*1 MUTUAL Thе COMMERCIAL TRAVELERS Appellant, ASSOCIATION, ACCIDENT
Virginia WITTE, Appellee. M. Appeals Kentucky.
Court
July 1, 1966. Rehearing
As Modified Denial of Sept. 23, 1966. Ruberg, Covington, &
O’Hara lant. Jolly, Kaufmann, Root &
Bassmann, appellee. Newport, for PALMORE, Chief Justice. a co- appellant, August membership association operative E. York, issued in New domiciled James in the insuring him certificate aWitte life $10,000 amount independently exclusively, directly, “caused any other disease, bodily infirmity resulting injuries cause, bodily by accidental solely external solely and caused appellee, violence.” accidental wife, his Virginia M. while November
beneficiary. On force, died still in policy was leg inflicted in his of a wound result alter- domestic during knife by a kitchen cation wife. Campbell was indicted felony Court
Circuit She tried manslaughter. *2 1959, part guilty proof latter and April, found “7. Affirmative of loss must involuntary manslaughter, a misdemean- furnished to the Association at its said or, office, for which sentenced to 9 months she was case of claim for loss of time county jail disability, days the and fined At the within after ninety $500. 1 involuntary time in the crime the period termination of the for which manslaughter, liable, committed with a dead when the Association is in case ly weapon, instrument loss, ninety was defined as claim for other within days killing through unintentional careless use after the date of such loss.” Commonwealth, weapon. of the Sizemore See policy’s Mrs. Witte unaware of the Ky 77, ., (1961); 347 S.W.2d existence until some after her hus- time Stanley’s 874, Juries, 883. Instructions to §§ produced band’s It was by death. Her claim as the brother, aрpointed person- had been who as having brought been rejected, Mrs. Witte representative al estate. decedent’s company this action insurance the Harry He attorney, delivered it to his Hon. $10,000. and was judgment awarded Luedeke, then wrote the who a letter to company appeals. The 1958, 12, company under date of December notifying it that with an ac- Witte met (1) questions, There are wheth- two basic 1958, cidental death on November defeated er Mrs. Witte’s claim is estate, request- that he file a loss with the com- proof failure to ing papers necessary filing pany days within 90 her husband’s for the benefits. death, required poli- terms and, cy death (2) whether Witte’s company Luedeke The answered Mr. meaning “accidental” 17, 1958,enclosing a letter December dated policy. The determined both trial court him proof advising of loss forms company. adversely issues these and, timely it had not received notice2 moreover, “the requirement notice After a of immediate Witte, Es death, ‘Virginia not the contains M. wife’ and in the event of not, however, following provisions relating tate.” It did send Witte, employed of loss Mrs. but forms to of loss: investi detective service to Pinkerton upon receipt “6. Association gate death. the circumstances of Witte’s to the claimant such notice will furnish 27, 1958, a Pinker Beginning on December usually such forms furnished as are spent days “on and tоn about nine detective filing If such forms it for of loss. not inter investigation. off” in did He days are not so furnished within fifteen view at home Mrs. as she was not notice, after the of such the claim- never when Luedeke he called there. Mr. complied ant shall be to have deemed did Mrs. that he had advise Witte requirements this certificate with forms, give them of loss nor did hе send or upon submitting with- her, he assumed the time fixed in the certificate beneficiary, company, knowing she was the filing proof cover- of loss written (as, a set forms had itself sent her occurrence, ing the character and extent indeed, do). said it of the loss claim is made. for which See, however, Trieger subsequent By v. Commercial amendment of KRS 435.- Ass’n, 1962) (c. Mut. Acc. 122 Misc. Travelers Acts of crimes (1923); involuntary manslaughter Insur Couch N.Y.S. p. 643). § 49.14 were redefined and reclassified. longer contends it did no not receive notice of Witte’s death. Mrs. she first Q Witte testified that became left you —“And policy mid-January process your aware of 1959 behalf?” when it was her Mr. Luedeke shown to right.” A—“That’s office, gone at which she had Hоpkins, attorney she Hon. T. William treats Though counsel to defend criminal left meaning this last answer *3 proceeding. represent- being She was also policy process Mr. Luedeke “to ed in that connection Hon. Malcolm meeting, in mid-January her behalf” at the Rhoads, partners. one of Mr. Luedeke’s it seems us back to clear to refers Thоugh she learned on this occasion previous in statement she did so she beneficiary, was named as the April. import The fair of this and other her, was not turned over to there is and testimony that she never is was nothing in transcript suggest by any attorney any purpose other than for she read it or was made aware of the defense requirement. pоint At this we charge until some time the trial on excerpt continue narration with an April 21 said it and Mr. Luedeke testimony Mrs. Witte’s under cross-exami- April May, was his of- early late nation : signed fice records show that Mrs. Witte policy April 29, on Q it retained Mr. Luedeke ?” —“Was A—“It was.” detective During the Pinkerton the time see investigating the case he went Q your behalf?” —“In in an effort Luedeke and Rhoads Messrs. right.” A—“That’s rec- see certain to secure authorizations to represent- ords, Rhoads, but Mr. who was Q you representing to make —“He per- case, not in would ing her the criminal a claim?” employed Mr. mit it. So after Mrs. Witte following the representing April A—“He was estate.” Luedeke at the end of did was thing criminal he trial the first Q you this names as the —“But May 11, enclos- write the on detective beneficiary. you Did consent for see ing copies form to signed of a consent your handle this on behalf?” letter forwarded the records. This company, the insurance returned A—“Not at that time.” which May letter of forms to Mr. Luedeke Q knew he had it?” —“You 25, 1959, time for fil- advising him that the fol- ing expired. There of loss had it, A—“He had as other insur- well exchange correspondence lowed policies papers.” ance 29, 1959, May letters of 27 and making Q you he advise he was —“Did attorney loss and re- submitted your behalf?” on this minded the that the detective had acquired pertinent details of the case A—“Not at that time.” company by investigation; Q your intentiоn to leave —“Was 2, 1959, posi- letter of reiterated June a claim might with him so that he make tion, papers .they returned the and said were your behalf?” properly anyway; filled out the attor- ney 3, 1959, July papers; A—“I Mr. Luedeke resubmitted the rejected this affair.” and on July to attend to the company again. them This suit followed. Q you aware January, werе —“In policy?” this stipulated It was in the trial court that parties insur- A—“Yes.” investigation, prevent anee are the law of and to fraud governed upon 3(A) (7) imposition it.” New York. 29A Subsection § Am.Jur. ; York, 1374) (Insurance, McKin- Couch the Insurance Law of New on Insurance § ney’s Consol.Laws, 14, p. O’Reilly enacted in IS); c. 49.373 § 1951, required Co., loss 90-day proof Guardian Mutual N.Y. Life Ins. 169, Am.Rep. clausе in accident and sickness policies to sentence: include this further possible physically it was “Failure to within furnish such be to submit required
the time invalidate nor shall not trial, prudent insur fore the criminal no reasonably reduce claim it was approved possible time, give proof such out paid awaiting her claim without provided soon is furnished as that she come. Had been determined reasonably event, possible no *4 claim husband intentionally killed her except legal capacity, of absence beneficiary have of the would later year proof than one time from the barred, have been estate would Witte’s required.” is otherwise proceeds. only been to еntitled the importance having the company to the of Mrs. Witte contends that this sentence timely early facts at an date was to a requirement make rather than 90-day the strict possible. investigation applies.3 not, the it This company says does already, knew done before Mrs. provision virtue of a in saving the 1951 even that the (c. 630, act existed. That circum Sec. of fol- Acts 1951) as legal significance stance the has no lows : - standpoint company’s prej of the not being “This act July shall take effect delay, udiced the because it is settled policy, form, A rider or endorsement prejudiced an insurer need not be lawfully could have been used or rely require order to its cоntractual delivered delivery or issued for to to But ments as notice of loss. person in immediately this State before think, significant, is we stand from the the effective date may of this act be used point of the waiver. clause 6 of or delivered delivery or to issued provisions so standard of the is person years after five the company’s fail nеglect worded that the effective being date of act without ure to the furnish forms to loss subject provisions to the subsections after preliminary aof two or three of hundred section one notice of accidental in it death would not sixty-four.” submitting self excuse the claimant from type anyway, some view our is however, It is not necessary, that we de- company’s to the failure deliberate cide of whether Mrs. Witte’s necessary send the forms to Mrs. submitted, coupled its promptly causing an inde is our circum- conclusion that under the pendent investigation be to be made on requirement stances of the case half, implied did amount to waiver be considered as waived having been or, technically the requirement if not a company. waiver, estoppel. Fidelity Cf. & Guar. Underwriters, Ky., Inc., Gregory, Ins. purpose provision “The of a no fact, ap S.W.2d there proof of is insurer tice and to allow the pears authority to be some investi that an form an intelligent estimate alone, quite gation from a failure liabilities, opportunity aside to afford it an statutory requirements shall Law York § 143 New Insurance provides as if it had be enforceable if a violation is conformed. Indeed, in that case forms, may slaughter. furnish be suffi- emphasized expressly F.Supp. 232) In- (at a Couch on cient constitute waiver. distinction as follows: 49,872 305). p. surance § Certainly fully ad- which hold cases been found “No vised itself of the circumstances of Witte’s receiving person is barred from purpose death there to be was no whatever * * * he killed the benefits unless filing' served loss. he person from whom intended to kill the con- Hence we concur in the trial court’s In other the benefits. receive clusion that the is not defeated words, gone ever as the law has far timely proof Mrs. Witte’s failure submit recovery of benefits which prevent of loss. payable due and not have become taking except the intentional day death he and benefactor. quarreling. left house life Witte were He and she tried to lock him out. He found many “Now, way, there are same unlocked, they kitchen struggled door hold that a decisions which sought as she to close the door which he was barred from is not guilty trying to he During enter. this encounter man- are called in cases which thigh, received cut or stab wound * * * all are slaughter cases. These from which he bled to suffi- death before intent on which there was no cases in cient aid procured. to save his life cоuld life of the part of killer to take the *5 benefactor.”
The that if contends manslaughter committed she recover cannot authority, nor We do not find on the policy not, and that then if she did attention, sug to our has been referred aggressor, Witte was the in which his event forbidding policy that law gesting death was meaning accidental within to another intentionally had killed one who of the policy. Cf. Prudential Life Ins. Co. applies to his life collect the insurance on Overby’s Adm’x, 750, Ky. v. 251 65 S.W.2d homicide, though even unintentional 1006 neg by reason may unlawful have been stipulation Pursuant to the evidence in gross negligence. ligence or this proceding relating to circumstances judgment The is affirmed. transcript death was confined to a the testimony at the criminal trial. professed not to knife have seen the MONTGOMERY, Judge (dissenting). until bleeding. after Witte said he was majority opinion. agree I cannot with the herself, she denied having it she wrong York law It because the New said that she did not it in hand see by agree- governs policy provision and either. jury in the criminal trial ob- majority does ment of counsel. viously decided that she had it but case, any applicable New York not cite cutting from resulted carelessness and not ninety-day upholding the while the rule an intent kill. Under the same evidence upheld requirement has been proof of loss was unreasonable for the chancellor many cases. to draw the same conclusiоn.
Metropolitan
McDavid,
Life
Insur-
MacKay Metropolitan
Ins. Co. v.
Life
In
v.
154,
F.Supp.
42,
1941),
Company,
39
228
case
281
22 N.E.2d
(E.D. Mich.
N.Y.
authority
required by
on which
relies
held that the
was
proposition
provisions
given
policy
that Mrs. Witte cannot
be
must
recovery
ninety-day
recover
she committed
limit and therefore
Casualty
husband,
Maryland
the death
her
applicable,
is not
In
refused.
724,
because it
Company Massey, CCA,
was a case
man-
v.
6
38 F.2d
71
of intentional
1428, proof
day
pro-
A.L.R.
filed one
used
of loss
late
te’s death.
the letter he
“We,”
firm,
was held to be too
referring
including
late
was
noun
to his
1958,
denied. Both
17,
of these cases were cited with
his
Rhoads. On December
firm
approval
Trevvett,
case,
a 1965
Bland v.
receivеd
of loss. Luedeke testified
534,
644,
23 A.D.2d
in which
appellee
N.Y.S.2d
that he advised
in December 1958
ninety-day
comply
failure to
with
the firm had
and that
she
provision
as to
of loss was held to bar
beneficiary.
was the
He also said
recovery.
See
North
by appellee
also
firm
Whiteside
was not asked
collect
Company,
May
American
200 N.Y.
Insurance
on
until
948,
696;
93 N.E.
35 L.R.A.(N.S.)
Sorgs
that Luedeke told
Willaim
testified
Equitable
Wachtel v.
Assurance So-
Life
him in December
that he
850;
ciety,
266 N.Y.
appellee. Appellee
194 N.E.
that she
admitted
be-
Foulis v. Commercial Travelers Mutual
she
came aware of the
and that
Association,
Accident
beneficiary
meeting
Misc.2d
named
at a
Jan-
uary 15,
Luedeke, Rhoads,
N.Y.S.2d 82.
with
attorney
Hopkins,
another
who
The Bland v.
case involved the
Trevvett
employed
representing
been
to assist
policy provision
identical
action
since
on the criminal charge.
Trevvett
treasurer of
There, proof
furnished
lant.
that she was the
Inasmuch
evidence
$10,000
five and
late. The claim-
one-half months
insurance
delay
sought
charged
аnt
because of
excuse her
the life
she was
man whom
“inability
a statement
killing
secure
been evidence of a
would have
condemning,
passenger in the automobile at the time
motive
been
hospitalized by
the accident who had been
is fair
assume
that the
urged
injuries.”
reason of serious
also
thor-
provision
She
were
estopped
deny
that the insurer
meeting.
“was
oughly discussed at this
furnished
this is that
significance
The further
cooperated fully
agent
she had
appel-
whether
there was a serious
appellant shortly
after the accident and
*6
beneficiary under
lee could have
collected
her at-
given
copy
full
a
of
details and
if she
convicted
had beеn
torney’s
Recovery
file.”
denied.
It
felony.
over on
trial was
Soon
“reasonably possible” pro-
was held that the
22, 1959,
freed
appellee had been
part
vision was not a
and did
felony
proof of
charge,
apply, citing
above
three of the cases
processed
Luedeke
at
direction
doc-
cited. The court
“Nеither the
said:
appellant.
filed
accounts
This
estoppel
public policy of
trine of
nor the
not be
delay for
appellant
sup-
liberal construction
can be invoked
under the
charged
justified
which is
port
respondent’s position.
The failure to
Trevvett, 23 A.
New York law. Bland v.
con-
comply
with the
statute
and the
644;
In
D.2d
Allstate
256 N.Y.S.2d
trolling
require
com-
a dismissal of the
Company
Misc.2d
Manger,
surance
v.
plaint.”
326,
of the insurer’s I
For these think reasons appellee’sfailure
lant should win because of ninety days of the
to file of loss within appellee
death of James fully cognizant as benefi-
ciary reason of notice
and advice her own counsel well within appellant ninety-day period, and because loss, right
did not waive
all of which should bar her.
HILL, J., joins in dissent.
Nancy al., Appellants, THORNBERRY et
Mary TIMMONS, Appellee. Jo & Dysard, Dysard, W. H. Johnson Appeals Kentucky. Court of Ashland, Welch, Arthur, Joseph B. William Lisbon, Baronzzi, Ohio, Feb. appellants. J. Creech,’Ashland, Rehearing appellee. C. Denied Oct. B. *7 CULLEN, Commissioner. Timmons, Appellee Mаry moth- whose Jo adopted er died in great grand- 1963 her maternal aunt. intestate, leaving as his father died grandchil- several children and descendants Mary dren In this ac- in addition Jo. cir- tion declaration judgment declaring cuit entered court Mary adoption barred Jo grand- inheriting a share of her father’s estate. The other descendants grandfather appealed.