Plaintiff appeals an order from the district court for Douglas County sustaining the defendant’s motion for summary judgment and denying the plaintiff’s motion for summary judgment in a suit seeking payment of the proceeds of a life insurance policy.
On October 22, 1977, the defendant issued a life insurance policy for $100,000 on the life of the decedent, plaintiff’s husband, plaintiff being the beneficiary of thе policy. A premium of $33.92 was payable on the 22d of each month by preauthorized check, which premium when paid covered the decedent through the 22d of the following month. Thе policy contained a 31-day grace period, during which time the policy remained in effect in the event a payment was not timely made.
On June 25, 1980, the decedent died. The defеndant denied the plaintiff’s claim for the proceeds of the policy due to an alleged lapse of the policy for nonpayment of the April 22, 1980, premium. The plaintiff brought suit against the defendant for the proceeds of the policy, but the district court sustained the defendant’s motion for summary judgment and denied the plaintiff’s motion for summary judgment. The plaintiff apрeals.
The plaintiff asserts the district court erred in sustaining the defendant’s motion for summary judgment and in denying the plaintiff’s motion for summary judgment when it failed to find that (1) by accepting premiums after the alleged lapse of the policy the defendant recognized the continued validity of the policy as a binding obligation upon it, which constituted an effective waiver of forfeiture for nonpayment of premiums; (2) the defendant’s acceptance of the plaintiff’s tender on August 14,1980, of the April 22 premium waived the policy provisions regulating mode of payment; and (3) an insurer which gives one reason for its conduct and decision as to a matter involving controversy cannot, after litigation has begun, defend upon another and different grоund.
Before we proceed with our disposition of those issues we must set forth the guidelines we follow in cases with this procedural posture, that posture being when the lower court hаs denied one party’s motion for summary judgment and
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sustained the other party’s motion for summary judgment. “The requirements to sustain a motion for summary judgment are the same whether one party or bоth parties have moved for summary judgment.”
Hiram Scott College
v.
Insurance Co. of North America,
Because we find as a matter of law that the facts as presented constitute waiver by the defendant of any right to declare a forfeiture, we reverse the district court’s order sustaining the defendant’s motion for summary judgment and remand this cause with directions to enter judgment for the plаintiff.
The additional facts necessary to understand the plaintiff’s first assertion of error are as follows: On April 22, 1980, the April premium was due. On that day a preauthorized check was drawn on decedent’s account. On May 12 that check was returned to the defendant for insufficient funds. On May 22 the defendant sent a letter to the decedent, stating that the April premium check had bеen dishonored and requesting a replacement check by June 6,1980, to keep the policy in force. On June 5 the defendant received a replacement check from the decedent. That check was deposited on June 16 and dishonored by decedent’s bank on June 23, 1980. On June 25, 1980, the decedent died.
Meanwhile, on May 22, 1980, the preauthorized check fоr the May premium was drawn on the decedent’s account. This check was deposited by the defendant on June 21 and cleared the decedent’s bank on June 25,1980. That check cоntained the following language: “This check when paid is a receipt for amounts due on the policies listed. The date of this check indicates the premium due month.”
From these facts the plaintiff argues that by accepting the May 22 premium the defendant recognized the continued validity of the policy as a binding obligation upon it and thereby waived any right it had to declare a forfeiture for nonpayment of the April 22 premium. If the plaintiff’s argument is accepted, *704 the May 22 premium payment would have paid the policy through June 22, and thе 31-day grace period would have covered the decedent on June 25, the day of his death.
In
Tighe v. Security Nat. Life Ins. Co.,
Waiver was found in
Central American Life Ins. Co. v. Krause,
It is material . . . that the appellant company knew the April 18th premium draft had been returned to it unpaid prior to May 8th when it deposited its draft for the prеmium due May 18th. Although appellant company could not on May 8th assert a forfeiture of the policy [because the policy contained a 30-day grace period], it wаs put on notice that the draft for the April 18th premium had been returned to it. This fact in conjunction with the further fact that it admittedly received the money for the May premium on May 22nd is sufficient tо establish a waiver of the forfeiture of the policy due to non-payment of the April 18th premium prior to May 18th.
Id. at 194.
*705 Although the trial court submitted the issue of waiver to the jury, the appellаte court determined the facts were such that the trial court could have resolved the issue as a matter of law based solely on the company’s written records. The court explained its finding of waiver as follows:
It is a sound proposition under the record that appellant company upon the return of the draft for the April 18th premium could have withheld the drawing and deposit of the draft for the May 18th premium until it determined whether the April premium would be paid. But, with full knowledge that the April premium draft had been returned to it, the appellant drew a draft for the May premium which it deposited on May 8th.
Id.
Similarly, in the case before us, the defendant, which had notice of the April dishonor, could have withheld the drawing and deposit of thе draft for the May 22 premium until it determined whether the April premium would be paid. This it did not do. By drawing the May premium before it determined whether the April premium would be paid, the defendant did an act amounting to a recognition of the continued validity of the policy as a binding obligation upon it. That act constituted an effective waiver of the right to declare a forfеiture for nonpayment of the April premium.
The defendant asserts, however, that it had a right to draw the May premium and apply it back to the overdue April premium. If one accepts that proposition, the April premium was paid, the May premium was not, and the policy lapsed on June 22, 1980, 3 days before the decedent died. We do not, however, acсept that proposition.
The check drawn on May 22, 1980, contained the following language: “This check when paid is a receipt for amounts due on the policies listed. The date of this check indicates the premium due month.” The defendant argues that the first sentence means it has the right to apply the May payment to the overdue April premium. This, however, ignores the only logical reason the second sentence was included on the check. That sentence can only mean that a payment drawn during a certain month is to bе applied to that month’s premium. See
Dickerson
*706
v.
Equitable Life Assur. Soc.,
Because we have determined that the defendant waived its right to declare a forfeiture as a matter of law, we need not address the plaintiff’s other contentions of error. Accordingly, we reverse the order of the district court sustaining the defendant’s motion for summary judgment and remand this cause to the district court with directions to enter judgment sustaining plaintiff’s motion for summary judgment, togеther with a reasonable sum as attorney fees as provided by Neb. Rev. Stat. § 44-359 (Cum. Supp. 1986). The appellee is ordered to pay to the appellant $1,000 for the services of her attorney in this court.
Reversed and remanded WITH DIRECTIONS.