{ "id": 2871668, "name": "William B. CURTISS, Plaintiff-Appellee, v. AETNA LIFE INSURANCE COMPANY, Defendant-Appellant", "name_abbreviation": "Curtiss v. Aetna Life Insurance", "decision_date": "1976-06-15", "docket_number": "No. 2338", "first_page": "105", "last_page": "110", "citations": [ { "type": "official", "cite": "90 N.M. 105" }, { "type": "parallel", "cite": "560 P.2d 169" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "75 N.M. 129", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377623 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "131-32" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0129-01" ] }, { "cite": "79 N.M. 729", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2746594 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/79/0729-01" ] }, { "cite": "86 N.M. 757", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823331 ], "weight": 8, "year": 1974, "pin_cites": [ { "page": "759" }, { "page": "800" }, { "page": "759" }, { "page": "800" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0757-01" ] }, { "cite": "49 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1948, "pin_cites": [ { "page": "712" } ], "opinion_index": 0 }, { "cite": "188 Va. 345", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2150430 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/va/188/0345-01" ] }, { "cite": "83 N.M. 680", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332708 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0680-01" ] }, { "cite": "77 N.M. 661", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809804 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0661-01" ] }, { "cite": "78 N.M. 86", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323819 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0086-01" ] }, { "cite": "85 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772166 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/85/0567-01" ] }, { "cite": "79 N.M. 379", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740791 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0379-01" ] }, { "cite": "77 N.M. 661", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809804 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0661-01" ] } ], "analysis": { "cardinality": 662, "char_count": 12524, "ocr_confidence": 0.805, "pagerank": { "raw": 1.4096890678507384e-07, "percentile": 0.6467265079933232 }, "sha256": "095643bebf080b6f088821f3bae247a9824db7015641c2599e35f8a64cb445e5", "simhash": "1:c7c148c59f3d047d", "word_count": 2007 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ, J., concurs.", "HERNANDEZ, J., dissents." ], "parties": [ "William B. CURTISS, Plaintiff-Appellee, v. AETNA LIFE INSURANCE COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nPlaintiff recovered judgment on an oral contract of insurance for compensatory and punitive damages. Defendant appeals from a denial of its motion for judgment N.O.V. We affirm.\nA. Alleged material misrepresentations were questions of fact for the jury.\nPlaintiff made application with Aetna Life Insurance Company for an insurance policy which covered health insurance. In answer to one question: \u201cHas any person to be covered had any Accident, Health or Life Insurance . . . declined . . . ?\u201d Plaintiff answered \u201cNo\u201d.\nWhether this answer was a material misrepresentation depends upon the facts which surrounded plaintiff\u2019s prior application for health insurance with Allstate Insurance Company. Plaintiff\u2019s testimony was contradictory as to a conversation with an agent of Allstate. Plaintiff admitted that an agent told him that this application had been denied. However, the agent also told him that this application was being withdrawn, and that plaintiff did not have to reveal that fact. Plaintiff felt that he had withdrawn his application. As a matter of fact, plaintiff\u2019s application had been withdrawn. Allstate did not actually decline plaintiff\u2019s application. Plaintiff answered the question correctly. His answer was not a misrepresentation.\nContradictions in plaintiff\u2019s testimony only affect his credibility. We do not weigh the evidence. It is the duty of the jury to weigh the evidence, determine the credibility of the witness, the weight to be given to his testimony, and determine where the truth lies. Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967).\nThe issue presented in this ease requires contractual interpretation. The intent with which plaintiff acted is irrelevant. Modisette v. Foundation Reserve Insurance Co., 77 N.M. 661, 427 P.2d 21 (1967). We believe the plaintiff\u2019s interpretation was reasonable.\nThe word \u201cdeclined\u201d in the question is ambiguous. It has many interpretations. See 2 Roget\u2019s International Thesaurus (3d ed. 1962) at 788. The well established test in New Mexico is that where terms used are ambiguous, the test is not what the insurer intended its words to mean, but rather what a reasonable person in the position of insured would understand them to mean. Williams v. Herrera, 83 N.M. 680, 496 P.2d 740 (Ct.App.1972). A reasonable person could understand that being asked to withdraw an application for health insurance was not the equivalent of having been \u201cdeclined\u201d insurance.\nIn answer to a second question: \u201cHas any person to be covered ever been treated, during the past 5 years, for any sickness, disease or injury, or had any departures from good health not stated elsewhere in the application?\u201d Plaintiff answered \u201cNo\u201d.\nPlaintiff went to a doctor in Ohio for the express purpose of getting a physical examination. Plaintiff was told that his cholesterol was high and the doctor put him on a low fat diet. Plaintiff informed defendant of the name and address of the doctor. Furthermore, plaintiff did not consider high cholesterol a sickness, disease or injury.\nIn answer to both questions, whether plaintiff made a misrepresentation was a question of fact for the jury.\nThe jury believed that plaintiff did not misrepresent the fact that his insurance application with Allstate was \u201cdeclined\u201d, nor that plaintiff had been treated for sickness, disease or injury. An appellate court should not place itself in the position of judge and jury below. We should follow the admonition in Hooker v. Hancock, 188 Va. 345, 49 S.E.2d 711 (1948):\nIt must be kept in mind that plaintiff is fortified by a jury\u2019s verdict and the judgment of the trial court \u2014 thus he occupies the most favored position known to the law. [49 S.E.2d at 712],\nB. Plaintiff was entitled to punitive damages.\nThe court gave an instruction on damages, the second paragraph of which is U.J.I. 14.25 and reads as follows:\nIf you find that the conduct of defendant was willful and wanton and proximately caused damage to plaintiff, and if you further find that justice and the public good require it, you may award plaintiff, in addition to any compensatory damages to which you find plaintiff entitled, an amount by way of example or punishment, as punitive damages, which will serve to punish the defendant and to deter others from the commission of like offense. [Emphasis added].\nDefendant objected to this portion of the instruction on two grounds: (1) punitive damages were not raised in the pleadings nor referred to in the pre-trial order, and (2) there was no evidence adduced at trial that would warrant the instruction. The first point was waived on this appeal.\nDefendant now contends that plaintiff\u2019s pleadings did not contain any requests for punitive damages; that the pleadings were not amended when defendant objected to the instruction, and the issue of punitive damages was not tried with the implied or express consent of defendant as required by Rule 15(b) of the Rules of Civil Procedure. Defendant did not claim that the pre-trial order was controlling. This claim of error was waived.\n(1) Punitive damages was tried with the express consent of defendant under Rule 15(b).\nCount three of plaintiff\u2019s complaint alleged that plaintiff was damaged in the sum of $100,000.00 by reason of defendant\u2019s fraudulent and bad faith refusal to pay plaintiff\u2019s claim. Plaintiff did not use the words \u201cpunitive damages\u201d. In answer to one of defendant\u2019s interrogatories, plaintiff stated that one of the categories of damages sought was \u201cpunitive damages\u201d. Thereafter, defendant denied the allegations of count three of plaintiff\u2019s complaint. During defendant\u2019s cross-examination of plaintiff, plaintiff announced that his \u201ccomplaint also alleges punitive damages.\u201d Defendant made no objection to this comment. During the trial of the case, defendant made no objection to any evidence which might bear on the issue of fraud or bad faith.\nFraud and bad faith are essential elements of punitive damages for breach of contract. State Farm General Insurance Company v. Clifton, 86 N.M. 757, 527 P.2d 798 (1974). Defendant was put on notice of the issue of punitive damages. The fact that an amendment to the complaint was not actually made to use the words \u201cpunitive damages\u201d is unimportant. Aguayo v. Village of Chama, 79 N.M. 729, 449 P.2d 331 (1969).\nDefendant expressly or impliedly consented to try the issue of punitive damages under Rule 15(b).\n(2) Evidence supported an award of punitive damages.\nU.J.I. 14.25 did not intend that, to obtain an award of punitive damages, a defendant must be \u201cwillful and wanton\u201d in conduct toward a plaintiff. It should read \u201cwillful or wanton\u201d.\nThe court did instruct the jury that \u201cwillful and wanton\u201d means \u201cactual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for the rights of others.\u201d [Emphasis added]. Defendant did not object to this instruction. It is controlling.\nThe rule stated in State Farm General Insurance Company v. Clifton, supra, for breach of contract is:\nPunitive damages can be awarded in a breach of contract action in New Mexico, but there must be a showing of malice or of reckless or wanton disregard of plaintiff\u2019s rights. [Emphasis added] [86 N.M. at 759, 527 P.2d at 800].\n\u201cThere is very little, if any, difference between \u2018willful\u2019 and \u2018malicious\u2019 conduct\u201d. An act characterized as \u201c \u2018willfully\u2019 or \u2018maliciously\u2019 . . . denotes the intentioned doing of a harmful act without just cause or excuse or an intentional act done in utter disregard for the consequences, and does not necessarily mean actual malice or ill will, . . .\u201d [Emphasis added]. Potomac Insurance Company v. Torres, 75 N.M. 129, 131-32, 401 P.2d 308, 309 (1965).\nAetna admits on appeal that the evidence established an oral contract of insurance between the parties, the same as though an actual policy had been issued. The contract had been breached by refusal to pay.\nIn Clifton, supra, the court held that, in the absence of bad faith or fraud, it would be improper to assess punitive damages. \u201cBad faith\u201d was defined as meaning \u201cany frivolous or unfounded refusal to pay; it is not necessary that such refusal be fraudulent.\u201d [86 N.M. at 759, 527 P.2d at 800]. Aetna refused to pay because plaintiff was unable to take the physical examination, plaintiff then being in the hospital suffering a heart attack.\nThe record shows:\nOn July 19, 1972, plaintiff filled out an application for hospitalization insurance with Paul Lattin, agent of Aetna, and plaintiff paid $64.06 by check to Aetna, which was accepted. On August 4, 1972, Aetna\u2019s home office requested that the local office obtain a doctor\u2019s statement. On September 8, 1972, the home office again inquired about a doctor\u2019s statement. Eleven days later, on September 19, 1972, plaintiff was called for a correct address of the doctor. This application expired in sixty days and on September 27, 1972, plaintiff was required to fill out a second application for insurance. This delay was due to the fact that the application was left in the agent\u2019s desk drawer, the agent who had quit the firm. Aetna admitted this conduct was negligent. On October 13, 1972, plaintiff suffered a heart attack. The following Monday, his wife called the agent to remind him that an application had been filed in July and she wanted to know if he was insured and the agent assured her that he was and stated he was going to request a physical examination. She told the agent her husband was in the hospital. The agent said he would have to contact the home office and would let her know the following morning. He never did. On October 20, 1972, Aetna declined plaintiff\u2019s application because he was unable to take the physical examination and refused to pay plaintiff\u2019s medical expense.\nThis evidence falls within the meaning of the words \u201cwillful\u201d, \u201cwanton\u201d or \u201cmalicious\u201d conduct. Defendant intentionally refused to pay without just cause or excuse because it declined plaintiff\u2019s application after plaintiff suffered a heart attack, knowing that plaintiff could not take a physical examination. The evidence was substantial in support of the instruction on punitive damages.\nAffirmed.\nIT IS SO ORDERED.\nLOPEZ, J., concurs.\nHERNANDEZ, J., dissents.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "HERNANDEZ, Judge\n(dissenting).\nI respectfully dissent.\nThe plaintiff knew that he had been rejected by the Allstate Insurance Company, yet in his application with defendant he denied this fact. His argument that he had not been denied insurance coverage because he had withdrawn his application, is sheer sophistry. Whether he acted fraudulently, negligently, or innocently, is not controlling. Modisette v. Foundation Reserve Insurance Co., 77 N.M. 661, 427 P.2d 21 (1967). As to the materiality of this misrepresentation, Mr. Meyer, the defendant\u2019s general agent in Albuquerque, testified in part as follows:\n\u201cQ. Are you familiar with the underwriting policies of Aetna?\n\u201cA. Yes, I am.\n\u201cQ. Is it important from an underwriter\u2019s standpoint to know about prior insurance applications made by an applicant, and whether or not those applications have been denied?\n\u201cA. Yes, because it helps personal history on the individual.\n\u201cQ. And knowledge about prior applications is material in determining insurability?\n\u201cA. Yes, it is; sure is.\u201d\nTerse as these answers were, nonetheless, they were not refuted. However, irrespective of these answers, I believe that the materiality of the answer to the question is self-evident because it relates directly to the plaintiff\u2019s insurability. The materiality of an answer to such a question is determined by the probable and reasonable influence it would have on an insurer\u2019s decision whether or not to accept the risk, and if so, with what qualifications. Rael v. American Estate Life Insurance Company, 79 N.M. 379, 444 P.2d 290 (1968).\nThe trial court, in my opinion, erred in not granting the defendant\u2019s motion for judgment N.O.V., because in my opinion, there was neither evidence nor inference from which the jury could have arrived at its verdict. See Tapia v. McKenzie, 85 N.M. 567, 514 P.2d 618 (Ct.App.1973).", "type": "dissent", "author": "HERNANDEZ, Judge" } ], "attorneys": [ "Rex D. Throckmorton, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for defendant-appellant.", "Charlotte Mary Toulouse, Toulouse, Krehbiel & Cheney, P. A., Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "560 P.2d 169\nWilliam B. CURTISS, Plaintiff-Appellee, v. AETNA LIFE INSURANCE COMPANY, Defendant-Appellant.\nNo. 2338.\nCourt of Appeals of New Mexico.\nJune 15, 1976.\nCertiorari Denied July 15, 1976.\nRex D. Throckmorton, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for defendant-appellant.\nCharlotte Mary Toulouse, Toulouse, Krehbiel & Cheney, P. A., Albuquerque, for plaintiff-appellee." }, "file_name": "0105-01", "first_page_order": 141, "last_page_order": 146 }