Opinion
January 9, 1962 —
February 6, 1962.
APPEAL from a judgment of the circuit court for Outagamie county: ANDREW W. PARNELL, Circuit Judge. Affirmed.
For the appellants there was a brief by Melchior Melchior of Appleton, attorneys, and Schlotthauer. Jenswold Reed of Madison of counsel, and oral argument by Robert R. Studt of Madison.
For the respondent Bruce Haas there was a brief and oral argument by Thomas S. Sommers of Milwaukee.
For the respondent General Insurance Company there was a brief by Bradford Gabert of Appleton, and oral argument by Stanley R. Gabert.
Action to determine coverage afforded by an insurance policy.
Once upon a time there were two insurance companies. One, General Casualty Company of America, wrote policies insuring a patron against risks arising out of the operation of motor vehicles. The other, General Insurance Company of America, insured against a variety of other risks. If an applicant for insurance wanted more-extensive coverage than that provided by either one of the companies the two companies had an arrangement whereby they would combine all their coverages in one policy. Such a policy bore the names of both companies and the conditions and provisions of the policy were common to each, except that the risk resulting from operation of the patron's motor cars would be borne by General Casualty and risks resulting from other activities would be borne by General Insurance. On June 30, 1957, General Insurance absorbed General Casualty, taking over Casualty's liabilities and obligations and acquiring its rights. General Casualty Company thereupon dissolved and went out of existence.
On or about November 7, 1957, Herman Haas, a heating and sheet metal contractor, applied to insurance agent Wachholz for insurance protecting him against numerous risks. Wachholz had been an agent for both companies and was presently an agent authorized to issue policies for General Insurance. The policy which Wachholz issued to Haas was in the old form in the names of the two companies and obligating both of them. Haas was not informed that General Casualty no longer existed and that General Insurance was the sole obligor, covering all risks.
Haas elected to pay the premium of $717.72 in instalments, with a down payment of approximately $150 and monthly payments of $95.69 on the 11th of each month for six months. On December 26, 1957, Haas made his down payment and December instalment by check to the order of General Insurance Company. The deferred-payment agreement provided that the instalments should be sent direct to "General America Companies" in St. Louis, Missouri.
Haas was late paying his January instalment and on January 13, 1958, he was notified of the default. On January 17th a notice, called "a final notice of premium due" was sent him by General Insurance Company. Haas responded by payment of the instalment on January 20th. Haas neglected the February payment and a notice of default was sent him on February 12th and a "final notice" on February 17th. He paid that instalment on or about March 14th. By June 2, 1958, he had paid nothing more and on that date General Insurance Company notified him that it declared his entire policy canceled, effective as of 12:01 a.m. on June 14, 1958. This complied with the cancellation procedure specified in the policy. On receipt of this communication Haas delivered to Wachholz's office his check for $95.69, one instalment, on June 13, 1958. Haas had no conversation about the effect of his check with anyone in the office. Wachholz was not present. When Wachholz returned to his office on June 17th he remitted this payment to General Insurance Company. The company applied the payment to the past-due debt but declined to revoke the cancellation or reinstate the policy.
On June 15, 1958, one of Haas' vehicles, driven by Haas' son with Herman Haas' permission, collided with plaintiffs' automobile. Plaintiffs brought this action for their damages against junior Haas, General Casualty, and General Insurance. The two insurance companies answered that Casualty had not existed after June 30, 1957, that since that date General Insurance Company was the sole obligor of the policy, and that the policy had been canceled according to its terms by General Insurance Company on June 14, 1958.
The court first, separately, tried the issue of coverage and rendered judgment dismissing on the merits plaintiffs' complaint and all causes of action stated therein against General Casualty and General Insurance companies. Plaintiffs have appealed from that judgment. Defendant Haas has filed a brief supporting the position taken by appellants Vick.
Additional facts will be referred to in the opinion.
Appellants present two reasons why the attempted cancellation of the policy is ineffective: (1) General Insurance could not cancel the automobile coverage afforded in the policy by General Casualty; and (2) if such coverage could be so canceled, the receipt, acceptance, and application of Haas' payment June 13th upon the contract estops General Insurance from later asserting that the coverage terminated June 14th in accordance with the cancellation notice.
It is a fact that General Casualty had expired before the disputed policy was written. Nevertheless, the successor company, General Insurance Company, issued this policy in the joint names of both companies and did not inform Haas of the previous demise of General Casualty and General Insurance had succeeded to the rights and liabilities of the former.
In our view it is immaterial to the result whether General Casualty Company continued to exist during the times in question or did not. There was only one policy. There was only one premium (though paid in instalments) for protection against all the insured risks. The single policy did not provide any apportionment of the premium among the various coverages afforded by the policy. When Haas defaulted he defaulted on the entire policy. The learned trial judge filed a written decision in which he noted Haas' obligations and his repeated defaults and the successive warnings he received from General Insurance Company culminating in the notice of cancellation, effective more than ten days hence, as the terms of the policy directed. With our own emphasis we quote from the trial court's decision, in which we concur:
"The policy was a combined and a blanket one, binding the insurer or insurers to afford him protection for casualty loss up to certain limits, and bound him to pay the premium on the basis of his agreement. Failure on his part to fulfil his portion of the agreement could and did bring about a cancellation of the insurer's or insurers' obligation. The right to cancel is the right to cancel the entire policy and not only that portion of the coverage to which, as he claims he assumed, each company committed itself. There was a breach-of-premium-payment obligation which gave rise to a right in the insurer on the policy, whoever it might have been, to cancel it."
Having determined that General Insurance could and did cancel the entire policy we reach the estoppel issue.
After Haas received notice of the cancellation dated June 2d, effective June 14, 1958, Haas paid one of the three instalments then delinquent. General Insurance Company accepted the payment and gave credit on the debt. Without more this would not have the effect of revoking the cancellation. And there was nothing more. General Insurance did nothing to lead Haas to believe that the cancellation was thereby revoked. Haas asserts that he did so believe but, if so, that is mere wishful thinking, not induced by any assurances or representations by word or action on the part of the company. The case of Wisconsin Natural Gas Co. v. Employers Mut. Liability Ins. Co. (1953), 263 Wis. 633, 58 N.W.2d 424, cited to us by appellants, is quite different. There the delinquent assured tried unsuccessfully to extend his policy by estoppel after the date set by the cancellation notice. The assured made no payment and we upheld the cancellation. In the opinion we remarked (p. 643):
"There clearly was no coverage by estoppel. Ingbretson could not assume that the policy would be continued indefinitely without some payment on the premium."
Present appellants deduce from that that some payment would have restored coverage. The deduction is unwarranted unless the company represents that some payment would have that effect. In the Natural Gas Case no payment was made. Presently General Insurance never gave to Haas any indication that under any circumstances the announced cancellation would be modified.
We find no estoppel to prevent General Insurance Company from standing on the cancellation of which Haas had already been informed.
By the Court. — Judgment affirmed.