*1
WINHAM,
WINHAM,
LEIGH
INC. аnd Leigh
v.
et
Individually
REYNOLDS INSURANCE AGENCY al
82-305
Supreme delivered Opinion May *2 Clark, G. Thompson Michael Eldredge by: ér Friday, O. Timothy Dudley, appellants. Davidson, Horne, Arnold Hollingsworth, Grobmyer, & P.A., Williams, Allan W. Horne and R. Rule by: Virginia Student, XII Law for appellees. P.A.,
Laser, ir National Sharp appellee Huckabay, American Insurance of New York. Company Win- Dudley, Leigh Robert H. Appellants, Justice. Inc., ham, and Leigh an interstate trucking company, Winham, alleging filed suit individually, appellees, and National Ameriсan Insurance Inc. Agency, York, insur- denied wrongfully of New Insurance Company ance and refused to a valid claim. pay the alternative Insurance pleaded appellee Reynolds The the insurance. failed to Agency negligently acquire of both court favor granted summary judgment appellees. pursuant Rule affirm. is in this Court We 29 Jurisdiction (1) (o). is no genuine
A if there summary judgment granted material fact that would any preclude issuе as of law. ARCP Rule in favor of the as a matter moving party conse- remedy; A is an extreme (c). summary judgment be the motion must submitted with any proof quently, favorably party resisting viewed most any to the motion against doubts and inferеnces must be resolved moving party. Talley Co., v. MFAMutual Ins. Ark. 260(1981). 620 S.W.2d facts, against summary
The construed the movants for judgment, Appellant Leigh Winham, are as follows. appellant Leight resident, Winham, Inc., California corporatiоn, trucking California leased six units to B. J. McAdams, Inc., an interstate hauler with offices North employee suggested Little Rock. An appellants purchase of McAdams through appellee
their insurance Reynolds, аgency. Little Rock In late December of appellant Leigh Reynolds, Winham contacted John principal appellee Reynolds Agency, by telephone. *3 prior two did not know each other and had had no business dealings. inquired Reynolds insurance, Winham about and premium stated that he would calculate the and call him January 2, again 1979, back. On Rey- Winham contacted according and, Reynolds Winham, nolds him told year’s premium, total amount of the full the extent of coverage, and the cost of the first installment on the premium. Reynolds Winham stated that he informed he coverage immediately Reynolds had to have that the insuranсe told him
coverage would “be bound effective day corporate postmark.” of Winham mailed a check on drawn Reynolds January Upon 3, account to on 1979. Reynolds payor had his bank contaсt the and, doing, appellant in bank so discovered that had Reynolds insufficient funds in its account to clear the deposited January 16, the check in his own bank. On given corporation’s Winham was notice his back that his Jаnuary check would not clear. On Winham learned that one of his trucks had been in involved an He accident. called Reynolds to inform him of the claim and to him the tell check would be returned for insufficient funds. Winham Reynolds redeposit asked the check. hesi- money tant and Winham wired him the which accept. again phoned that, refused to Winham and stated “[Reynolds] going told me that he was to have to check with they the insurance insurance, to see when wanted the they policy. dated, when wanted it the date of the And said, my coverage? bound mean haven’t you And I You well, see when with them to he’s to check got he said in course And then of the dated. want the date me, he was about something he said week he also asked would I allow get signed application, to have to going [an me.” application to sign employee McAdams] that the was informed Winham In late January, settled the claim denied. In Winham May claim was the accident. tortfeasor who caused against on two summary moved for The appellees since was ever force no insurаnce (1) grounds: dishonored; if insurance (2) check was force, admittedly given by appellants the release clause subrogation their claim was a breach of settling the policy. that prepayment first contend However, is not a condition precedent of the premium rule is that “payment
our general of a policy necessary operation a condition ordinarily insurance, made in to that effect usually provision Stancell, Ark. Okla. v. Home Fire Ins. Co. the policy.” course, 578,127 to our we have exceptions Of (1910). S.W. 966 oral effective recognize rule. For we example, general of the premium. are often to payment binders issued prior *4 Ins. Co. v. Home 1980); Ark. Stat. Ann. (Repl. See 66-3219 § Also, 51, are (1972). policies Ark. 193 252 Moyer, 477 S.W.2d 204, Cox, Ark. S.W. sold on credit. 63 877 King often v. 37 604, Co., F. v. Fire Ins. 196 Supp. Mann Charter Oak (1896); Ark. 1961). (E.D. 609 favorably after the facts most judge, viewing
The no of a material dispute found that there was the appellants, of in favor that all of material facts were fact agent, the insurance contention that Reynolds, appellees’ payment of precedеnt not waive condition ordinary did be insurance would that “the the premium stating of accepting and then day the postmark,” effective 321 appellants though that, fact contend Reynolds’ puted, acceptance statement and of the check is undis- may
reasonable men reach different conclusions from summary proper. facts and so was not those Summary judgment should be denied if under the evidence might men reаsonable reach different conclusions from undisputed Runyon (Okla. 1973); Reid, facts. v. 510 943 P.2d Lang (1964). Cruz, 473, v. N.M. 394 988 74 P.2d
Reynolds’ statement establishes that there was no appellant Winham, intention to extend credit to un- an person. existed, familiar Had an intent to extend credit put would have a binder for insurance in effect immediately telephone after the conversation than rather Moyers, when check was mailed. See Home Ins. v.Co. (1972). 51, Therefore, Ark. 252 193 it was not 477 S.W.2d grant summary judgment error the trial court to on the prepayment premium basis precedent of the was a condition Appellants prepayment next if contend that even of the precedent, summary judg- was a condition improper ment was because issue whether the appellees accepted plaintiff’s payment check as absolute question was a of fact. are correсt that the question resolution of this issue involves a intent. However, law “[t]he is well settled that a check as payment prevent policy for an insurance is conditional and will not non-payment
a forfeiture of thе premium. company’s course, Of if the insurance acts indi- receipt cate that will such justify finding that the insurance bound.” Co., 474, v. American Pioneer Ins. Ark. 500 255 Jones Life (1973), citing Brennecke, S.W.2d v. 748 National Co. Life (1938); Security 1088, also, Ark. 195 115 see 855 S.W.2d Punсh, Association v. 994 Ark. S.W. 292 Benefit (1927); Wright, National Ark. Union Fire Ins. v. Co. (1924). however, case, S.W. In this none of the 257 insurance receive company’s acts intended to indicate unconditionally worthless check as *5 company. pаyment in order to bind the insurance Nevertheless, the argue that actions appellants enable reasonable men to reach a different Reynolds might to contend that addition They Reynolds, conclusion. the be effective when check coverage that would stating mailed, he it not the check even after knew would deposited indi- According clear bank. to this appellants appellants’ Then, catеs intent to late of the check. payment an accept check did Reynolds after the return argue, there stated would not that he deny coverage. Reynolds have with the to when it wanted the company to check see returned, After the check had Reynolds dated. been policy employee asked if an of B. McAdams could an sign J. that application. Finally, argue after the accident apрellants told Reynolds appellants they had no for liabilty as it was accident caused tortfeasor. by these actions would not lead to conclu- Together, sion there was an to that intention extend crеdit appellant Winham, an unfamiliar Presentment of person. appellants’ check to the bank was payor establish necessary addition, dishonor of the In the appellants might have funds in the account the interval placed during between the call for and phone presentment payment could have been on its initial pre- good Therefore, sentment. is not presentment inconsistent with a refusal to extend сredit. failure expressly deny that had could not lead coverage appellants reasonable men to intended to conclude extend Similarly, under the facts this case. fact that he would have to with stated that check to see when the would be dated if Reynolds asking sign an of B. McAdams could employee J. an could not be found reasonable men to application date, relate back to the these because original mailing actions were in on response to later assurances Winham’s he January would wire find We no statements payment. Reynolds’ indication intent insurance accept an liability Since men not reach different reasonable could case, from this agree conclusions facts of we undisputed entitled to as matter appellees were law.
Affirmed.
Purtle, J., dissents. Purtle, Justice, first My disagree- I. dissenting. John rеads, ment with the is that which majority opinion portion “However, in to regard summary judgment, here reasonable not reach men.could different conclusions.” I also with that disagree portion of the which opinion stated, “the law is well settled that a check as for an insurance will policy is conditional and not forfeiture prevent non-payment In the business premium.” world insurance is bought over sold telephone instances. An mаny agent authorized give to a telephone binder which immediately binds the insuring In company. such a case failure pay would not cancel the binder. automatically
There is a difference of opinion bеtween the appellant appellee as whether a binder issued the case before us. This clearly controversy requiring If, testified, resources of the judicial as system. agent agreed by to bind the at time telephone a check in the mail placed certainly question there’s fact. has What in the case is that happened present court and a of this majority court have decided the facts to the adversely him an appellant without giving oppor- tunity present his A valid argument jury. to a controversy deserves its in court. To such is to out day deny pull rug from under I say cause. cannot that appellants trial, would a full blown are prevail certainly but entitled make use of the our set Constitution system up would, therefore, and the Arkansas General I Assembly. remand a trial on the issued in this case. disputed