{ "id": 6136180, "name": "Dollie GILCREAST v. PROVIDENTIAL LIFE INSURANCE COMPANY", "name_abbreviation": "Gilcreast v. Providential Life Insurance", "decision_date": "1985-02-13", "docket_number": "CA 84-148", "first_page": "11", "last_page": "17", "citations": [ { "type": "official", "cite": "14 Ark. App. 11" }, { "type": "parallel", "cite": "683 S.W.2d 942" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "207 Ark. 132", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481830 ], "weight": 6, "year": 1944, "pin_cites": [ { "page": "137" }, { "page": "864" }, { "page": "138" }, { "page": "864" } ], "opinion_index": 0, "case_paths": [ "/ark/207/0132-01" ] }, { "cite": "63 S.W.2d 640", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1933, "opinion_index": 0 }, { "cite": "187 Ark. 1040", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1432069 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/ark/187/1040-01" ] }, { "cite": "229 Ark. 491", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1702693 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/229/0491-01" ] }, { "cite": "263 Ark. 638", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672592 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0638-01" ] }, { "cite": "196 S.W. 792", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1917, "opinion_index": 0 }, { "cite": "129 Ark. 450", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580489 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/ark/129/0450-01" ] }, { "cite": "247 Ark. 514", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1600805 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/247/0514-01" ] }, { "cite": "564 F.Supp. 229", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 136151 ], "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/f-supp/564/0229-01" ] }, { "cite": "208 Ark. 795", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1478776 ], "weight": 2, "year": 1945, "opinion_index": 1, "case_paths": [ "/ark/208/0795-01" ] }, { "cite": "271 F.2d 180", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1965089 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/f2d/271/0180-01" ] }, { "cite": "256 Ark. 986", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726254 ], "weight": 2, "year": 1974, "opinion_index": 1, "case_paths": [ "/ark/256/0986-01" ] }, { "cite": "207 Ark. 132", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481830 ], "weight": 2, "year": 1944, "opinion_index": 1, "case_paths": [ "/ark/207/0132-01" ] }, { "cite": "196 S.W. 792", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1917, "opinion_index": 1 }, { "cite": "129 Ark. 450", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580489 ], "year": 1917, "opinion_index": 1, "case_paths": [ "/ark/129/0450-01" ] }, { "cite": "247 Ark. 514", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1600805 ], "weight": 2, "year": 1969, "opinion_index": 1, "case_paths": [ "/ark/247/0514-01" ] }, { "cite": "564 F.Supp. 229", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 136151 ], "weight": 2, "pin_cites": [ { "page": "235" } ], "opinion_index": 1, "case_paths": [ "/f-supp/564/0229-01" ] } ], "analysis": { "cardinality": 560, "char_count": 11267, "ocr_confidence": 0.823, "pagerank": { "raw": 1.003978425113996e-07, "percentile": 0.5396768305796978 }, "sha256": "e4b7a9327b2cb0f3b078fb78554aea47e6d3af7733980ebdfe0dccc31152533c", "simhash": "1:b26b2785efa0ba56", "word_count": 1878 }, "last_updated": "2023-07-14T21:14:39.423771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, J., agrees.", "Mayfield, J., concurs." ], "parties": [ "Dollie GILCREAST v. PROVIDENTIAL LIFE INSURANCE COMPANY" ], "opinions": [ { "text": "Tom Glaze, Judge.\nThis appeal involves a hospital medical surgical policy issued by appellee to the appellant. Almost three years after the issuance of the policy, appellant was admitted into the hospital and had a brain tumor surgically removed. Appellee denied appellant benefits under her policy claiming that her surgery was the result of a pre-existing condition excluded under the policy. Appellant filed suit against appellee contending she had disclosed information regarding her brain tumor to appellee\u2019s soliciting agent when she applied for the policy. She alleged the agent\u2019s knowledge of her condition was imputed to the appellee, and as a consequence, appellee was obligated under the policy. At trial, the jury returned a verdict for appellee.\nWe must reverse because the trial court incorrectly instructed the jury. The court found that Robert Reynolds was appellee\u2019s soliciting agent and instructed the jury that Reynolds\u2019 knowledge of appellant\u2019s previous condition, if any, could not be imputed to the appellee. Appellant had proffered an instruction stating that such knowledge is imputed. In Jackson v. Prudential Insurance Company of America, 564 F.Supp. 229, 234 (W.D.Ark.1983), the court reviewed a long line of Arkansas cases which hold that the knowledge obtained by an insurance agent, even a soliciting agent, in relation to information requested on the application for insurance is imputed to the insurance company, or that the company is estopped from denying coverage when the agent obtained from the applicant the correct information. See also Reliable Life Insurance Co. v. Elby, 247 Ark. 514, 446 S.W.2d 215 (1969); and Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S.W. 792 (1917). In discussing the foregoing rules, the Supreme Court in a number of the cases cited in Jackson also discussed those exceptions or rules that apply when the insurance company is not bound by information received by its soliciting agent. E.g., Continental Insurance Companies v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978); Holland v. Interstate Fire Insurance Co., 229 Ark. 491, 316 S.W.2d 707 (1958); Business Men\u2019s Assurance Co. v. Selvidge, 187 Ark. 1040, 63 S.W.2d 640 (1933). For example, the Supreme Court in Aetna Life Insurance Co. v. Routon, 207 Ark. 132, 179 S.W.2d 862 (1944), stated the general rule and its exception as follows:\n\u201cWhere the fact is correctly stated by the applicant but a false answer is written into the application by the agent of the company without knowledge or collusion upon the part of the applicant, the company is, according to the generally accepted rule, bound. But on the other hand, if the agent in collusion with the applicant makes the false and fraudulent representations upon which the insurance is obtained, the fraud will vitiate the policy, even though the agent is acting within the apparent scope of his authority.\u201d\nId. at 137, 179 S.W.2d at 864 (quoting 32 C.J. \u00a7 516) (emphasis supplied).\nThe Routon court also announced another settled exception to the general rule that binds the insurer as follows:\n\u201cThe rule denying an insurer the right to assert the falsity of answers to questions contained in an application for insurance, and written into the application by the insurer\u2019s agent after the questions were correctly answered by the applicant, presupposes the continuance of good faith on the part of the insured; this rule is not applicable if there was any taint of fraud on the part of the insured in allowing incorrect answers to stand without objection. ...\u201d\nId. at 138, 179 S.W.2d at 864 (quoting 29 Am. Jur. \u00a7 847) (emphasis supplied).\nIn the instant case, the appellant claims she informed appellee\u2019s agent, Reynolds, that she had prior surgery for a brain tumor in 1976 and that Reynolds said, \u201cWe are just going to ignore it.\u201d She said that Reynolds completed her application and she signed it. Appellant claims that at Reynolds\u2019 instruction, she marked \u201cno\u201d on the application where it asked if she had been confined in a hospital within the past five years. Reynolds denied that appellant gave him any information concerning a prior surgery or hospitalization. Both appellant and Reynolds did agree that appellee mailed appellant a follow-up l\u00e9tter asking appellant to verify the information on her application, a copy of which was enclosed with the letter. Appellant signed on a line indicating that the information in the application was incorrect and returned the form to appellee. Appellee sent appellant a second letter, asking how and why the information/application was incorrect. Appellant erased her signature from the form and signed the line that indicated the information was correct. She made this change, she claims, because Reynolds had told her to ignore her prior surgery and hospitalization when they initially completed the application. She testified, \u201cI figured if it was good at first it was still good.\u201d\nIn view of the foregoing law and facts, factual questions existed concerning whether appellant had informed Reynolds about her prior surgery and hospitalization and even if she had, whether, on the evidence of this case, appellee was bound by Reynolds\u2019 knowledge. In any event, the jury was precluded from considering or deciding these questions by the trial court\u2019s erroneously instructing them that Reynolds\u2019 knowledge could not \u2014 under any circumstances \u2014 be imputed to the appellee. As we previously noted, that instruction was wrong and because of that error, we must reverse this cause for a new trial.\nWe find appellant\u2019s other arguments without merit, but we do briefly address the one concerning the policy\u2019s incontestable provision since this cause is returned for a new trial. This provision provides that after two years from the effective date of the policy, no misstatement, except fraudulent misstatements made by the applicant, shall be used to void the policy or to deny a claim. It also provides that no claim for a disease or condition not specifically excluded shall be reduced or denied on the ground that it existed prior to the effective date of the policy. The appellant argues that because of the incontestable provision, the claim must be paid as a matter of law because the disputed loss clearly occurred more than two years after the effective date of the policy. Appellant contends there was no misstatement and certainly no fraudulent misstatement on her part so the incontestable provision applies to the facts at hand. However, the appellant overlooks the fact that the appellee asserted fraudulent misrepresentation as a defense to appellant\u2019s claim, and the trial court properly instructed the jury on appellee\u2019s burden of proof with respect to that defense. Whether fraud had occurred, thereby effectuating the incontestable provision, was a fact question for the jury and was properly presented to them for resolution.\nReversed and remanded.\nCorbin, J., agrees.\nMayfield, J., concurs.", "type": "majority", "author": "Tom Glaze, Judge." }, { "text": "Melvin Mayfield, Judge,\nconcurring. I concur in the reversal and remand of this case but want to make my position clear on a couple of points.\nThe trial court\u2019s instruction No. 10 told the jury that knowledge obtained by appellee\u2019s soliciting agent could not be imputed to the appellee. This was objected to on the basis that it was an incorrect statement of the law. In addition, the court refused to give appellant\u2019s requested instruction \u201cE\u201d which would have told the jury that the agent\u2019s knowledge of appellant\u2019s preexisting medical condition was imputed to the appellee. I think it may be important to know why it was error to give the appellee\u2019s instruction and to refuse the appellant\u2019s.\nAlthough some cases are explained on the basis of waiver, Reliable Life Ins. Co. v. Elby, 247 Ark. 514, 446 S.W.2d 215 (1969), or estoppel, Interstate Fire Ins. Co. v. Ingram, 256 Ark. 986, 511 S.W.2d 471 (1974), I think the real basis is explained in Jackson v. Prudential Ins. Co. of America, 564 F.Supp. 229 (W.D. Ark. 1983), as follows:\nThe distinction ... is that . . . the insurance agent, whether a general or soliciting agent, had been given authority by the company to obtain the information necessary to complete the application, and to accept the \u201cknowledge\u201d obtained in doing so. That is his \u201cjob,\u201d so anything he learns in relation thereto is imputed to the company.\nId. at 235. See also M.F.A. Mutual Ins. Co. v. Jackson, 271 F.2d 180 (8th Cir. 1959); DeSota Life Ins. Co. v. Johnson, 208 Ark. 795, 187 S.W.2d 883 (1945); Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S.W. 792 (1917).\nThis reason may be important in other respects but I mention it in view of the majority opinion\u2019s characterization of Aetna Life Ins. Co. v. Routon, 207 Ark. 132, 179 S.W.2d 862 (1944),as an \u201cexception\u201d to the rule expressed in Jackson. I do not regard Routon as an exception. That case simply holds that \u201cif the agent in collusion with the applicant makes the false and fraudulent representations upon which the insurance is obtained, the fraud will vitiate the policy, even though the agent is acting within the apparent scope of his authority.\u201d This issue of collusion was not raised in the first trial, but if it is to be an issue on retrial, I think it should be understood that the rule in regard to collusion is not an exception to the rule expressed in Jackson in regard to the imputation of the agent\u2019s knowledge to his company. Both rules may be operative in the same case. See Mutual Aid Union v. Blacknall, supra.\nAlso, I want to note that the appellant did not admit that she signed the appellee\u2019s first letter on the bottom line to indicate that the information in the application was incorrect. The appellant and her husband each denied that appellant ever signed that line; they both testified that she signed the top line only. Appellant said she signed the top line because she had told the agent about her prior surgery and he had said to ignore it. She said \u201che was selling it and I was buying it,\u201d and \u201cI figured if it was good at first it was still good.\u201d\nThis brings me to my second point. The appellant testified that at the time she made the application for the insurance she had no symptoms of her previous illness and that, three years later, when she went back to the doctor she \u201cdidn\u2019t think it was nothing like that again.\u201d In view of the appellant\u2019s testimony and the possible new issue of fraud by the agent in collusion with the appellant, I think the appellant\u2019s husband should be permitted to testify that appellant told the agent that the doctor told her the first brain tumor was not malignant. Objection to that testimony was sustained in this trial. On retrial it should be admissible, not to prove the truth of the matter asserted, but to show that the statement was made. For that purpose I do not think it is hearsay, and it would be relevant on the issue of fraud by the agent in collusion with the appellant. Of course, the appellant\u2019s testimony that the doctor made that statement to her would be admissible on the issue of her fraud.", "type": "concurrence", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "Simes ir Associates, by: L.T. Simes, II, for appellant.", "Hoof man ir Bingham, P.A. for appellee." ], "corrections": "", "head_matter": "Dollie GILCREAST v. PROVIDENTIAL LIFE INSURANCE COMPANY\nCA 84-148\n683 S.W.2d 942\nCourt of Appeals of Arkansas Division I\nOpinion delivered February 13, 1985\nSimes ir Associates, by: L.T. Simes, II, for appellant.\nHoof man ir Bingham, P.A. for appellee." }, "file_name": "0011-01", "first_page_order": 31, "last_page_order": 37 }