Life Insurance Company of Georgia v. Miller
296 So. 2d 900
Ala.
1974
Check Treatment

*1 525 possi- tacitly reserving objection his a there must any persuasiveness will have appeal. State, ble 193 appearing in Cox inadequacy specific acts of So.2d (1967). as to how inade- a showing and the record may have affected quate representation argu- studying After the defendant’s not does adequate defense An verdict. record, carefully reviewing ments not commit will imply that counsel mean to upon is no which we conclude there error errors. prove be tactical may later to what base to a reversal. left to the strategy are trial Matters Affirmed. de- conducts counsel who judgment of State, Taylor fense. MERRILL, MAD- HARWOOD was defendant (1973). Here the So.2d DOX, JJ., concur. accordance with represented in adequately provides. what the law HEFLIN, J., concurs result. C. argu makes The defendant he was indigency, of his because

ment that pro investigate or adequately able defense, State witnesses

cure his to pay an funds award sufficient does not 296 So.2d 900 things, too. To attorney and do those is in a difficult indigent defendant sure an In re OF LIFE INSURANCE COMPANY been raised be position. question This has GEORGIA, corporation, a . State, Ala.App. fore Wheeler provi some While 256 So.2d Lana McCullers MILLER. sys federal made for this sions are parte Ex Lana McCullers MILLER. tem, present not the situation it is necessity requires defend This of State. SC 379. press of mental an issue ant wants who Supreme Alabama. testimony rely competence to on whatever March 1974. investigation

comes out of court ordered above, sections rather under the discussed Rehearing Denied June 1974. pro testimony personally from than on specialists. can of psychiatric We cured juncture at would

fer no relief this problem, say but cannot

alleviate was denied

this case that defendant Finally, the process of law. defendant

due the trial court’s failure

claims legal

charge jury the offense consti

sanity at the time of such

tutes There no refusal of error. because none charge the trial court requested by defense. There prior to exception charge the oral jury time the retired to consider that when It has been stated

case. often counsel

the defendant his time charge, oral

and hear the any objections to the substance

to voice can’t remain The defendant

what said. verdict, speculate a favorable

silent and *2 Brobston, Bains, Bessemer,

E. Lee L. petitioner. *3 Ansley Gillon, Riley,

Spain, Tate & Blan, respon- Jr., Birmingham, for

Ollie L.

dent.

HEFLIN, Chief Justice. a the court on Writ before This case Appeals, of Civil the Court Certiorari peti- 896. Ala.App. So.2d grant- tion for the Writ of Certiorari apparently a what ed review explain to Miller and con- Mr. impression first state —the rated-up policy up-rated him given struction to be than would be Appeals re- more of Civil Court insurance. previously paid by him. judgment by the $6.05 versed a Circuit Division, sit- County, Bessemer Jefferson peti- in favor of ting jury, without Thomas, “Mr. Elmer the chief under- Miller for tioner-appellee-plaintiff Lana M. appellant, writer stated that Mr. policy is- $5,000 insurance based on life Miller’s for insurance was respondent-appellant-defendant by the sued vestigated, having been a because company. driver, speedy his insurance reckless and thousand, uprated by per $3.50 facts, dispute, which are not Pertinent is an additional amount over opinion of the Court from the above the standard rate. peals are set out below: *4 ‡ í|í íJí Miller, show that L. “The facts Jack undisputed is “The evidence that Jack appellee, made husband of deceased applied agent appel- L. Miller to an policy with an insurance application for $5,000.00 policy lant for a life insurance 21, policy appellant The on March 1969. 21, day on March and on same 1969 in of Miller applied for was on the life paid premium the first month’s such for $5,000.00. support of the amount policy $6.05, in the amount of which was premi- first month’s application, policy. rate for such a It standard ap- paid agent of was to the um $6.05 undisputed appellant also issued the standard pellant and this amount was $5,000.00 policy life insurance to Jack policy issued. rate for premium, Miller for an L. but increased physi- to take a Miller was asked “Mr. e., $6.25; although i. evidence missing several after cal examination and premium showed the stated was in error re- comply with the appointments did uprating an notice and was mailed with quest. policy.” 9, policy of insurance May “On appellee in The this case asks the L. by appellant to issued Jack court to consider text of the condition applied plan and amount Miller for al receipt underwriting and the rule men rate, for, at an increased but tioned Appeals the Court of but in Post placed in the Office U.S. opin not set out in the text of that court’s Atlanta, on the same date. Georgia general ion. The and most often stated Miller stated lanta because of collision. abama, trict office of Sunday, May 1969, [*] “The “The killed returned agent on policy was received [*] as a result Monday, that the for appellant to the home 11, 1969, [*] for insurance the death of appellant May [*] was, of an automobile in Jack 12, Bessemer, Al- who obtained office [*] on received Mr. in 1969. from Mr. L. May Miller. in At- Miller [*] dis- On 12, Ala. peals. mon, In Re Russellville nation of the record review upon facts as are rule is that on appeals the law to the facts 309, 260 289 Ala. will may E. Union only on findings g. ordinarily be stated So.2d 395 effected without questions of fact or the certiorari, Gas Co. 270 So.2d 108 (1972); Camp Corp. filed review the courts of (1972). except opinion a court of law Duggar, application an exami as to the v. so that a Supreme and not Black ap However, appear the life of Mr. there do be district office they exceptions some rated-up policy general proposi Miller these important to deliver tions.' Most an opportunity not have rule did them, dispute states there is no about many that where nor matters argued other facts, go may petition to the record brief on this set out it. complete understanding questions for a But result reached that court is ap- opinion treated of a court of interpretation controlled its of a con- Manasco, peals. Liberty Mut. tract there referred sets out to. 271 Ala. 527 (1960); contract, So.2d South- one clause of that will we Ry. ern v. Terry, 268 Ala. 109 So.2d refer to the record to examine it as a granted The writ was whole order to consider that clause.” instant case to review a matter of law also, State, See Bennefield an issue impression of first in this state— State, So.2d 55 Johnson given up-rated the construction to 173 So.2d 824 and cases (1964) policy. dispute There as to cited therein. case, facts and thus it would appropriate go seem in or- the record opinion of the Court of Civil get der understanding a better of what Appeals in interpret the instant case did below, especially occurred is a since this underwriting compa rules of the insurance case of impression. first As will dem- ny and the last authority cited cases are onstrated, the issue of the construction of examining the underwriting rules and up-rated depends upon in turn related evidence in order to if determine the construction of company’s under- the court properly construed them. *5 writing again a matter of In law. rules— Cranford Surety Corp., v. National 231 may The court not and will not en 636, Ala. 166 So. 721 the (1936) court stat- redetermirjation ter into a of facts when ed: opinion those facts are set out the of Appeals, but after hav “On certiorari to the Court of ing gone record for a better under peals, applicable we adhere to the rule standing is of the not in dispute, facts certiorari, only ques- common-law that scope within the of review for this tions of law will be considered. But that application determine whether the of the includes of whether we law to facts inwas error. Cranford v. agree with the application of the law to Corp., supra. National in Surety In the the facts as by found and recited that case, purport this stant court does not Milling George, court. Reichert Co. v. by contradict the facts as found the Court 589, 402, 230 Ala. 162 So. and cases however, Appeals; of Civil facts will those cited, State, there 343, Hood v. 230 Ala. light be viewed in of this court’s under 543, 162 only So. and we consider the standing as to the rules of construction questions which were treated applicable. here Appeals. Court of for The basis the decision of the “But dispute when there is no about Appeals applica is Court of Civil that an facts, we examine the record for a tion for is a mere offer which complete more understanding of those ripen accept not into does a contract until features of it which are treated. Fair- company. ed If the com the insurance banks, Dees, Morse & Ala. Co. 220 pany policy materially different issues a 604, 621; State, 126 So. Hood 230 for, applied eyes from that of the Ala. 162 naturally 543. This in- So. law, rejection is a of the offer pleadings, charges, cludes and contracts is a counter-offer which becomes which interpreted that court has accepted binding only contract when opinion under consideration. original offeror—the would-be insured. opinion “That does general case recognizes This court that these terpret pleadings, nor treat demurrers propositions Ala- of law are correct. See 530 finding trial court erred Mayes, er not the 61 or Life Ins. Co. v.

bama Gold pre- at the applicant was insurable that Life Ins. (1878); 163 Cherokee applied for. mium rate (1919); 175 Brannum, 82 So. 203 Ala. Headrick, United Ins. v.Co. up- for that reason It clear Life McLean (1963); 157 So.2d 19 premium grew out of a notation rating the N.C.App. 180 S.E.2d Virginia, that the deceased report in a retail credit Life Insurance (1971); Novellino v. reputation being reckless had the America, (Del. A.2d Co. of North speedy plaintiff contends driver. Ins. Life Accident 1966); National & not fol- company were rules of the Carmichael, Tenn.App. Co. v. premi- of the up-rating lowed but that v. Coastal S.W.2d 925 Sasser arbitrary decision on was the result of um Co., Ga.App. 17, 147 Life States company’s part under- of the insurance S.E.2d 5 writer underwriter admitted since company had no information the insurance asserted, however, instant been in knowledge or that the deceased had insurance com- case that action any any guilty or been accidents had was unreason- pany up-rating moving violations. arbitrary should so that the able ap- rate being as issued at the construed company’s underwriter testified that should be con- plied for. This contention up-rate the decision to provisions along sidered with company’s underwrit- accordance with the by the receipt conditional issued pre- obviously were ing rules. These rules company application at for the time the company and the pared the insurance receipt provided policy was This made. knowledge of the contents insured had parlance in insurance also what known made of such rules when he ap- Under the “temporary insurance”. construing under- insurance. these plicable provi- and the facts of case Appeals writing rules Court of Civil receipt, “temporary sions of the conditional as follows: stated *6 as of the date would commence insurance” required (April of a medical examination “Appellant [appellee] contends [sic] 29, provided the 1969), the conditions of by that the followed the underwrit- rules language of receipt were satisfied. The up-rating in er Mr. Miller’s do receipt company, if provided that the the and that determination authorize such a medical examina- investigation after and mandatory and the in rules prac- tion, under rules and However, is satisfied its must followed. the under- at time the medical exami- tices that the of testified the were a writer that rules applicant the for and nation insurable approving guideline mere be used in to plan eligible on the was also for insurance applications for disapproving or insur- the and the amount and at for agree ance. the underwrit- We with for, coverage would applied then the rate We the used language believe er. of medical be in effect the from date con- is much more so-called rule examination, further, in- that the provided interpretation ducive that is mere to application. company approved said surance pol- guideline rather than a strict of rule icy must be to the letter.” followed poli- company issued a The fact that the applied cy plan for the amount for testified that underwriter The is examination for the medical following reputation as contained in driving insured’s that the insured evidence rather conclusive report following retail credit made the plan eligible for was insurable applicable rule to him: applied and that the for for the amount two with or approved application. “Moderate Criticism —Those company surance moving or more violations one or more wheth- real issue involved Thus fault, applicant fault, being applicant’s and, is at accidents in addition ei- two, speeding in a fast and ther of reputation speed- reckless manner these for ing in rating will be considered at of a fast and reckless manner. $3.50 ($3.50-5-3 apparent with no benefits. that this construction em- ployed Family Plan).” the trial court. regard con

The law of this state with underwriting addition rules policies of insurance clear and struction driving pertaining motor vehicle the in- underwriter, well-settled. An insurance contract will be company, through surance its strongly against party construed most attempted prove com- practice of the framed it in death. Life & who case of pany past with moder- connection Whitehurst, Casualty Ins. 226 Ala. driving. Co. ate criticism motor vehicle 687, (1933); 148 So. 164 United States This in evidence two placing was done McCormick, Fire Ins. 286 Ala. Co. v. company con- files which the insurance in (1970). The contract of So.2d 367 ap- practice tended its under illustrated against strictly surance will construed up-rate poli- plicable underwriting rule to liberally favor in insurer and of the would cies a construction which read under g.E. Life of New above, sured. Mutual Co. conjunctive “and,” Ins. emphasized Lovejoy, York v. 201 Ala. 78 So. 299 being disjunctive as “or”. In both cas- Wilson, Southern Ins. (1918); Co. applicant’s report es criti- did have Ambiguous Ala. 108 So. 5 reputation. his But driving cisms of provisions of an will be applicant’s report contained one case the strongly against construed most the insurer entry: “Past indicates violation MVR g., and in favor the insured. E. Nation 7-12-66, speed 6-16-66, cancellation Lokey, al Life & Accident Co. Ins. license, speeding of chauffeur’s 8-16-66 So. 45 New York report contained credit ticket.” other Torrance, Life to the criticism: this annotation in addition principles So. (1932)). These same he has had accident “Files show that some employed construing should be other hit past. he in 5-64 when Had loss prepared documents and used the com This his another head on. totaled auto pany affecting despite insurance. appear that Thus would auto.” court, trial apparently following these contrary, the files protestations to the construction, plain rules of found for the the com- these demonstrate that even cases Accordingly, tiff. rule underwriting the standards of pany itself construed should have been examined conjunctive so underwriting being rule *7 Appeals Civil in light up-rated of these policy well-settled that before would a pre rules of moving construction and the usual viola- there would be criticism and sumptions supporting the decision of the previous accident. tions criticisms and a or Appeals trial court. The Court of Civil

erred in doing. not so In the case at hand there was driving

only the deceased’s criticism of applicable the light, Viewed that ever reputation no indication he rule, underwriting which an admittedly moving a accident. had violation or the decision to the company’s up-rating basis for the underwriter’s in the Since action up-rate policy should have justified the deceased’s was not either the un court, strongly against been the construed most this derwriting rule construed as ' or, indeed, apparently insurer and in the favor of deceased. as construed the itself, Such a construction meant that company up-rating would have decision was premium up-rated arbitrary could have been an and the clearly one applicant moving taking an with or more vio being two be read as made without must lations, or into arbitrary one or more accidents where act the underwriter of since, although all position Virginia, adopting either v. Life McLean account. See necessary for such a determi- elements held that because court supra, where the qf present, making appear the Court nation that in was no evidence “[t]here this Appeals didn’t address itself to premium] up-rate a Civil this determination [to unreasonably, For the various issue. a discussion of company acted the insurance see, Pyramid faith,” up-rated on this issue views Service v. arbitrarily, in bad or Co., P.2d 944 a Life Ins. 201 Kan. but policy issued an acceptance was not (condition Adolf (1968) subsequent); where the decision counter Thus offer. Ins., N. arbitrary, it Union Nat. Life 170 Neb. up-rate was unreasonable (1960) (condition precedent); in disregard it W.2d will that the court follows Annotation, & A.L.R.2d 964-68 Cf. construing policy. Western Law, Couch, Cyclopedia Vale, G. of Insurance 213 Ind. §§ Life Ins. Co. Southern (no poli- coverage), (coverage 14:41 14:42 (1938) (industrial 12 N.E.2d 350 held, pending acceptance or injury; rejection) application after cy rejected coal rejection grounds that insured summary, this now holds payments not make probably could miner Appeals re- the Court Civil committed effective); arbitrary and therefore under- construing versible error in not Carey, Life United Founders writing strongly against rule most (insurer’s offi- (Tex.1963) 363 S.W.2d 236 construed, surer. When so becomes temporary right could not defeat cers premium up-rating that the clear act of pro- by arbitrarily refusing to arbitrary unreasonable, and when opinion applicant’s as to form an ceed an insurer solicits from an applicant’s death). insurability after customer, de- premium, the first receives to make clear The court wants termines that customer insurable important receipt while the conditional from a standpoint pol- medical and issues a spelling its out language because of customer, icy insuring the the trial court company which conditions under was within its to disregard an discretion concept of provide agreed coverage, up-rating arbitrary unreasonable and act discussed “temporary was not insurance” part on the of the insurer and opinion of the Court of consider the acceptance of peals properly this and thus is not before application. offer as made possible from court. to conclude Reversed and remanded. concept record case that this “temporary litigated insurance” was not points out

the trial The court court. MERRILL, MADDOX, McCALL authori- because there is conflict of JONES, JJ., FAULKNER and concur. ty proper condi- as to treatment receipt tional facts like those under COLEMAN, HARWOOD and BLOOD- line exist case. In one instant WORTH, JJ., dissent. are receipt cases the conditions precedent so that viewed conditions coverage exists all the conditions until BLOODWORTH, (dissenting). *8 Justice met, the con- line cases the other af- respectfully I most I dissent. would subsequent ditions deemed conditions so firm the decision of Court of Civil coverage effect from the date of is in peals. examination, which- or medical if applicable, subject

ever to termination rejected by company. This HARWOOD, the risk is JJ., COLEMAN and court does this case be seen want concur dissent.