STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. SEVIER ET AL, Respondents.
Supreme Court of Oregon
June 12, 1975
July 15, 1975
537 P.2d 88
James L. Sutherland, Medford, argued the cause for respondents Sutton and Mutual of Enumclaw Insurance Co. With him on the brief were Frohnmayer & Deatherage, Medford.
TONGUE, J.
This is an action by an insurance company for a declaratory judgment that it had “validly rescinded” a policy of automobile liability insurance because of misrepresentations by the insured in his application for the policy. The named defendants included not only the insured, but also the personal representative of a
The principal misrepresentations alleged were that the insured gave false answers to questions on the application asking whether, during the past five years, he had been convicted for a traffic violation or had his driver‘s license suspended, revoked or refused.
The facts.
1. The policy issued in Arkansas.
From 1961 to 1970 Kenneth Sevier had been at the Veterans Administration “Domiciliary” hospital at White City, near Medford, except for several months in California and occasional furloughs to his original home in Arkansas. During that entire period he had no Oregon driver‘s license, but he did have a California driver‘s license. In 1969 he was arrested and convicted in Oregon for driving under the influence of intoxicating liquor. A notice was then mailed to him by the Oregon Department of Motor Vehicles that his right to apply for an Oregon driver‘s license had been suspended. Sevier did not recall receiving that notice.
In December 1969 he returned to his “home town” in Arkansas. On May 29, 1970, having purchased an automobile, he went to see Jack Henderson, one of plaintiff‘s insurance agents. Henderson filled out an application for a policy of automobile insurance which included a question asking whether, during the past five years, the applicant had been convicted for traf-
Sevier testified that Henderson did not ask him those two questions. He also testified that he had known Henderson “for a long time” and that he told Henderson that he had been picked up and convicted for drunken driving in Oregon. He also testified that Henderson said “to Hell with it, maybe they‘ll never find it out“; that he did not know that Henderson put a “no” answer in the “box” for that question, and that he signed the application as filled out by Henderson.
Henderson testified that he asked both questions. He also admitted that Sevier told him that he had been stopped by the police for drinking and driving and given a “balloon” or “breathalyzer” test, but said that he had not been convicted for DUIL. Henderson denied, however, that when Sevier told him about that incident he said “to Hell with it, maybe they‘ll never find it out,” as testified by Sevier.
That application for insurance was then sent to plaintiff‘s office in Monroe, Louisiana, for consideration by its underwriting department. The application showed “no” answers to both questions and made no reference to the 1969 DUIL arrest and conviction in Oregon.
Plaintiff‘s underwriting department then had a “routine, general” investigation of Sevier made by the Retail Credit Company. That investigation included contacts at White City, apparently because his application indicated “physical or mental defects” or limitations and because of further information from Henderson that Sevier had been at the Veterans “Domiciliary” in White City for nine years. No request was made, however, for a “motor vehicle record check,” as
Plaintiff‘s witness testified that if plaintiff had been informed by its agent Henderson that Sevier had been stopped for drinking and driving and had been required to take a test (as admitted by Henderson), “there is a good chance” that a motor vehicle check would have been requested. The same witness testified that if plaintiff had been informed by Henderson that Sevier had been convicted of DUIL it would not have issued the policy to Sevier. Other witnesses for plaintiff testified that the reason for an investigation is to “double check” the applicant‘s answers because plaintiff does not always rely upon such answers.
In any event, after a delay of 40 days, plaintiff issued a policy of automobile liability insurance to Sevier in Arkansas for a period of six months, effective July 7, 1970. Meanwhile, Sevier had applied through Henderson for other insurance under an “assigned risk pool,” which would have been available to him at a higher premium, but that application was withdrawn when plaintiff issued its policy to him.
2. Re-issue of policy in Oregon.
In September 1970 Sevier returned to White City. He was told by Henderson to re-apply for a policy in Oregon. According to plaintiff‘s witnesses, when a policyholder moves from another state to Oregon, a new application is then filled out and submitted to plaintiff‘s underwriting department, which then also has and reviews a file from the other state including the original application. The decision whether to re-issue a policy is then based upon both applications and upon a comparison of the information in both, as well as upon other information in the file from the other state, but without making “the same type of investigation” of the insured as made on the original applica-
In November 1970, Sevier went to the office of one of plaintiff‘s agents in Medford, who filled out a new application. That agent considered his Arkansas policy to be “a policy that was in force” and that “all I was doing was taking a transfer * * * on the policy that was already in force.”
Sevier testified that he did not remember whether the woman who filled out the application asked him whether he had been convicted of any traffic violation or whether his driver‘s license had been revoked, suspended or refused. The trial court found, however, that he was asked those questions and answered them “no.” At that time he said nothing of his prior arrest or conviction for DUIL or of the suspension of his right to apply for an Oregon driver‘s license.
That application was then signed by Sevier and sent to plaintiff‘s Oregon underwriting department and a new policy was issued for an additional six months, effective January 7, 1971. According to plaintiff‘s witnesses, that policy was issued based on the new application and on the information in the “Arkansas file” with no additional investigation. Plaintiff‘s witnesses also testified, however, that if Henderson, the original agent, had made a notation on the file that Sevier had been stopped in Oregon for drinking they would have made a further investigation and that if it had appeared that Sevier had been convicted of DUIL the new policy would not have been issued and the original policy would have been rescinded. A witness for plaintiff also testified that if the application had been made as one for a new policy in Oregon a
Defendants offered the testimony of a witness with experience in underwriting to the effect that the underwriting practice of at least some other insurance companies doing business in Oregon would be, upon receiving a file from Arkansas in connection with a “re-application” for insurance under the circumstances of this case, to request an Oregon motor vehicle check and that this would have been done if it had appeared in the file from Arkansas that the insured had been stopped by the police in Oregon for drinking and driving and had been given a test.
3. Accident: termination and rescission of policy.
On March 15, 1971, Sevier was involved in the accident in which Mr. Sutton was killed and his wife injured. Within approximately two weeks after the accident, plaintiff‘s Oregon underwriting department superintendent learned from its claims department that there was a “total loss,” with “drinking involved,” and of the previous DUIL conviction. Sevier signed a statement on May 3, 1971, admitting that DUIL conviction. On May 7, 1971, plaintiff called the Oregon Department of Motor Vehicles by telephone to confirm that conviction.
On May 17, 1971, plaintiff mailed to Sevier a “Notice of Intent Not to Renew” the policy on July 7, 1971, the date when the policy normally would have been “automatically renewed.” In that notice the “box” was “checked” for “Notice of Intent Not to Renew” and the “box” for “Notice of Cancellation” was not “checked.” The underwriter responsible for that notice was aware of the difference between termination and
On July 7, 1971, more than three months after learning in late March from its claims department of Sevier‘s DUIL conviction in 1969 and more than one year after its agent Henderson was informed of that fact by Sevier, plaintiff sent a letter to Sevier enclosing a check for the amount of all premiums paid by him in both Arkansas and Oregon and rescinding the policy. The tender of that check was refused by Sevier.
On August 12, 1971, plaintiff paid to Ford Motor Credit Corporation the sum of $1,680.68 in payment for the “total loss” of Sevier‘s automobile, in accordance with a “loss payable to lienholder” clause of the policy and apparently without giving Ford a 10-day notice of cancellation or termination, as provided by that clause.
On August 10, 1971, plaintiff filed a complaint in this action, alleging that the policy was issued in reliance upon misrepresentations by Sevier and seeking a declaratory judgment that it had “validly rescinded” the policy and that plaintiff had no liability under it for the death of Mr. Sutton or the injury to his wife. Subsequently, plaintiff filed an amended complaint to the same effect. Defendants’ answer to that complaint alleges, as an affirmative defense, that “plaintiff was negligent in failing to investigate the insured and therefore is estopped to rescind the policy because of alleged misrepresentations.”
The findings and decision by the trial court and contentions of appellant.
The trial court found that at the time of his original application the insured told plaintiff‘s agent in Arkansas that “he had lived in Oregon the previous nine years“; that “he had been charged for driving and drinking and had taken some type of test“; and that he
Based upon these findings the trial court concluded that “plaintiff had a duty to the public to make a reasonable investigation of the insurability of * * * Sevier within a reasonable time after the issuance of the policy,” and that its failure “to make such reasonable investigation” prohibits it “from rescinding the Sevier policy as to the claims of” the other defendants. As authority for that holding the trial court cited the decision by the California Supreme Court in Barrera v. State Farm Mutual Automobile Ins. Co., 71 Cal 2d 659, 79 Cal Rptr 106, 456 P2d 674 (1969). In Barrera it was held, under somewhat similar facts, that an automobile insurance company has a duty to the public to make a reasonable investigation within a reasonable time after the issuance of a policy and that it cannot thereafter rescind a policy so as to deny its coverage to the claim of an injured person.
Plaintiff‘s primary contention on this appeal is that in Oregon the rights of an injured person are no greater than the rights of the insured, with the result that the failure of an insurance company to make a motor vehicle check or other investigation of the insured does not take away its right to rescind a policy for false representations by an insured “as to the claims” of an injured person, despite the holding to
Plaintiff also contends, in response to a request by this court for supplemental briefs, that the decision of the trial court in this case cannot properly be affirmed by application of the usual rule of contract law that a party to a contract who has knowledge of facts constituting grounds for rescission must do so promptly or lose the right to rescind. The reason why that rule does not apply in this case, according to the plaintiff, is that the knowledge of its agent that Sevier had been convicted of DUIL was not imputed to it by reason of collusion between Sevier and his agent, in that Sevier knew that the answers contained in the application for the policy were false and participated in the fraud.
An insurance company cannot rescind a policy of automobile insurance when it had knowledge of facts which constituted grounds for rescission and failed to rescind promptly.
The general rules of contract and agency law are well established to the effect that notice to an agent is notice to his principal;2 that a party who has notice of grounds for the rescission of a contract and who elects to rescind it must do so promptly or lose his right to rescind;3 that when a contract has been induced by misrepresentation by one party, so that the other party has an election whether to affirm the contract or to rescind it and return any payments received, one who retains the payments received and acts in a manner inconsistent with an intent to rescind the con-
Consistent with these established rules, it has been held by other courts that an insurance company which has knowledge through one of its agents of the falsity of facts stated in an application for insurance and which nevertheless issues an insurance policy is either “estopped” from rescinding the policy based upon the alleged misrepresentation of such facts or cannot then establish that it acted in reliance upon such misrepresentations, as necessary for the rescission of a contract for misrepresentation.6
Although in such a case there may not be an
In this case plaintiff, through its agent Henderson, acquired knowledge of the fact that Sevier had at least been stopped by the police for drinking and driving and had been given a “balloon” or “breathalyzer” test. Indeed, the trial court found that plaintiff‘s agent had knowledge of the fact that Sevier had been convicted for DUIL. As a corporation, plaintiff could act only through its agents and employees and once it acquired knowledge of that fact through one of its agents or employees plaintiff was chargeable with continued knowledge of that fact, regardless of whether or not its agent Henderson failed to make a written record of that fact or to convey that information to other agents or employees of the plaintiff.
It was conceded by plaintiff‘s underwriters that if they had been informed of that fact they would have either refused to issue the original policy or would have made an investigation of the records of the Oregon Department of Motor Vehicles to confirm that fact.
It was also conceded by plaintiff‘s underwriters that when Sevier, in accordance with instructions by Henderson, applied for a renewal of the policy after returning to Oregon, they did not rely solely upon the answers given by him to plaintiff‘s Medford agent in the written application for renewal of the policy but that they also relied upon the information included in plaintiff‘s file from Arkansas. That plaintiff did not rely solely upon such answers by Sevier in Oregon is
It follows from this testimony, in our opinion, that at the time that both the Arkansas policy and the Oregon “renewal” policy were issued plaintiff had knowledge of facts which constituted sufficient grounds for the rescission of both policies. It also follows, in our opinion, that if plaintiff desired to elect to rescind the Oregon policy it was required to do so promptly, and that in this case plaintiff did not undertake to rescind promptly, but did not do so until July 7, 1971, the date on which the Oregon policy expired by its terms. We hold that it was then too late to do so.
Because we decide this case upon these grounds we need not consider and decide the questions whether plaintiff, as an automobile liability insurance company, had a duty to the public, under the facts and circumstances of this case, to make a reasonable investigation of Sevier before it issued to him a policy of automobile liability insurance and whether the plaintiff was negligent, under the facts and circumstances of this case, in that it failed to make such an investigation.
For the same reasons, we need not decide whether to adopt the rule adopted by the California Supreme
In this case the trial court found that plaintiff insurance company, through its agent Henderson, had been told by Sevier that he had been both arrested and convicted in Oregon for driving while intoxicated; that a check of the Oregon motor vehicle records would have disclosed that in 1969 he had in fact been convicted for such a violation; and that under these facts plaintiff had a duty to investigate the in-
Although we do not necessarily agree with that course of reasoning by the trial court, for reasons previously stated, we agree with its holding that under these facts plaintiff insurance company may not wait for more than one year and until after the accident in which Mr. Sutton was killed and Mrs. Sutton was injured before making any attempt to rescind the policy so as to deny liability to them.
The knowledge of plaintiff‘s agent that Sevier had been convicted of DUIL was imputed to plaintiff for the purposes of this case.
Plaintiff vigorously contends that the knowledge of its agent of Sevier‘s DUIL conviction was not imputed to it because of alleged collusion between its agent and Sevier to withhold knowledge of that fact from it.
Plaintiff‘s claim of collusion is based upon testimony that Sevier was given an opportunity to read the application before signing it and knew that the answers in the application as filled in by plaintiff‘s agent were false and upon the further testimony that, according to Sevier, when he told plaintiff‘s agent of his DUIL conviction the agent said “to Hell with it, maybe they‘ll never find it out.”
The evidence was conflicting on both of these points. Plaintiff‘s agent denied that he said “to Hell with it, maybe they‘ll never find it out.” He also testified that he was not sure whether or not Sevier read the application before signing it. At the time of his deposition Sevier said that he knew that the agent wrote down false answers in the application before he signed it, but on trial he testified that he did not know
Because we review this case de novo, as in a suit in equity to rescind a contract, the failure of the trial court to make such findings is not fatal. It may also be doubtful whether such evidence was sufficient to support a finding of collusion.8 Regardless of such facts, however, we hold that for the purposes of this case the knowledge of plaintiff‘s agent that Sevier had been convicted of DUIL was imputed to the plaintiff.
There may be good reasons why, in litigation between an insurance company and an insured who has acted in collusion with an agent of the company in concealing facts from it, there should be an exception to the general rule that knowledge to the agent of the company is to be imputed to it. The reason for that result in such cases is not so much that the knowledge of the agent was not imputed to the principal, but that a participant in a fraud should not be permitted to profit from his own fraud. Such reasons, however, have no proper application in litigation between an automobile insurance company and an innocent person who was injured by the negligence of the insured. The cases cited by plaintiff, all from other jurisdictions, either involve litigation between the insurer and insured or do not discuss the question whether a different rule should apply in cases involving innocent third parties.9
The rule that knowledge of an agent is to be imputed to his principal, regardless of actual knowl-
This public policy in automobile insurance cases is also consistent with the terms of
“Insurance agent is agent of insurer. Any person who solicits or procures an application for insurance shall in all matters relating to such application for insurance and the policy issued in consequence thereof be regarded as the agent of the insurer issuing the policy and not the agent of the insured. Any provisions in the application and policy to the contrary are invalid and of no effect whatever.”10
A rule in automobile insurance cases under which knowledge of an agent is imputed to his principal in cases involving third persons injured in automobile accidents, despite possible collusion between the insured and the insurance agent, would not encourage fraud, as suggested by the plaintiff. On the contrary, it provides no inducement for the insured to enter
Such a rule is also consistent with the strong reasons of public policy embodied in the Oregon Financial Responsibility Law,
“This court and the Oregon Legislature have recognized this interest of an injured party. In In re Vilas’ Estate, 166 Or 115, 135, 110 P2d 940 (1941), this court stated:
“‘The public policy of this state is to protect as far as possible those injured through the carelessness or negligence of motor vehicle operators who make use of its highways. * * *’
“* * *
“These legislative declarations reflect a governmental policy in favor of protecting the innocent victims of vehicular accidents even though the tort-feasor may have been totally indifferent to the rights of others.”
To the same effect, see Bailey v. Universal Underwriters Ins., 258 Or 201, 474 P2d 746, 482 P2d 158 (1971).
For these reasons we hold that when Sevier told plaintiff‘s agent of his DUIL conviction, knowledge of that fact was imputed to the plaintiff insurance company for the purposes of this case.
As previously stated, plaintiff also contends that in Oregon the right of an injured third person under a policy of automobile liability insurance can be no greater than those of the insured, citing Bonney v. Jones, 249 Or 578, 580, 439 P2d 881 (1968); Oregon Farm Bureau v. Safeco, 249 Or 449, 453, 438 P2d 1018 (1968); and Allegretto v. Oregon Auto. Ins. Co., 140 Or 538, 544, 13 P2d 647 (1932). Those cases involved the failure of insureds to give prompt notice to insurance companies after accidents so as to permit the insurers, as quickly as possible, to investigate the accidents and discover all relevant facts and so as to prevent prejudice to insurance companies resulting from delays in undertaking such investigations. None of those cases involved the rescission of such an insurance policy for misrepresentation in an application for insurance or the failure of such an insurance company to rescind promptly after receiving knowledge of facts constituting grounds for rescission—a problem involving quite different considerations, for reasons previously stated.
Plaintiff also assigns as error the overruling of its demurrer to defendants’ affirmative defense alleging that “plaintiff was negligent in failing to investigate the insured and therefore is estopped to rescind the policy because of alleged misrepresentations * * *.” Plaintiff contends that this defense “was not proper pleading of estoppel because it lacked many of the elements of estoppel.” We might agree that defendants’ pleading was not sufficient as a pleading of estoppel, as such. It was a sufficient pleading in this case, however, because it alleged, among other facts, that on May 29, 1970, Sevier informed plaintiff‘s agent Henderson that he had been convicted of DUIL; that a period of nine and one-half months elapsed between that date and the date of the accident
*
Plaintiff says that “the sole issue in this case is whether or not the judgment can be sustained upon the basis of the law as expressed by the California court in Barrera * * *.” We believe, however, that the basis for our decision in this case is not only within the scope of the pleadings, for reasons just stated, but that it is within the theory on which this case was tried and argued on appeal. It is true that the emphasis of defendants’ contentions has been upon the theory of Barrera. Nevertheless, defendants also pleaded and contended in their brief on appeal that plaintiff had “waived” its right to rescind and was not entitled to wait until July 7, 1971, to rescind its policy, particularly after first sending notice that the policy would be terminated on July 7, 1971, the expiration date (subject to renewal). In support of that contention, defendants cited cases in support of the proposition that “any delay in rescinding a contract is evidence of ones intent to ratify the same.”
We are reluctant to reverse a trial court on grounds or theories other than those on which a case is tried and decided unless the parties have been afforded an opportunity to submit further briefs or argument. The considerations are different in cases in which we affirm a trial court. In such cases, when the trial court arrived at a correct result, but on grounds different than those which, in our opinion, are more proper as the basis for such a result, we believe that it is not improper to affirm the trial court; provided, of course, that the pleadings are sufficiently broad and there is sufficient evidence in the record, as in this case.
We believe that this is particularly proper in
Moreover, in this case both parties were afforded an opportunity to submit supplemental briefs and reply briefs upon the questions whether plaintiff was bound from rescinding the policy because of delay in doing so promptly after receiving knowledge of facts providing grounds for rescission, including the question whether knowledge of such facts by its agent was imputable to the plaintiff.
Plaintiff also assigns as error the failure of the trial court to make findings of fact upon the materiality of the misrepresentations and reliance by plaintiff upon them, as requested by it at the time of trial. Plaintiff concedes, however, that if such findings are necessary such findings may be made by this court in reviewing this case de novo.② The same is true of
Finally, plaintiff assigns as error the admission of testimony by a witness offered by defendants and who testified concerning the underwriting practices of some other insurance companies in Oregon. We believe that the qualifications of that witness were such that the trial court did not abuse its discretion in permitting him to testify. See Wulff v. Sprouse-Reitz Co., Inc., 262 Or 293, 305, 498 P2d 766 (1972).③ Moreover, this was not a jury trial and there was ample other evidence to support the judgment in favor of the defendants in this case. Cf. Thomas v. Howser, 262 Or 351, 357, 497 P2d 1163 (1972).
For all of the reasons stated above, and finding no error, we affirm the judgment of the trial court.
O‘CONNELL, C. J., dissenting.
The majority holds that an injured third party may recover on a policy of insurance even though the insured would not be allowed to enforce the policy. In so doing, it introduces much confusion into the law of agency and, although purporting to avoid the question, effectively adopts the reasoning and effect of Barrera v. State Farm Mutual Automobile Insurance Co., 71 Cal2d 659, 79 Cal Rptr 106, 456 P2d 674 (1969), which rejects the fundamental principles of the law of contract. The opinion of the majority is not supported either by logic or any of our prior cases on the subject. I dissent.
“The rule that knowledge of an agent is to be imputed to his principal, regardless of actual knowledge by the principal, is a rule based upon considerations of public policy to the effect that one who selects an agent and delegates authority to him should incur the risks of the agent‘s infidelity or want of diligence rather than innocent third persons. See 3 Merrill on Notice §§ 1204, 1268 at 132-34, 252 (1952). Cf. Restatement (Second) of Agency § 282(2) (a). Those reasons of public policy are not present in cases involving litigation between a principal and a third party who has acted in collusion with the agent. When, however, as in this case, the injured party is one who did not act in collusion with the agent, those same reasons of public policy are present.”
The point the majority fails to note is that the rights of one injured through the negligence of the insured are derivative of the rights of the insured.① The third party, however innocent, has no right to recover from the insurer unless there is a duty to pay the losses of the insured growing out of a valid contract of insurance or a duty to the public “at large.” Since the majority does not deem it necessary to follow Barrera in recognizing such a duty to the public, it must explain how the third party may recover on a contract of insurance to which it is not a party or an intended beneficiary and which is rendered voidable as to the insured through his misrepresentations of a material fact. This the majority does not do.
It is clear that plaintiff is entitled to rescind
“* * * The corporation is affected or charged with knowledge of all material facts of which its officer or agent receives notice or acquires knowledge while acting in the course of his employment and within the scope of his authority, even though the officer or agent does not in fact communicate his knowledge to the corporation through its other officers or agents. * * *” Woodtek, Inc. v. Musulin, 263 Or 644, 650, 503 P2d 677 (1972).⑤
This general rule is subject to an exception, however, which is applicable to the facts of this case. The knowledge of notice of the agent is not imputed to the principal when the person knows the agent is
It is also clear that plaintiff has not waived its right to rescind. The notice of cancellation or nonrenewal which was sent to Sevier soon after the discovery of his misrepresentations was necessary to prevent the automatic renewal of the policy. At the same time, the question of rescission was submitted to plaintiff‘s legal department for determination of its rights. These acts, taken together, indicate nothing more than the decision to sever its relations with its insured as soon as legally possible, not an intent to retain the benefits of the contract while shunning its obligations.
Nor is the payment of the property damage claim to the holder of a lien upon Sevier‘s automobile a basis for concluding that plaintiff waived its right to rescind the contract of liability insurance. First, this payment was clearly a detriment to plaintiff, not the retention of a benefit inconsistent with rescission. Secondly, a rider on the policy requires plaintiff to give the lienholder notice of cancellation ten days before cancellation can be effective. Thus, plaintiff was bound to satisfy the lienholder‘s property damage claim, notwithstanding the misrepresentations of the insured. The fact, alluded to by the majority, that no separate consideration was paid for this provision of
Because the policy was validly rescinded as to Sevier, the fact that the innocent third party played no part in Sevier‘s misrepresentations and knew nothing of the collusion with Henderson, plaintiff‘s agent, is irrelevant. The holding of the majority is supportable, then, only if plaintiff is obligated to compensate defendant Sutton for her losses because of a duty not directly referable to the legally unenforceable contract with Sevier. The majority does not enlighten us as to the source or scope of this duty.
It is, perhaps, the majority‘s position that the policy that “one who selects an agent and delegates authority to him should incur the risks of the agent‘s infidelity or want of diligence rather than innocent third persons,” should be extended to protect one in the position of defendant Sutton. The problems with such approach, if intended by the majority, are insurmountable. Defendant Sutton‘s damages were not caused, in any reasonable sense, by the misfeasance of plaintiff‘s agent. She cannot have relied upon the presence of insurance in sharing the road with Sevier, since insurance is not a pre-condition for driving in Oregon. Moreover, even if a theory of causation could be constructed, there is no finding that plaintiff was negligent in hiring or retaining the services of Henderson, nor is there any basis apparent in the record for such a finding. Nor does the majority purport to make a principal strictly liable for the breaches of fiduciary duty of an agent.
I am forced to conclude, therefore, that the ma-
The basic premise of the Barrera decision which defendants urge us to adopt is that the duty of insurance carriers is no longer to be analyzed solely with reference to the contract of insurance and the rules of contract law, but is to rest also upon a non-contractual policy in favor of compensating the innocent victim of the insured‘s negligence. This expansion of the insurer‘s duty to provide protection to non-contracting parties is, in effect, the extension of the principle of strict liability, not unlike that which characterizes the liability of the seller of products. The California court makes this extension by pointing to various factors which, it is argued, justify the imposition of strict liability upon insurers.
First, it is said that the sale of insurance is a “quasi-public” business and that therefore the rights and obligations of the insurer and insured “cannot be determined solely on the basis of rules pertaining to private contracts negotiated by individual parties of relatively equal bargaining strength.” Barrera, supra 456 P2d at 681-682. This seems to combine and confuse two ideas: (1) the idea that a business affected with the public interest owes duties to the public at large, and (2) the principle that adhesion contracts are to be treated differently than other contractual rela-
The Barrera opinion attempts to find in the California financial responsibility law the policy to compensate the innocent victims of traffic accidents.② Conceding that financial responsibility statutes are designed to protect such innocent victims, the question is to what extent. Such statutes do not, in most jurisdictions, require all drivers to have insurance.③
It is my opinion that the Barrera decision
To my knowledge, none of the statutes impose upon the insurer the duty to investigate applicants. In those limited situations in which the insurer is not permitted to rescind, the defense is explicitly abolished (
Defendants contend that a duty to investigate might also be predicated upon what is described as the “analogous” duty of insurers to prove that they have acted diligently and with good faith before they may invoke their insured‘s non-cooperation as a defense to liability under a policy of insurance. The case of Bailey v. Universal Underwriters, 258 Or 201, 474 P2d 746, 482 P2d 158 (1971) is relied upon to support this argument. The duty to exercise diligence and good faith to secure the cooperation of the insured extending to determine coverage under an omnibus clause is not, however, analogous to the duty imposed upon insurers in Barrera. Rather, it is a duty arising from the contract and running directly to the insured. We recognized in Bailey, that “[t]he obligations under a
I conclude, therefore, that there is in general no common law duty on insurers to investigate the representations of their insureds. Nor can I find grounds for the creation of such a duty in Oregon‘s financial responsibility laws.⑥
“The liability of an insurance carrier with respect to the insurance policy required by this chapter to prove future responsibility shall become absolute whenever injury or damage covered by the vehicle liability policy occurs. The policy may not be canceled or annulled as to such liability by any agreement between the insurance carrier and the in-
sured after the occurrence of the injury or damage. No statement made by the insured or on his behalf and in violation of the policy shall defeat or void the policy. The provisions of this section are not applicable to policies of vehicle liability insurance other than those required in connection with proof of future responsibility.” (Emphasis added.)⑦
Thus, to follow the Barrera decision would be to modify the structure of insurance regulation and the relationship of the parties beyond that intended by the legislature. Therefore, I would hold that plaintiff was entitled to rescind the policy and is not liable to either defendant.
DENECKE and HOLMAN, JJ. join in this dissent.
DENECKE, J., dissenting.
I join in the dissent of the Chief Justice. I write only to summarize what I believe is the basic controversy and some of the reasons supporting the dissent.
Both the majority and the dissent assume for the purposes of their legal differences that Sevier and Henderson colluded. I probably would not so find on a de novo hearing but I will make that same assumption in order to take a position in the principal controversy.
I join the dissent because of what I believe are the logical implications of the majority opinion which I am unwilling to accept.
The majority holds that an injured third party can recover against the liability insurer although the insurer has no duty to the insured under its insurance contract. Previously we have always held to the contrary. For examples, Allegretto v. Ore. Auto Ins. Co., 140 Or 538, 544, 13 P2d 647 (1932); Bonney v. Jones, 249 Or 578, 580, 439 P2d 881 (1968).
In State Farm Ins. v. Farmers Ins. Exch., 238 Or 285, 387 P2d 825, 393 P2d 768 (1964) and Bailey v. Universal Underwriters Ins., 258 Or 201, 474 P2d 746, 482 P2d 158 (1971) we expressed this policy. In those cases however, we did not hold the injured third party could recover on an insurance policy although the insurer owed no duty of indemnity to its insured.
This same public policy just as logically can be invoked to hold that an injured third party can recover although the insurer owes no duty of indemnity to the insured because the insured has failed to perform any of the expressed or implied duties the insured has in a liability insurance contract. Included in these are such duties as giving notice of an accident, cooperating in the defense, etc.
The legislatures of Oregon and other states have enacted legislation depriving insurers of certain policy defenses when insurers issue policies as proof of financial responsibility. The legislatures expressly exempted other insurance policies from this legislation.
Another facet in the present case evidences that
Notes
Cf. Bunn v. Monarch Life Insurance, 257 Or 409, 416-17, 478 P2d 363 (1971), overruling Comer v. World Insurance Co., 212 Or 105, 318 P2d 916 (1957), in which we said, although in a different context, that:
“*** The false answer is made by the insurer‘s agent and on the basis of the well-established principle of agency, the insurer should be bound by the acts of its agent. * * *”
We also said in Farnsworth v. Feller, 256 Or 56, 62, 471 P2d 792 (1970), again in a different context, that negligence may be a defense in a suit for rescission.
To the same effect, see State Farm Mutual Automobile Ins. Co. v. Wood, 25 Utah 2d 427, 483 P2d 892, 893 (1971). Cf. Bernstein v. Nationwide Mutual Insurance Company, 458 F2d 506 (4th Cir 1972); Fireman‘s Fund Insurance Company v. Knutsen, 132 Vt 383, 324 A2d 223, 229 (1974); Government Employees Insurance Company v. Chavis, 254 SC 507, 176 SE2d 131, 137 (1970); Mayflower Insurance Exchange v. Gilmont, 280 F2d 13, 16 (9th Cir 1960); and Allstate Ins. Co. v. Sullam, 76 Misc 2d 87, 349 NYS2d 550, 558 (1973).
See also Couch on Insurance 2d 11-12, § 35:41 (1974 Supp); Comment: Reasonable Investigations and the Financial Responsibility Law—Protecting the Innocent Third Party, 3 Loyola U L Rev 169 (1970); Note, 47 Tulane L Rev 199 (1972). Cf. Bailey v. Universal Underwriters Ins., 258 Or 201, 223, 474 P2d 746, 482 P2d 158 (1971).
“* * * The decisions which interpret [such statutes] as imposing upon the company notice with respect to all pertinent knowledge possessed by the solicitor or negotiator during the bargaining for the policy * * * are the sounder.” See also Merrill, supra, 264, § 1290.