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Gibbs v. North American Ins. Co.

NOVEMBER 17, 1971.

WALTER L. GIBBS, PLAINTIFF-APPELLANT,

v.

THE NORTH AMERICAN COMPANY FOR LIFE, ACCIDENT AND HEALTH INSURANCE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The plaintiff insured, Walter L. Gibbs, appeals from a summary judgment for defendant insurer, The North American Company for Life, Accident and Health Insurance. Judgment was entered in the circuit court of the 17th Judicial Circuit, Winnebago County, after defendant filed an affirmative defense alleging plaintiff had stated in an application for group credit accident and health insurance that he had no sickness or injury for which he had consulted or been treated by a physician, that the facts were contrary to plaintiff's declarations and, if known to defendant, the insurance would not have been issued.

Plaintiff contends that a return postcard which defendant designates an "application" for insurance is merely an authorization to charge premiums to plaintiff, that if it is construed as an application its contents nevertheless should not be considered as it was not attached to the policy or certificate of insurance, that defendant's promotional literature was misleading and disguised the import of lines on the return postcard which plaintiff simply left blank, and that in any event the policy had become incontestable because it had been in force for a period of two years prior to defendant's contest.

The matters and allegations hereinafter recited are drawn solely from pleadings and exhibits in the record as no transcript of hearing on the motion for summary judgment has been filed or abstracted.

Plaintiff purchased a 1966 Mercury automobile about September 27, 1966, financing it through Universal C.I.T. Credit Corporation. Shortly afterwards, he received a "Dear Customer" letter from H.C. Watkins, President of the Corporation which congratulated him on getting the car and thanked him for the chance to finance it. The letter stated it was a wise move to have already taken advantage of an extra service, the life protection plan, and it made the customer eligible for a further service — accident and health protection — which would make payments when the customer was laid up under a doctor's care. The letter concluded on the following persuasive note:

"All you have to do is sign the postage-paid card and drop it in the mail. No red tape at all. The postmark date on the card marks the start of your protection * * *. Sign and mail the card now * * *."

An advertising piece covering both life and sickness or accident protection which apparently was enclosed and emanated from the defendant insurance company, said in part: "Simple to Set Up. Just sign and mail the enclosed authorization card."

The business reply card to Universal C.I.T. Corporation is postmarked October 13, 1966. The reverse side is dated October 12, 1966, signed by plaintiff, and indicates his age as 44 years. The text of the card is as follows:

"Yes, Mr. Watkins I accept the opportunity to be included in your Insured Payment Plan and desire the protection as indicated below:

14 Day Elimination Accident and Health Protection * * * $3.08 per month.

I authorize Universal C.I.T. Credit Corporation to add the above charge, as indicated, which includes interest at permissible rate, to my contract and to my monthly payments, and promise to pay said charge as added. I am the person to be insured and certify that I am now in good health; also that I have no sickness nor injury for which

I have consulted or been treated by a physician except (give full particulars):

I acknowledge receipt of a copy of this form with Notice of Proposed Insurance describing coverage."

The meaning of the last sentence is obscure, because so far as the record discloses, the only copy of the form received by plaintiff may be the same reply postcard he signed and returned by mail to Universal C.I.T. Credit Corporation and the only Notice of Proposed Insurance describing coverage may be the advertising brochure. In due course, plaintiff received a credit insurance certificate indicating the effective date as 10/12/66, and expiration date as 10/10/69, a monthly benefit of $78.30, and a premium of $100.08. The phrase "Disability ...


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