*1 Schaible, Silvey, Charles D. Staley, DeLi- CARMAN, Appellant, Cook, Inc., Fairbanks, L. sio & Ruth for appellant. Bond, Wiles, Marc D. Delaney, Hayes, Brubaker, Inc., Reitman & Anchorage, for PRUDENTIAL INSURANCE COMPANY appellee. AMERICA, Appellee. OF No. S-1594. RABINOWITZ, C.J., Before

Supreme Court of Alaska. BURKE, MATTHEWS, COMPTON, Jan. 1988. JJ. Rehearing Denied Jan. 1988.

OPINION RABINOWITZ, Chief Justice.

Ruth appeals superior court’s summary judgment in fa- vor of Prudential Insurance Company. superior court held that her action on a life policy was barred ' statute of limitations. At issue is the time of commencement of the statute of limita- tions on a policy life insurance claim where beneficiary upon relies the statutory presumption arising of death from the in- disappearance. sured’s We hold that the applicable six-year statute of limitations commences to run at the end of required give rise presumption to the death. Because Mrs. Carman’s suit was time, not commenced within this we affirm. I.

Prudential Company Insurance issued a policy life insurance to William Carman which named his wife Ruth as his benefi- ciary. disappeared William Carman while piloting airplane an on or about According to Ruth Carman’s affida- vit, she agent contacted Prudential Mark- ham year within a of her disap- husband’s pearance and was told that she could not against make a claim policy for at least Further, years. seven agent Prudential Sherman, who had sold the to Wil- Carman, liam averred in his affidavit that Mrs. Carman asked him to initiate a claim policy, which he did in 1970 or According Sherman, Prudential responded indicating with a letter that Mrs. Carman could not file a claim until at least seven disappear- after her husband’s *2 anee, nothing “said and ... would We have not before been called coverage upon to a denial of to determine the date of amount of accrual a beneficiary’s merely brought but stated the claim cause of action under policy, a policy involving disap life insurance presented not be until a later time.” the could pearance of the insured where the benefi 2, 1985, pursuant April to Mrs. Car- On on statutory presumption relies of petition adjudication intestacy, for of man’s However, jurisdictions death. from those master entered find- probate the amended presented ques which have been with this law, ings stating of fact and conclusions of emerges tion the virtually universal pursuant A.S. part in to 13.06.035 “[t]hat that the statute of limitations commences is TERRY CARMAN WILLIAM to the run on date that the died five date to have from the of his period expires. 7, on or disappearance about law, The rule of as clearly established 1 1970” by overwhelming weight the authori- of 17, 1985, On Prudential received a ty, is that no cause of action accrues Carman, from counsel for Mrs. letter mak- proof until of death can be claim ing a on William Carman’s life insur- that, where fact of death of the in- policy. pay Prudential to ance refused person sured is presump- established by letter to claim counsel for Mrs. Carman arising tions unexplained his ab- 9,May dated 1985. Mrs. filed her sence, stipu- a suit commenced within the 7, action on civil period lated limitation after date presumption arose, when the of his death summary judgment Prudential moved for is in time. upon based of the statute of Boden, Sovereign Camp W.O.W. v. 117 superior granted The limitations. court 229, 256, 1 Tex. S.W.2d 258 See summary judgment Prudential, in favor of States, 43, 45, also v. United Peak 353 U.S. holding in essence that the 613, 614, 631, (1957) 1 77 S.Ct. L.Ed.2d 634 expired prior of limitations would have (determining accrual of cause un- of action filing of the lawsuit if the statute even der Policy National Service Life Insurance begin to did not run until the end of the period where federal in- seven-year period prior to which Pruden- voked); Metropolitan Ins. Hefford agent Life allegedly tial’s Mrs. informed Car- Co., 353, (1944); 144 173 Or. P.2d 703 man that she could not a claim. make New York Co. v. Nashville Trust Life Co., Tenn. 178 159 87 S.W.2d II. (1942); Equitable Howard v. Assur- Life Soc’y, 197 ance Wash. 85 P.2d a motion for summary judgment, On Jalet, (1938)(citing authorities); Myste- 257 required court to draw reasonable all Disappearance: Presumption rious non-moving party inferences favor of the and the Death Administration against Clabaugh the movant. v. of of Absentees, Missing Estates Persons or Bottcher, (Alaska 5 P.2d 175 n. of (1968); L.Rev. 18A 54 Iowa M. 1976). A summary judgment Rhodes, 75:108, on Couch Insurance § genuine appropriate only if is- there is no (2d rev.ed.1983). moving party sue of material fact and the judgment agree is entitled as of law. with This a matter We these authorities. 56(c). R.Civ.P. that an may Alaska rule ensures insurer not take 13.06.035, concerning proceedings 1. AS initiated at the end unless there is suffi- code, probate provides under in relevant determining cient evidence for that death oc- part: earlier. curred person who is absent for a continuous purposes [A] of the summa- For instant motion for years, person during of five which the applica- ry judgment. Prudential conceded the from, has not been heard absence and whose five-year period bility of the and the correctness satisfactorily explained diligent is not after finding presumed date of the master's that the dead; inquiry or search person’s Carman’s of William death is death is occurred to have See, refusing ac position e.g., claim is denied. inconsistent Howarth v. First disappear Anchorage, of the insured’s Nat’l Bank 540 P.2d cept the date (Alaska 1975), denying the rehearing, date of death and on ance as the aff'd hand, (1976); the one but P.2d 934 beneficiary’s claim on Fireman’s Fund Ins. Co. using Lounge, date as date of v. Lake Sand nevertheless (Alaska running 1973). Howarth, In of the we held that purposes limitations. American Nat’l to run statute of See *3 (Tex. Hicks, contract causes of 35 S.W.2d action from Ins. Co. v. accrues, right York the time the App.1931); Bonslett v. New action Life (Mo.1916). Co., pay. More is when there is a loss and a refusal to 190 S.W. 871-72 over, preserves Fund, In adequately 540 P.2d at 491. Fireman’s we explained of limita general policies behind statutes that cause of action on an promptness pros in the insurance contract did encouraging not accrue until the tions— actions, granting repose, and insurer notified the insured of its decision ecution trial, deny coverage. see Haak to 514 P.2d at In line assuring fresh evidence authorities, Seafoods, foregoing 600 P.2d with the hold that anson v. we Wakefield (Alaska 1979) unjustly applicable six-year of limita statute —without beneficiary period of a reasonable tions for actions on contracts depriving the bring opportunity presumptive his or her claim. to run on the date the death date, expires. Using in period this hand, Applied to the facts at presumed accordance with the doctrine of rule allowed Mrs. Carman until demand, further conclude we that it rea bring against Pruden her action presume payment sonable to a demand for The for actions tial. statute limitations policy rejection and an immediate 09.10.050(1). years. is six on contracts AS by presumptive the insurer on the date the probate master concluded that Mr. Presuming period expires.2 death a de was to have died on or Carman payment rejec mand for and an immediate 7, 1975, years about five from the harmony such demand in our tion of with Thus, disappearance. date of his because decisions in Howarth and Fireman’s complaint Mrs. did not file her Carman Fund. 8, 1985, until the statute of limita untimely. tions had run and her claim was beneficiary Given the fact that the injustice from enforcement of No results presumptive period had the death within here, period particularly the limitations demand, prepare the think it which to we since Mrs. has offered no excuse presume imme reasonable to a demand and waiting to make her claim until 1985 pre diate refusal at the despite being by informed Prudential that period at the sumptive death rather than she could do so six-year period.3 expiration of an additional Thus, in period presumptive asserts that the the context of Mrs. Carman cases, begin May adopt until the rule we affords the benefi limitations did not period necessary presumptively denied her claim. the date that Prudential death, plus additional six on several cases which hold that establish the an She relies an action on does not within which to institute limitations policy.4 a loss and a the insurance run until the insured suffers Annotation, pre- adopt, Carman is Limitations 4.Under the rule we Mrs. 2. See When Statute of pre- on a Contract to Run Action which is sumed to have made a Contemplates refused, Which an Actual immediately on the sumed to have been A.L.R. expired, period Au- date the gust ran of limitations 1975. The statute adopt timing of a 3. The rule we herein as to the Mrs. Carman did not from this date. Since rejection and immediate 7, 1985, present until institute the action breaches of life insurance limited to actions for by of limita- it was barred presumptively where has been contracts tions. established.

Additionally, have we reviewed Mrs. Car- What majority opinion has done in arguments man’s that of summa- this case is to eliminate the demand re- judgment erroneous ry was because Pru- quirement death cases. delay filing her to her dential caused claim majority’s rule, Under the the statute of prove Prudential failed to and because that automatically begins limitations to run on a sealed gov- was not instrument day that presumed. death is The stat- ten-year period erned of ute runs any without demand. We conclude AS 09.10.040.5 these Under the presumed demand, doctrine of merit. claims are without “a demand will be expira- at the AFFIRMED. tion of the reasonable within which it should have been which is ordinari- MOORE, J., participating. not ly of the statute of limitations.” Gossard, Gossard v. MATTHEWS, Justice, F.2d dissenting. (10th Cir.1945). agree I the statute of limitations *4 The maximum reasonable time for mak- begin prior expira- does not to run to the ing the which is a condition period. tion of the This precedent action, to the cause of gen- is prevents companies taking erally held to be the number of position refusing the inconsistent of to hon- specified by the bringing suit, statute for disappear- or a claim because the date of and if no actual demand is made within death, using ance is not the date of but the limitations, the of the statute of it disappearance date of as the date of death presumed will be to have been made at begin the of limitations. See statute expiration statutory period, Hicks, American Nat’l Ins. Co. v. 35 S.W. starting running thus of the statu- (Tex.Comm.App.1931). 2d 132-33 I do tory time. however, agree, not that the statute of automatically begins limitations to run on Goldberg, Barer v. Wash.App. 20 582 the date that the see also 51 Am.Jur.2d (1978); P.2d 871 expires. merely That date fixes the date of Limitation Actions at 697-98 § of death of the insured. (1970); Annotation, WhenStatute Limi of tations Run Action on Suffering an insured loss does not a Contract Which Contemplates an Actu the statute of limitations. What is re al (1945). 159 A.L.R. quired loss, is a perform and a demand for made, If a late demand is is ance which is refused. See Howarth v. regarded nonetheless having as com First Anchorage, Nat’l Bank 540 P.2d of menced to run as of pre the time of the (Alaska 1975), aff'd, sumed demand. 51 Am.Jur.2d Limitation (Alaska 1976); Fireman’s Fund Ins. Actions at 698 § Lounge, Inc., Co. v. Sand Lake of P.2d (Alaska 1973). “Ordinarily, adopt a I would approach. Thus, cause of action accrues favor of a benefi rule of law which I govern believe should policy upon of a life insurance provide this case would that the statute of happening of the death of the insured limitations to run on the date that company accompanied by notice to the beneficiary's payment demand for is payment.” demand Jalet, Mysterious refused. If no demand is made within the Disappearance: The Presumption period beginning limitations at the of Death and the Administration the Es presumed death, date of the demand would Missing Absentees, tates Persons or 54 be to have been and re- (1968)(emphasis fused, Iowa L.Rev. add period. of that ed). proviso necessary Such a is so that argues that since the statute of limita- was not a sealed instrument because defense, tions is an affirmative Prudential has party copy neither now has a of the actual proving the burden of the elements thereof. policy. argues She prove that Prudential failed to present indefinitely postpone the 1981. Since the action was beneficiary cannot 7,1985, of limitations.1 not running brought of the statute on it would barred. adopt I would to be The rule which has majority which the

preferred reasons. adopted for three First, rule it is consistent with the not applied insurance cases should be Jones, Curtis JONES and Barbara as the date involving Appellants Cross-Appellees, should be- when made. gin to run when no demand is David and Nina BROWN and Dwain Second, recognizes it for and allows Inc., Reddekopp, Appellees and made within six efficacy of actual demands Cross-Appellants. death. years after the date S-1708, Nos. such, it with the actual S-1709. As is consistent Fund and Ho- Fireman’s rule of Supreme Court Alaska. adopted by majori- warth while the rule ty not. Jan. Rehearing in Part and Granted Third, may reasonably one say that the 12,1988. Amended

majority’s too short when measured general six-year period rule that the *5 begins from the refusal of a while long. I accept

the rule which would is too Annotation, When Stat- The author of the ute Limitations to Run Action on a Contract Which Contem- plates an Actual 159 A.L.R. (1945) says just that: “Both dispense rules with actual demand. The contract; one shrinks the the other ex- it; pands it is overthrown.” How- both ever, ground there seems to be no middle case, such which commends itself. In longer period preferred. is to be “Where peri- two constructions as to the limitations possible, prefer od are the courts one gives longer period which in which to prosecute the action.” v.Co. Safeco Inc., Honeywell, (Alas- 1981).

ka presumed de- Applying this doctrine case, Mrs. Carman would mand to to have made a demand at began presumed, when death was Thus, the date of the 1975. would be demand im- That would be deemed statute of limita- mediately refused and the Marks, Steven Marks, G. Baxter & Ju- begin to run from neau, tions would appellants and cross-appellees. demand, requires some the insured’s adopted a denial of have Howarth which we same reason. Fund, terminating proviso for the of limita- that the such and Fireman’s been there has to run until tions does not