury must be the sole and direct cause of death." In September 2005, Mr. LeMeilleur fell and broke his hip, which required surgery. In July 2006, he died. According to Mr. LeMeilleur's death certificate, his death was due to a heart attack with hypertension as an underlying cause. Mrs. LeMeilleur submitted a claim for a death benefit for Mr. LeMeilleur's death, which Monumental denied. In court, Mrs. LeMeilleur argued that she was entitled to the death benefit because her husband's death was due to an insured accident - the fall. Mrs. LeMeilleur supported her contention with testimony from Dr. Milton Shaw, Mr. LeMeilleur's attending physician.
In its discussion of the case the court said, "all parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties." "It is well established that a contract is to be construed in accordance with its plain language." They also said that policy language that is susceptible to more than one construction should be interpreted strictly against the insurer and liberally in favor of the insured. In an accidental death benefit claim, the combination of an accident and pre-existing conditions are insufficient for recovery. An accident must be more than a "proximate cause" of death, it must be the "sole proximate cause."
In this case, Mr. LeMeilleur had pre-exisiting conditions and the policy had language accepting these pre-existing conditions. Mrs. LeMeilleur claimed this kept Monumental from denying the claim. But as the court pointed out in its discussion of the case, Monumental did not deny the claim because of pre-existing illnesses or conditions. Monumental denied the claim because the accident in question, Mr. LeMeilleur's fall, was not the sole cause of death. Rather, he died due to heart failure and hypertension.
Mr. LeMeilleur's death certificate did not reference the fall and lists a heart attack as the immediate cause of death. And, Mrs. LeMeilleur's own expert, Dr. Shaw, testified that the fall was merely a contributing factor to Mr. LeMeilleur's death, not the sole cause of death. The connection between the fall and the death claim failed because there was no evidence to support her contention that the fall was the sole cause of death.
This case, or at least what appears in the written decision, does not appear to have been a hard call for the appeals court.
One thing an experienced Insurance Law Attorney would want to know more about is the language in the policy that talked about pre-existing conditions. This is brought up in the discussion of the case but is not discussed in much detail. A footnote in the case alludes to this not being adequately discussed at the trial level and thus was not subject to review by the appeals court.

When someone in Grand Prairie, Arlington, Dallas, Fort Worth, Mansfield, De Soto, Duncanville, Ennis, Weatherford, Aledo, or any other place in Texas, buys life insurance they expect that when they die, the life insurance company will pay the benefits of the policy to their named beneficiary. However that is not always what happens.
The Washington Post published an article on March 5, 2011, titled "Death of a loved one can be beginning of hard fight with life insurer." The article is written by David Evans of Bloomberg News.
The article tells of a lady named Jane Pierce who spent nine years struggling alongside her husband, Todd, as he fought cancer in his sinus cavity. The treatments were working. Then in July 2009, Todd died in a fiery car crash. He was 46. That was the beginning of a whole new battle for Jane, this time with Todd's life insurance company, MetLife.
A state medical examiner and a sheriff concluded that Todd's death was an accident, caused when he lost control of his pickup after passing a car on a two lane road.
Their finding meant Jane was eligible to collect $224,000 on the accidental death insurance policy that Todd had through his employer. MetLife, however, refused to pay. The nations largest life insurer told Pierce on December 8, 2009, that Todd had killed himself. The policy didn't cover suicide.
Pierce was insulted saying "How dare they suggest such a thing." This man who courageously battled cancer for a decade was accused of abandoning his wife and two sons - one a Marine, the other a National Guardsman - and giving up on his fight to live.
She argued with MetLife for months. She gave MetLife the autopsy report, medical records, and a letter from the medical examiner saying the death was an accident. MetLife still said no and in May 2010, she sued them.
In July, a year after Todd's death, MetLife settled and paid Pierce the full $224,000 due on the policy. As part of the agreement, MetLife denied wrongdoings. MetLife did not pay interest or penalties for the year it withheld payments.
Life insurance companies have found myriad ways to delay and deny paying death benefits to families, civil court cases across the United States show. Since 2008, federal judges have concluded that some insurers cheated survivors by twisting facts, fabricating excuses and ignoring autopsy findings to withhold death benefits.
To be fair, life insurers do pay most claims in full - more than 99 percent of the time, according to data from the American Council of Life Insurers, a Washington based trade group. Nobody tracks how often companies delay making payments or how often they use spurious reasons.
As of 2009, the latest year for which figures are available, United States insurers were disputing $1.3 billion in claims. Included in that amount was $396 million in death benefits rejected in 2009. In the same year, insurance companies paid out $59 billion, reports say.
Insurance companies have an obligation to policyholders and shareholders to challenge death claims they consider fradulent. It is their job to protect the insurance pool of reserves to cover benefits by blocking undeserved payouts.
However, that does not give them the right to wrongly deny claims. There is a profound structural conflict of interest. The insurance company benefits if it rejects claims. Insurance companies like to take in premiums, but they do not like to pay out claims.
For this article, MetLife declined to answer questions about any of the cases written on in the article. They also refused to discuss their accicental death policies.
In Texas, life insurance is covered in many areas of the law and statutes. But most of the statutes are found in the Texas Insurance Code Section 801 and 1101. The subsections in these two sections and other sections of the insurance code discuss and spell out the remedies available when an insurance company mistreats an insured or beneficiary.
Of course, whenever there is dispute with a life insurance company, an experienced Insurance Law Attorney should be talked to. That attorney will know the insurance laws and the other areas of law that would be beneficial to helping the insured receive the benefits to which they are entitled

Most people in places like Arlington, Grand Prairie, Dallas, Fort Worth, Mansfield, Benbrook, Burleson, Crowley, Granbury, and other places in Texas will have some sort of life insurance. But how true is that statement?
The Wall Street Journal published on article on October 3, 2010, titled, "Shift to Wealthier Clientele Puts Life Insurers in a Bind". The article was written by Mark Maremont and Leslie Scism.
This article tells how the life insurance industry has enjoyed beneficial tax treatment for its products for most of the century. Whenever Congress tried to change the tax treatment enjoyed by beneficaries of the policies the life insurance companies could always holler: We protect widows and orphans.
The industry pointed out that life insurance benefits kept these survivors from becoming wards of the State when the primary breadwinner died.
The article points out that these life insurance companies have shifted away from their broad historical base of middle class households. Instead, statistics show, an increasing portion of live insurance business consists of selling large policies to wealthier Americans, often as a part of complex estate tax plans.
What this means is that the tax benefits are not going to the middle class the way they use to, rather the tax benefits are going to the wealthy in our society. The result of this is that a cash strapped Congress is rubbing its hands together at the idea of going after these life insurance policies and removing its tax free status.
Pointed out by the article is that high end policies for $2 million and up, which can carry annual premiums of $20,000 or more, made up nearly 40% of the face value of whole-life and universal-life policies sold in 2007. Such policies accounted for just 10% a decade earlier, and 1% two decades ago.
Meanwhile, the percentage of American families owning life insurance continues to fall. Thirty percent have no life-insurance coverage of any kind. This is a four decade high according to the research group, Limra.
Instead of helping those left behind when the primary bread winner dies, life insurance has become a tax shelter for the rich.
Most middle class families tend to purchase "term" insurance, which provides coverage just for a designated period and doesn't involve a tax advantaged investment account. With term insurance, the only tax break is an untaxed death benefit, and this break comes into play infrequently. That's because most buyers are in their 30s or 40s and remain alive at the end of the policy's term.
The president of the American Council of Life Insurers, Frank Keating, says the favorable tax treatment of assets accumulated within insurance policies is justified even if the affuent are big beneficiaries, because "it is good public policy" to encourage weath accumulation that helps feed capital formation and job creation.
The Congressional Budget Office last estimated that eliminating the tax preferences for investment gains inside permanent life insurance and annuities would raise an additional $265 billion in taxes over a decade.
Some of the largest life insurers, seeing the trend, are concerned about a failure to meet what some consider the industry's social mission to ensure that families have life coverage.
Prudential Financial Inc., which historically has focused on the middle class, says 31% of its new policy sales in 2009 were to its most affluent slice of customers, households with investable assets over $250,000. That puts them in roughly the top 15% of U.S. households measured by financial holdings, according to Fed figures. A decade earlier, 19% of its policies in force were in that high end segment.
A focus on upscale customers was evident at the national conference of the Association for Advanced Life Underwriting, a group of high end life insurance agents. "Bullet proofing Estate Plans Against (Successful) IRS Attacks" was the title of one presentation at an April event in Washington, D. C.
While taxing incomes inside of life insurance policies and annuities may not be a terrible idea, much like taxing capital gains, the idea of taxing life insurance policy proceeds is absolutely uncalled for and goes a long way toward defeating the purpose of life insurance.

People with life insurance policies in Fort Worth, Dallas, Grand Prairie, Arlington, Hurst, Euless, Bedford, Lake Worth, Benbrook, Burleson, and other places in Texas may wonder if the life insurance company can contest their life insurance after purchasing it. Here is some guidance on this issue.
The Texas Insurance Code addresses incontestibility clauses in atleast two separate places in the insurance code. The first one is in Sections 705.101 and 705.105. Of these five statutes, four deal generally with this issue, while 705.104 is more direct. It says:
"A defense based on a mispresentation in the application for, or in obtaining, a life insurance policy on the life of a person in or residing in this state is not valid or unenforceable in a suit brought on the policy on or after the second anniversary of the date of issuance of the policy if premiums due on the policy during the two years have been paid to and received by the insurer, unless:
(1) the insurer has notified the insured of the insurer's intention to rescind the policy because of the misrepresentation; or
(2) it is shown at the trial that the misrepresentation was;
(A) material to the risk; and
(B) intentionally made."
The next place the incontestibility clause is addressed in the Texas Insurance Code is Section 1131.104. It says:
"A group life insurance policy must provide that:
(1) the validity of the policy may not be contested, except for nonpayment of premiums, after the policy has been in force for two years after its date of issue; and
(2) a statement made by any insured under the policy relating to the insured's insurability may not be used in contesting the validity of the insurance with respect to which the statement was made after the insurance has been in force before the contest for a period of two years from its date of issue during the insured's lifetime and unless the statement is contained in a written instrument signed by the insured making the statement."
The statutes above require that incontestability clause be in life insurance policies.
The purpose of an incontestability clause is to protect the insured from a contest as to the validity of the policy after the set period has expired. This was made clear in the 1972, Texas Supreme Court case, The Minnesota Mutual Life Insurance Company v. Ethel C. Morse. In this case, The Minnesota Mutual Life Insurance Company contested the amount of money to be paid a beneficiary and whether or not the two years had elapsed. This case was a loss for the beneficiary but its importance to other beneficiaries was it's holding that the incontestibility clause is valid.
Another important point of the law in incontestability cases was stated by the Texas Appeals Court -- Houston [14th Dist.], in 1982. The style of this case is Parchman v. United Liberty Life Insurance Company. What the case stands for is the proposition that a life insurance company may not place a more onerous incontestability clause in the policy than the one prescribed by statute, although it may be shorter than that prescribed.
In Parchman, the policy date in question was October 10, 1977, and the effective date was either July 20, 1977, or August 6, 1977, depending on whether a medical examination was required and completed. Using the policy date (October 10) as the date that the clause began to run provided for a longer period than using the effective date (July 20 or August 6). Thus, the policy's incontestable clause was more onerous than the one prescribed by statute, so the statute prevailed, and the policy date in the incontestability clause was construed to mean the effective date. In this case, the two-year period began running on the earlier effective date rather than on the later policy date.
As always, when someone finds themselves in the position where their claims for policy benefits are being denied, they should consult with an experienced Insurance Law Attorney. That is the only sure way of knowing that your lack of legal knowledge in this area of the law is not being taken advantage of in an unfair way.

Anybody with life insurance in Dallas, Fort Worth, Grand Praire, Arlington, Weatherford, Garland, Mesquite, Mansfield, or anywhere else in Texas who has life insurance would have had to fill out an application for that insurance. So what happens if the life insurance company denies benefits under that policy and cites the reason as there being a misrepresentation in the application for the policy? Continue reading to get some guidance as to what might happen.
For a life insurance company to establish misrepresentation by the insured as legally sufficient grounds for denying benefits, the life insurance company must prove five elements in any lawsuit brought trying to get the benefits paid to the benficiary. Here are those five elements:
1) the making of a misrepresentation;
2) the falsity of the misrepresentation;
3) reliance on the misrepresentation by the life insurance company'
4) intent to deceive on the part of the insured in making the misrepresentation; and
5) the materiality of the misrepresentation.
The preceding is the law as stated by the Texas Supreme Court in the 1994 case, Union Bankers Insurance Company v. Shelton.
The Texas Insurance Code has relevant statutes that come into play when there are allegations by the life insurance company that the insured made misrepresentations in obtaining the life insurance coverage. These statutes are, Sections 705.001 to 705.004 and Sections 705.101 to 705.105.
The 1991 case styled, Betty Flowers v. United Insurance Company of America, decided by the Fourteenth District Court of Appeals in Houston, provides some further insight into how a misrepresentation claim will be handled.
In the Flowers case the trial court ruled against the beneficiary but the appeals court reveresed the judge and sent the case back for a trial.
The basic facts of the case are not in dispute. In November 1987, Betty Flowers and her husband, Edward Flowers, applied for and were issued a joint life insurance policy with United Insurance Company of America (United). In the application for the policy, Mr. Flowers was asked a series of questions regarding his health history. In pertinent part, the question asked:
10. Has any Proposed Insured or Payor to be covered ever had:
a. High blood pressure?
b. Disease or disorder of heart or circulatory system?
......
11. .....
a. Have you ever had a physical examination, consulted a physician, or been in a clinic, hospital or institution for surgery, diagnosis or treatment within the past 5 years?
Mr. Flowers answered "no" to each health question. He did not give any explanations of health problems in the space provided. Mr. Flowers executed the application stating "I certify that I have read all the questions and answers on this application." As it turns out, three years before applying for the life insurance, Mr. Flowers was incarcerated in the Texas Department of Correction (TDC). On the TDC medical intake form Mr. Flowers stated that he had high blood pressure. While in prison Mr. Flowers took medication for the condition for approximately two years. Further, while he was in prison, he was admitted to the hospital for an injured wrist; and during hospitalization he was diagnosed with borderline cardiomegaly, enlargement of the heart.
In 1998, approximately a year after the life insurance policy was taken out, Mr. Flowers was killed in a motor vehicle accident. Ms. Flowers, as beneficiary, brought the lawsuit to collect benefits.
In reversing the trial court, this appeals court stated that United failed to prove the five elements above. The appeals courts centered on there being no proof by United that Flowers "intended" to deceive United when he filled out the application. The court stated that while there was some evidence of the intent to deceive there was not enough conclusive evidence for the judge to dismiss the case without allowing Ms. Flowers the opportunity to prove the point to a jury.
Important to know from this case is that just because there is a misrepresentation in a life insurance policy, that by itself is not usually sufficient to justify a denial of benefits. Each of these situations need to be evaluated on an individual basis. To make sure that a person's rights are properly protected, it is important to seek the advice of an experienced Insurance Law Attorney.

Does anybody in Dallas, Fort Worth, Grand Prairie, Arlington, Irving, Mesquite, Garland, Cedar Hill, Duncanville, De Soto, Lancaster, or anywhere in Texas have a pilot's license? The answer is yes. So the next question is, "Are they covered in their life insurance policy if they die in an airplane crash?" The answer to that is, "It depends."
All insurance policies are going to have "exclusions". These exclusions will limit the responsibility of the life insurance company to pay death benefits when these exclusions may apply.
This issue came up in the case, American Home Assurance Company v. Loretta Anne Brandt. This is an older case which was decided in 1989 by the Texarkana Court of Appeals. The exclusion in this case excluded coverage by the following provision: "LIMITED AIR TRAVEL COVERAGE: Insurance provided under the policy includes riding as a passenger, but not as a pilot or crew member in, including boarding or alighting from, or being struck by, any aircraft."
American Home Assurance Company (American) appealed this case from a jury verdict in favor of Lorretta Anne Brandt. American prevailed on appeal based on a technical error in the trial court and was sent back to the trial court for a new trial.
Here are some facts in the case.
On January 24, 1982, a twin-engine Cessna 402 aircraft, owned by Vernon Myers, crashed during an attempted landing in Laredo, Texas, killing all seven people aboard. When the plane crashed, Myers occupied the left pilot's seat; Robert Brandt occupied the right pilot's seat. The purpose of the flight was pleasure -- a shopping trip to Mexico. Myers' aircraft was certified by the Federal Aviation Administration as requiring a crew of one, the pilot. Myers met FAA regulations to fly his aircraft without supervision and could legally carry passengers. Dow Chemical Company employed Brandt as a pilot. Dow Chemical held a life insurance policy for the benefit of its employees, through American. After the crash, American contended that Robert Brandt was acting as a pilot or crew member during the flight and was thus excluded from coverage by the provision cited above.
At trial, there was little evidence with regard to who performed what duties in the cockpit of the airplane, partly because those in the plane were killed and not able to tell about it. Through various documentary exhibits, Loretta Brandt showed that Myers owned the airplane and operated it and that he occupied the left, or pilot's, seat at the time the plane crashed. She showed that Robert Brandt could not legally act as a flight instructor. Loretta Brandt also introduced a report filed by the National Transportation Safety Board, which reflected that Robert Brandt was the pilot in command, although this designation was apparently a result of the fact that Robert Brandt was a more highly qualified and experienced pilot than was Vernon Myers. In addition to the documentary evidence, Loretta Brandt called an expert witness, Hughes A. Moorer, Jr., a flight instructor, who testified with regard to various matters within his expertise, including custom, the fact that the pilot of the plane occupies the left seat in the cockpit, and that the plane involved would not normally have any crew members other than the pilot. Based upon his expertise and review of documents related to the investigation, Moorer opined that at the time of the disaster Robert Brandt was not acting as pilot or a crew member, but was a passenger in the plane. American chose not to produce any evidence other than a report from the Federal Aviation Administration concerning the qualifications of Robert Brandt as a pilot, but rather relied upon the notation in the National Transportation Safety Board's report that Robert Brandt was pilot in command of the plane.
The relevance of this case is that the court upheld the right of a life insurance company to maintain in its policies an exclusion commonly called "Pilot exclusion."
Anytime there is an exclusion in a policy that a life insurance company is relying on for denying coverage to a beneficiary under a life insurance policy, the beneficiary should seek the advice of an experienced Insurance Law Attorney before accepting the final determination of the self serving interests of the life insurance company.

Suicide by someone in Arlington, Dallas, Fort Worth, Grand Prairie, Keller, Roanoke, Aledo, Burleson, Granbury, or anywhere else in Texas. Does that negate an insurance policy?
The first thing anybody should know about life insurance and suicide is that if life insurance benefits are denied because the cause of death was a suicide, the intended beneficiary should seek the advice of an experienced Insurance Law Attorney.
The Texas Insurance Code, Section 1101.055(b), says in part:
"A life insurance policy may provide for a settlement that will be less than the amount required under Subsection (a) if the death of the insured is:
(1) by the insured's own hand regardless of whether the insured is sane or insane; ..."
As stated in the 1982 Houston Court of Appeals [14th Dist] case, Parchman v. United Liberty Life Insurance Company, "Life insurance policies typically exclude suicide as an assumed risk." In the Parchman case, the policy excluded suicide as an assumed risk for two years from the policy date and provided a reduced benefit of the return of all premiums paid if death resulted from suicide within that period.
In the 1986 Amarillo Court of Appeals case, Southern Farm Bureau Life Insurance Company v. Dettle, another example is provided for the law saying a life insurance policy can deny or limit benefits when the cause of death is suicide. In Dettle, Southern Farm Bureau Life Insurance Company denied benefits and the court upheld their decision. The policy at issue said: "If the insured within two years from the date of issue of this policy shall die by his own hand or act whether sane or insane, the liability of the Company shall be limited to an amount equal to the premiums actually paid, without interest."
When a denial of benefits is challenged by an intended beneficiary and a lawsuit is filed, the result could be that a jury ultimately decides whether or not the death actually resulted from a suicide or some other reason. If this happens then the jury, in reaching its decision is given a definition of suicide by the Judge of the court. In the Dettle case, the court ruled that the court's definition of "suicide" should include an "intentional" component.
The rational of this ruling in Dettle was that in the case the Judge commented that if the court charge in the policy language (If the Insured ... shall die by his own hand or act whether sane or insane") and if the policy language were interpreted literally, the insurance company could avoid liability even in instances of pure accidents; for example, a pure accidental death at one's own hand would be excluded by a literal interpretation of the policy language.
From a legal standpoint, there is a presumption against a person having taken their own life. This legal presumption may be rebutted, and if rebutted, then a jury gets to decide. Because suicide is a defense for the insurance company, the insurance company has the burden of proof in these types of cases. This was the ruling in the Beaumont Court of Appeals in 1988, in the case, Massachusetts Indemnity & Life Insurance Company v. Morrison.
In the Morrison case, Morrison died in a one-car collision with a tree. There was evidence that Morrison was depressed, had health problems, and had trouble at work. A suicide note was found. On the other hand, there was conflicting evidence on whether the note was in Morrison's handwriting, and there was expert terstimony that it would have been extremely difficult for Morrison to intentionally drive his car into the tree. The conflicting evidence allowed the jury to find Morrison's death did not result from suicide.

Here's a question someone in Fort Worth, Dallas, Arlington, Grand Prairie, Mansfield, Lake Worth, Azle, Grapevine, or anywhere else in Texas might ask. When is someone considered dead for purposes of collecting on a life insurance policy?
Let's start with this. For an intended beneficiary under an insurance policy to collect death benefits the insured must be dead. But what if there is no body? Also doubt about the death may arise when there is uncertainty over the identity of a body. This was the case in a 1987 Texas Supreme Court case styled, Davidson v. Great National Life Insurance Company. This was also an issue in the 1892 United States Supreme Court case, Mutual Life Insurance Company of New York v. Hillmon.
Legal presumptions can aid in determining whether a death has occurred. In the Texas Civil Practices & Remedies Code, Section 133.001, some help is found. This section says, "Any person absenting himself for seven consecutive years shall be presumed dead unless it is proved that the person was alive within the seven-year period.
Section 133.002 states, "If a branch of the armed services issues a certificate declaring a person dead, the date of death is presumed to have occurred for all purposes as stated in the certificate. The certificate must be admitted in any court of competent jurisdiction as prima facie evidence of the date and place of the person's death."
In the above Davidson case, the insured traveled to Tel Aviv, leaving behind some questionable financial dealings. A badly disfigured body was found near the hotel where he was registered. His wife claimed the body was his, and she sought death benefits. The insurance company, Great National Life Insurance Company, asserted there was a conspiracy to commit fraud and to fake the insured's death. Relevant evidence included testimony from an Israeli police officer identifying photos of the body as being photos of the insured.
The second example, which is the Hillmon case from above, was that Hillmon headed west but never returned. Someone's body was buried, and there was some evidence that the body was Hillmon. There was also evidence that the body might have been Walters. The jury found for Hillmon's wife. The United States Supreme Court held that the insurers should have been allowed to introduce letters from Walters showing his intent to travel with Hillmon, because that tended to corroborate the idea that the body was Walters.
The seven year statute becomes relevant and the 1945, San Antonio Court of Appeals case, American National Insurance Company v. Dailey, makes for interesting reading. The opnion in that case reads in part, "An honored and upright citizen, who, through a long life, has enjoyed the fullest confidence of all who knew him, -- prosperous in business and successful in the accumulation of weath; rich in the affection fo wife and children, and attached to their society; contented in the enjoyment of his possessions, fond of the association of his friends, and having that love of country which all good men possess, -- with no habits or affections contrary to these traits of character -- journeys from his home to a distant city and is never afterward heard of. Must seven years pass, or must it be shown that he was last seen or heard of in peril before his death can be presumed? No greater wrong could be done to the character of the man than to account for his absence, even after the lapse of a few short months, upon the ground of a wanton abandonment of his family and friends. He could have lived a good and useful life to but little purpose, if those who knew him could even entertain such a suspicion. The reasons that the evidence above mentioned raises a presumption of death are obvious; absence from other cause, being without motive and inconsistent with the very nature of the person, is improbable."