Opinion
April 8, 1959 —
May 5, 1959.
APPEAL from a judgment of the circuit court for Eau Claire county: CLARENCE E. RINEHARD, Circuit Judge. Affirmed.
For the appellant there were briefs by Riley Wahl of Eau Claire, and oral argument by Victor T. Wahl.
For the respondent there was a brief by Ramsdell, King, Carroll Barland of Eau Claire, and oral argument by George Y. King.
Plaintiff brought this action to recover disability benefits alleged to be due him upon a policy of insurance written by defendant. On motion of defendant the trial court granted summary judgment dismissing the complaint. Plaintiff appeals.
Mr. De Bonville, the plaintiff, was an officer and employee of National Pressure Cooker Company which carried a group insurance policy in defendant insurance company providing for benefits for the cooker company's employees in various contingencies. The terms of the group policy applicable to Mr. De Bonville and to the situation now presented provided that:
"Permanent Total Disability Benefits.
"If any employee shall furnish the company with due proof that while insured under the group life policy and before having attained the age of sixty, he has become wholly disabled by bodily injuries or disease, and will be permanently, continuously, and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, the company will waive further payment of premium as to such employee and pay in full settlement of all obligations to him under the group life policy the amount of insurance in force thereunder upon his life at the time of the receipt of due proofs of such disability, in a fixed number of instalments, the first instalment to be paid immediately upon receipt of due proofs of such disability."
"Conversion Privilege.
"Any employee of the employer covered under this group policy shall, in case of the termination of employment for any reason whatsoever, be entitled to have issued to him by the company without further evidence of insurability, and upon application made to the company within thirty-one days after such termination and upon the payment of the premium applicable to the class of risks to which he belongs and to the form and amount of the policy at his then attained age, a policy of life insurance, in any one of the forms customarily issued by the company, except term insurance, with permanent total disability benefit equivalent to that provided hereunder, in an amount equal to the amount of the employee's protection under this policy at the time of the termination of his employment."
In 1949 De Bonville's position was changed to that of consultant to the National Pressure Cooker Company under a contract of employment at his former rate of pay for five years from May 1, 1949, with consulting duties only when called upon for such services but without regular fixed hours. On November 6, 1951, he suffered a heart attack which disabled him at least for a time. The duration of disability is in dispute. De Bonville was born November 20, 1896; accordingly, his age at the onset of his illness was slightly less than fifty-five years.
On or about May 1, 1952, De Bonville made claim for disability benefits under the Travelers' group policy. In support of the claim De Bonville's doctor, Dr. P. J. Finucane, supplied to defendant a report that in his opinion De Bonville had been totally disabled and would be so for an indeterminate period. On June 9, 1952, De Bonville consulted Dr. H. H. Shapiro, a heart specialist in Madison. Dr. Shapiro reported, "From my findings at that time, I cannot say that he [De Bonville] is totally disabled." De Bonville did not give this report to the Insurance Company and the company did not obtain it until July 3, 1953. On April 3, 1953, Dr. Finucane again reported that his patient was totally disabled then and had been so since November 6, 1951, and its duration would be indeterminate. The Insurance Company then asked plaintiff to have an examination by Dr. Hilker of Eau Claire, but plaintiff did not comply. Because the Insurance Company considered De Bonville's proof of permanent and total disability to be insufficient it denied his claim.
On or about October 1, 1953, De Bonville took employment as the salaried general manager of Aloa Corporation. On February 16, 1954, De Bonville suffered another heart attack and has not worked thereafter, though he was retained on Aloa's pay roll till September, 1954. Not long after the heart attack of February 16, 1954, De Bonville told the Travelers' insurance agent that he wanted to renew his application for total disability. The agent told him that he could not apply again for six months after the February attack. There is no such restriction in the policy. De Bonville did not make any further application.
By his five-year contract for consulting services with National Pressure Cooker Company De Bonville remained in that company's employment to May 31, 1954.
On June 8, 1954, which was within the thirty-one days limited for him to do so after the termination of his National Pressure Cooker Company's employment, De Bonville exercised his right to convert his group insurance. In so doing he applied for $5,000 ordinary life insurance, premiums payable semiannually. He declined expressly the privilege of including in the converted policy disability benefits similar to the provision contained in his group insurance at the premium applicable to the form and amount of the policy for his age.
His application for conversion contains this agreement:
"C. That by acceptance of any contract issued on this application I hereby relinquish all rights to privileges and benefits under group life policy No. G-4806 insuring my life under cert. No. 822 as an employee of National Presto Industries, Inc., my active employment with such employer having ceased on June 1, 1954."
The policy of his selection was issued to him.
De Bonville brings this action to recover total disability benefits which he alleges are due him under his group policy or under his converted, ordinary life, policy reformed to include disability benefits.
The foregoing facts have been set forth in affidavit form, by defendant to support its motion for a summary judgment, and by plaintiff to oppose such motion.
The power of the courts under the summary-judgment statute (sec. 270.635) is drastic and should be applied only when it is perfectly plain that there is no substantial issue to be tried. Ryan v. Berger (1949), 256 Wis. 281, 40 N.W.2d 501. Summary judgment should be granted only when there is no substantial issue of fact or of permissible inference from undisputed facts to be tried. Braun v. Jewett (1957), 1 Wis.2d 531, 539, 85 N.W.2d 364. But disputed issues of fact which are immaterial to the questions of law presented do not afford a basis for denying the application for summary judgment. Carney-Rutter Agency v. Central Office Buildings (1953), 263 Wis. 244, 248, 57 N.W.2d 348.
The defendant Insurance Company places its principal reliance upon the undisputed fact that De Bonville's application to convert his group policy into an ordinary life policy contained a surrender of all his rights and privileges under the group policy.
We consider that if the surrender of his accrued rights be so interpreted their surrender is without consideration and is void. The conditions upon which a converted policy must be issued are set forth in the foregoing statement of facts. All these conditions were met by De Bonville when he applied to exercise his conversion privilege. Nowhere among those conditions appears a requirement that De Bonville or any other employee, as the price of obtaining a policy by conversion, must give up the protection which had already accrued against losses or risks alleged to have been already incurred. Without a surrender of such existing protection against risks which had already attached or losses incurred De Bonville had met all the specified conditions of the group policy and was absolutely entitled to the converted policy of his own choice. The additional requirement of giving up a vested right was imposed upon him without consideration and in that respect his agreement to relinquish this right was void.
That conclusion, however, does no more than to restore to De Bonville the original protection of his group policy subject, of course, to that policy's terms. To be entitled to total disability benefits a condition precedent requires the policyholder to ". . . furnish the company with due proof that . . . he has become wholly disabled, . . . and will be permanently, continuously, and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, . . ."
Plaintiff's heart attack occurred on November 6, 1951. About May 1, 1952, he filed a claim for total permanent disability, and as proof gave the Insurance Company a statement so certifying by his attending physician, Dr. Finucane. De Bonville informed the Insurance Company that he had also consulted a heart specialist but plaintiff refused or neglected to give the specialist's information to the company, though it requested him to do so. The Travelers Insurance Company did not obtain that report until more than a year later and then it appeared that this doctor had reported that, when he examined De Bonville, the doctor could not find him to be totally disabled.
Under other circumstances the conflicting reports of the medical men might produce an issue of fact requiring trial. But we have here the undisputed fact that about October 1, 1953, plaintiff, for a salary, became general manager of Aloa Corporation, retaining this position for several months. Since his claim for disability benefits depended on proof of his physical inability for life to engage in any occupation or employment for wage or profit the plaintiff did not and could not furnish the company with the proof required, in so far as the claim was made for his disability due to the heart attack of November 6, 1951.
After the attack of February 16, 1954, De Bonville contemplated a new, or renewed, application for total disability benefits but his affidavits show that the Insurance Company's agent told him that he could not apply till six months had passed from the date of that attack. Therefore plaintiff says, he did not complete the claim. The group policy has no such restriction and the policy provides that an agent such as this has no authority to modify its terms. Even if the agent's representation should be given effect it would do no more than to postpone the time when the claim might be filed. It would not waive the requirement of due proof when such time came. But that time came and no renewed claim was made or has been made. Without presenting a claim, with proof of disability, no material issue of fact is presented to enable plaintiff to prevail on that score. We conclude that, though his rights continued under his group policy, the record presents no issue of fact for trial pertaining to a claim for group-policy benefit.
De Bonville submits that the conversion policy must be reformed so as to include in it benefits for permanent total disability as those contained in the group policy. The record shows without controversy that De Bonville was offered a policy containing such benefits at the premium rate written for such insurance. He declined the offer. He chose another policy and has continued to pay premiums upon it. No mutual mistake has been shown which calls for reformation. It is alteration he asks for rather than reformation. No issue of fact for trial is presented in plaintiff's demand for reformation.
We conclude that defendant's motion for summary judgment was correctly granted and the trial court's judgment must be affirmed.
By the Court. — Judgment affirmed.
The following opinion was filed June 26, 1959:
The brief in support of the plaintiff's motion for rehearing asserts that our original opinion was grounded on a material mistake of fact. The original opinion stated that (p. 262), "no renewed claim was made or has been made" to the defendant insurance company after the second heart attack of February 16, 1954. It is this statement which is claimed to be erroneous.
This contention has necessitated that we review the record before the trial court on the motion for summary judgment as to this particular point.
We start with the pleadings. The complaint did not separate the two heart attacks, or state the date of occurrence of either, but merely alleged that the plaintiff became wholly disabled by bodily disease prior to or on June 1, 1954. This was followed by this allegation:
"That plaintiff did prior to or on June 1, 1954, furnish said defendant with due proof before having attained the age of sixty that he had become wholly disabled by bodily disease and that he would be permanently, continuously, and wholly prevented thereby for life from engaging in any occupation or employment for wages or profit."
The answer of the defendant denied "that plaintiff on or before June 1, 1954, furnished defendant with any proof of total permanent disability." We interpret such denial to mean that the plaintiff's allegation, that proofs of claim were filed with the defendant after June 1, 1954, which was subsequent to the second heart attack, is not disputed, but what is denied is the sufficiency of the proofs filed to establish permanent disability.
The plaintiff's affidavit in opposition to the defendant's motion for summary judgment states that the plaintiff did renew his application for benefits following the lapse of the six-month period that defendant's agent had advised was necessary before the second application for benefits could be filed. The affidavits filed by the plaintiff presented no facts on the issue raised by the pleadings that the proofs filed with the company of permanent disability were insufficient.
It may well be that plaintiff still may have the right to now file sufficient proofs of such permanent disability and commence a new action to collect the benefits due. We express no opinion with respect to this.
The motion for rehearing is denied.