 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Ward v. Durham Life Insurance Co.5/31/1988
--> 316 S.E.2d 256 (1984), relied upon by the majority, are distinguishable in that in those cases there is either a question or no showing as to the insured's knowledge of the contents of the application. There is no evidence that the insured signed the application. Moreover, it is noteworthy that in Thomas-Yelverton, supra, where there was no dispute that insured signed the application after the answers were inserted by the agent, the Court acknowledged Fishblate and its progeny, but rejected the plaintiff-appellant's argument. Accordingly, in this case I do not agree with plaintiff's oral argument that this Court in McCrimmon, supra, misinterpreted Inman, supra.
In the instant case from the uncontradicted evidence, plaintiff would have been uninsurable and rejected for insurance had
the questions been answered truthfully. The rule is, and plaintiff does not dispute, that misrepresentations as to questions affecting insurability are material as a matter of law. Tolbert v. Insurance Co., 236 N.C. 416, 72 S.E.2d 915 (1952).
The sole purpose of the application is to obtain accurate information for underwriting purposes. Without the false statement inserted by the agent, the uninsurable applicant would not have received a policy. Plaintiff has made no showing that her husband was prevented or prohibited from reading the application before he signed. When Mr. Ward signed the application, he adopted the statements and represented that they were true. If Mr. Ward had corrected the false statements, he would not have obtained the insurance; by signing, he benefited from the agent's action. Defendant has tendered the return of the premiums with interest thereon, and in my view owes nothing more.
Furthermore, even under the majority's theory of the case, I do not think the evidence is sufficient to raise an inference that insured was induced not to give a truthful application by statements of the agent. According to plaintiff's affidavit, the agent told plaintiff and her husband that because Mr. Ward's conviction and treatment for high blood pressure had occurred more than two years before the date of the application, "this was all right and would not prevent [Mr. Ward] from obtaining insurance with [defendant]." Although this statement may have led plaintiff and her husband to believe that the omitted information was not especially important, the agent did not expressly state that they were not required to report it. Plaintiff did not aver that the agent told them that the questions only required information from the past two years, nor did she aver that the agent advised or suggested that her husband not include the omitted information in the application.
For the foregoing reasons, I vote to affirm.
|