Summary
defaulting debtor waived right to assert right in payments allegedly misapplied to debt where, after notice of alleged misapplication, debtor took no action
Summary of this case from Transamerica Com. Finance v. Union BankOpinion
Civ. 679.
December 17, 1975.
Appeal from the Circuit Court, Conecuh County, Robert E. Lee Key, J.
William D. Melton, Evergreen, for appellant.
Upon cancellation of a policy by the insured, he is entitled to a repayment of the unearned premiums. Philadelphia Fire Ins. Co. v. Board of Education, 131 Okl. 39, 267 P. 639 (1928); Commercial Credit Corp. v. Standard Marine Ins. Co., Fla.App., 221 So.2d 232 (1969); Volume 6A, Appleman on Insurance, § 4230 (2d Ed.) A beneficiary has no such interest in a policy as will enable him to recover premiums paid. Upon rescission of the contract by the parties, all rights to the premiums paid by the insured are clearly vested in him. Slocum v. Northwestern National Life Ins. Co., 135 Wis. 288, 115 N.W. 796 (1908). A premium return must be made to the insured even though the insured is a conditional buyer and the finance company has the rights of an owner. 17 Couch on Insurance, § 67:234 (2d Ed.) Where conditional vendee retains a pro-rata insurance premium of conditional vendor and fails to remit to insurer, such conditional vendee is guilty of negligence. Timmerman Ins. Agency v. Miller, 285 Ala. 82, 229 So.2d 475 (1970).
Howell, Johnston, Langford, Finkbohner Lawler, Mobile, and Edwin C. Page, Jr., Evergreen, for appellee.
Where a counterclaim is made against a creditor claiming damages for negligent failure to pay the premiums due on a policy of disability insurance which the alleged insured has himself purposely cancelled, and has full knowledge that the disability premiums have been refunded and the disposition made of the refund recovery will be denied. Commercial Credit Corporation v. Standard Marine Insurance Company, Fla.App., 221 So.2d 232 (1969); Black v. Travelers Insurance Co., 231 Ala. 415, 165 So. 221; Boston Insurance Co. v. Rash, 263 Ala. 201, 82 So.2d 177; St. Paul Fire and Marine Insurance Co. v. Gwin, 27 Ala. App. 586, 177 So. 173, certiorari denied, 235 Ala. 54, 177 So. 235. Motion for a summary judgment in a negligence action is a proper remedy where no negligence exists. Folmar v. Montgomery Fair Co., et al., 293 Ala. 686, 309 So.2d 818; Ray v. Midfield Park Inc., 293 Ala. 609, 308 So.2d 686; Watwood v. Dawson Bridge Co., 293 Ala. 578, 307 So.2d 692. Where a creditor collects a refund of insurance premiums from an insurance company after request for cancellation is made by the insured, and the insured has full knowledge of all the circumstances and that the creditor has credited the refund to indebtedness due by the insured to the creditor and a period of eighteen months has elapsed and the creditor has extended the time of payment of installment payments due the creditor in the interim the debtor-insured is estopped to assert and has waived any claim to the premium refunds as against the creditor. 20 Am.Jur.2d, Sections 29-30; Security State Bank of Great Bend v. Midwest Foundry, Inc., 177 Kan. 151, 277 P.2d 629, 51 A.L.R.2d 882 (1954); Annotation, 51 A.L.R. 906; Mixon v. Whitman, 279 Ala. 249, 184 So.2d 332.
This is an appeal from the Circuit Court of Conecuh County. The issue on this appeal is whether the trial court properly granted plaintiff-appellee's motion for summary judgment denying defendant-appellant's counterclaim.
The facts as revealed by the record are undisputed. Defendant-appellant William Clyde Givens purchased two trucks from a dealer in late 1972 and early 1973. The trucks were purchased under installment contracts, which contracts were then assigned to plaintiff-appellee General Motors Acceptance Corporation. At the time of purchase, Givens also obtained disability insurance with an insurance company, to insure payment on the trucks.
In March or April of 1973, Givens requested through the dealer that the disability insurance be cancelled. This was done, and in April of 1973 Givens was notified by appellee-corporation that it had received the premium refund and applied it to the balance of his account under the contracts. Givens took no action concerning this disposition of the refund until the filing of the counterclaim which is the basis of this appeal.
Givens later defaulted in his payments on the contracts, and was given an extension in order to bring his payments current. After further defaults by Givens, the corporation in November of 1974 filed two actions in detinue against him for the recovery of the two trucks, which suits were later consolidated. Givens filed an answer and counterclaim to both complaints. The counterclaims alleged that the corporation negligently failed to pay the disability insurance premiums, and also claimed that the corporation owed Givens for money had and received.
The corporation moved for summary judgment, which motion was submitted to the trial court on the complaint, answer and counterclaim, the deposition of Givens, and his answers to interrogatories propounded to him by the corporation. Givens submitted no counter-affidavits. Summary judgment was granted, resulting in this appeal.
The only aspect of the summary judgment on which error is predicated here is the trial court's denial of Givens' counterclaim. Able counsel for Givens argues that a genuine issue of fact was presented concerning the alleged negligent failure of the corporation to pay the insurance premium. Additionally, it is contended that the corporation should have remitted the premium refund directly to Givens, the corporation allegedly having no legal right to retain the monies and apply them to the debt owed it by Givens.
We initially note that Rule 56(c) ARCP provides that summary judgment shall be granted if the materials on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
As indicated above, the record shows that there is no dispute as to the facts. It clearly appears that Givens requested cancellation of the disability insurance and was notified of the same. There is no evidence indicating any negligence in this regard on the part of appellee-corporation. There being no evidence of negligence on the part of the corporation, the principle involving summary judgments most applicable in this instance is that where undisputed facts are such as would preclude recovery, the question on motion for summary judgment becomes one of law for determination by the court and a proper matter for disposition by summary judgment. McLaughlin v. McLaughlin, 53 Ala. App. 545, 302 So.2d 233; Greyhound Corp. v. Excess Insurance Co. of America, 5 Cir., 233 F.2d 630.
There being no factual dispute, the only issue remaining to be considered by this court is whether, under the facts of this case, Givens is as a matter of law entitled to receive the insurance premium refund.
Without reaching the propriety of the action taken by the corporation concerning the premium refund, we are of the opinion that Givens cannot recover as a matter of law on his counterclaim. Upon being notified that the corporation had applied the refund to his debt, after Givens had requested the insurance be cancelled, Givens made no protest and took no action whatsoever in that regard for over eighteen months. During that time, the evidence tends to show that he defaulted ten times on his contractual obligation and at least once was given an extension. His silence over so protracted a period of time, his failure to meet his payments, and his acceptance of an extension, all mandate against the conclusion that he now can withdraw from the corporation monies which already have been applied against his outstanding debt.
Assuming hypothetically that Givens was in fact legally entitled to receive the premium refund, we feel that the totality of circumstances in this case indicates that he has effectively waived any right he may once have had to that refund. While waiver is defined as the intentional relinquishment of a right, the intention is ascertained from the external acts manifesting the waiver. An intention to waive a right may be found where one's course of conduct indicates the same or is inconsistent with any other intention. See 28 Am.Jur.2d Estoppel and Waiver §§ 158, 160. We feel that these principles are applicable here, and that Givens is barred by his waiver from successfully asserting his counterclaim.
Additionally, while appellee has cited us no authority in point and we can discover none, we are of the opinion that the instant counterclaim, considering the totality of the circumstances, cannot be sustained as a matter of law even if waiver were not applicable. The monies which Givens seeks to recover by his counterclaim have already been applied against his debt, so that the operative effect of the counterclaim will not be to in any way defeat or diminish plaintiff-appellee's claim against him. As such, the monies having already been applied to his benefit, there is nothing upon which he can predicate his counterclaim. Paradoxically, were Givens to recover the amount he seeks by his counterclaim, i. e., the insurance premium received, he would apparently have to pay it to the corporation on his debt, which debt would be increased by the amount of the refund. The purpose of a counterclaim is to provide affirmative redress rather than meaningless circuity of action.
There being no error in the record, this case is due to be and is affirmed.
Affirmed.
WRIGHT, P. J., and BRADLEY, J., concur.