Dallas Fort Worth Insurance Lawyer Blog
Fort Worth life insurance attorneys need to understand the 1980, Texas Supreme Court case, Life Ins. Co. of the Southwest v. Overstreet. Here is some relevant background information.
In February, 1972, Overstreet submitted his application to Southwest to convert a five-year term life policy to a life insurance policy with endowment at age ninety. The earlier policy provided that it would lapse on March 15, 1972. To effect the conversion of the term policy to the policy at issue, Overstreet, on March 6, 1972, delivered his premium check to insurer. It was returned because of insufficient funds. Overstreet then wrote a second check which was also returned for insufficient funds. His third check cleared the bank on April 18, 1972.
The insurer treated March 15 as the date annual premiums were due and sent notices to Overstreet on that basis. On March 6, 1973, insurer sent a notice to Overstreet advising him that his annual premium was due on March 15. After he failed to make his payment on that date, the insurer, on April 5, sent him another notice advising that the grace period for late payment would expire April 15. Overstreet still made no payment. The insurer, on April 15, sent him a further notice advising that the premium was past due and that the policy had been terminated. The notice offered, however, to reinstate the policy if Overstreet paid the premium within ten days. On April 25, the last day of the ten-day period, Overstreet paid the premium, which was for the 1973 insurance year. That premium payment was the last that Overstreet ever made. He did not pay his 1974 premium, and he died on April 24 of that year.
The contentions of the beneficiary are that the provisions of Overstreet’s application for the policy were a part of the policy and that the policy did not become effective and was not in force until it was issued and delivered upon the payment of the full first premium. Because that payment was not made until April 18, 1972, the argument is that each annual premium thereafter became due on that date. The application contained this paragraph:
3. Any insurance approved by the Company for issuance as a result of this application, unless effective prior to policy delivery in the manner specified in the receipt attached hereto, shall be considered in force only when a policy shall have been issued by the Company and said policy manually received and accepted by the Applicant and the full first premium paid thereon, in the case of life insurance, during the good health of the Proposed Insureds . . . .
The policy, however, contains other relevant provisions. The first thing that a reader sees upon reading the policy is a plastic window at the top of the first page . Words that were typed and printed at the top of the second page appear through the window.
The information thus disclosed is the name of the insured, the policy number, the name of the owner of the policy, the amount of the insurance, which was $100,000, the insurance plan, and what the policy calls the “Effective Date.” Opposite the “Effective Date” are the words, “March 15, 1972.”
The next relevant part of the policy is found in the third paragraph on the first page and below the window. It says that the first premium was payable on the “Effective Date,” which, as the policy had already stated, was March 15, 1972. The same paragraph states that subsequent premiums would be payable in periodic installments “thereafter.” The word, “thereafter,” refers to the Effective Date, or March 15, 1972. This third paragraph provides:
The consideration for this Policy is the application therefor and the payment of premiums as herein provided. The first premium in the amount specified in the Insurance Schedule is payable on the Effective Date and subsequent premiums are payable in periodic instalments thereafter until premiums have been paid for the period specified in the Insurance Schedule or until the prior death of the Insured.
On the third page, there is a paragraph which requires the insured to pay his premiums annually in advance. A provision of that paragraph says that the premiums “shall fall due on the same day of the month on which the first premium is due,” and that the failure to pay the premium when due or within the grace period will end the policy except as it otherwise provides. All premiums were thus due on the day on which the first premium was due. The first premium, as we have seen from the paragraph on the first page, was due on the “Effective Date”; and that date, as the policy stated at the outset, was March 15. This is the paragraph concerning premium payments:
PREMIUM PAYMENTS. Any premium hereon is payable in advance at the Home Office of the Company, or to an authorized agent of the Company, in exchange for the Company’s official receipt signed by the President or Secretary and countersigned by the agent. Premiums may be paid in periodic instalments at the instalment rates specified in the Premium Schedule but premiums may be changed to a monthly basis only if the amount of the monthly premium is stated in the Premium Schedule. The payment, of an annual, semi-annual, quarter-annual or monthly premium will maintain this Policy in force for one year, six months, three months or one month, respectively. Such periods will be deemed to expire and the next premium shall fall due on the same day of the month on which the first premium is due. Failure to pay any premium when due or within the period of grace provided shall cause this Policy immediately to become void except as otherwise provided herein.
This court by several earlier decisions has adopted the rule of the majority of jurisdictions in this country. That rule is that a definite statement in the policy of the date on which annual premiums will be due is the due date. Such a statement of the due date controls even over a provision stating that a policy will not be in force until it is initially delivered and the first premium is paid during the good health of the insured. Once the policy comes in force, all of the terms of the policy become operative including its provision about the “Effective Date.
The policy before us expressly fixes the Effective Date at March 15, 1972. The policy provides that “The first premium . . . is payable on the Effective Date,” that is, on March 15, 1972; that “subsequent premiums are payable in periodic instalments thereafter”; and that “The payment of an annual premium will maintain this Policy in force for one year . . . .” This one-year period, according to the policy, “will be deemed to expire and the next premium shall fall due on the same day of the month on which the first premium is due.
The premium was due and payable on the effective date. It was paid neither by that date nor within the grace period that followed.
This is a case the insurance company won.