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Ward v. Durham Life Insurance Co.5/31/1988
Plaintiff filed this action to recover benefits under her deceased husband's life insurance policy which was issued by defendant. Defendant denied coverage on the basis of misrepresentations in the application for insurance and moved for summary judgment. From the trial court's order granting summary judgment, plaintiff appeals. We reverse.
On 15 October 1985, defendant issued a life insurance policy to plaintiff's husband, Vernon Ward. Plaintiff, the beneficiary under the policy, sought to recover its proceeds after her husband was killed in an automobile accident on 26 January 1986. Defendant refused to pay the benefits on the grounds that there were material misrepresentations made in the application for insurance.
On 12 July 1986, plaintiff filed suit to collect the insurance proceeds. Defendant answered alleging that the insurance contract was null and void because of the misrepresentations and moved for summary judgment. Defendant filed supporting affidavits which stated that Mr. Ward had failed to report his past treatment for high blood pressure and a prior conviction for driving under the influence in his application and that his application would not have been approved had this information been included.
Plaintiff submitted an opposing affidavit which stated the following:
On 5 October 1985, plaintiff and her husband agreed to apply for a life insurance policy through Brenda Ward, Mr. Ward's first cousin. Ms. Ward advised them on that day that she was an agent for defendant. Ms. Ward asked plaintiff and her husband questions from an application for insurance; and, after they answered the questions orally, she recorded their responses on the application herself. When they reached question 30(d), Ms. Ward asked Mr. Ward if he had ever been convicted of driving under the influence . Plaintiff and her husband informed her that he had been so convicted in October, 1982. Ms. Ward responded that since the conviction was more than two years old it would not prevent him from obtaining insurance with her company. When they reached question 32(d), she asked Mr. Ward if he had ever been treated for high blood pressure. Mr. Ward informed her that he had been treated for high blood pressure in 1983, but had not had any problems since that time. Ms. Ward responded that since the treatment had occurred more than two years ago it would be all right and would not prevent Mr. Ward from obtaining insurance with her company. After she completed marking the application, Mr. Ward signed it and paid the premium requested.
After plaintiff filed her affidavit, defendant moved to strike several portions of it. The trial court granted this motion and subsequently granted defendant's motion for summary judgment. From this judgment, plaintiff appeals.
Plaintiff argues that the trial court erred in granting defendant's motion to strike the following portions of her affidavit:
That as to question 30(d) and (k), my husband and I advised Ms. Ward that he had in fact been convicted of driving under the influence in the District Court of Beaufort County in October of 1982 and that he had obtained a limited driving privilege.
My husband advised her that he had been treated by Dr. Boyette for high blood pressure in 1983. Then she asked whether or not this had occurred within two years. My husband and I then conferred and advised her that it had been more than two years since he had been treated by
Dr. Boyette and he had not had any problems since that time.
That as a result of the responses that were given by my husband and I to Ms. Brenda Ward, Durham Life Insurance Company had notice of my h
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