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Seeburg Corp. v. United Founders Life Ins.

OPINION FILED FEBRUARY 22, 1980.

SEEBURG CORPORATION OF DELAWARE, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

UNITED FOUNDERS LIFE INSURANCE COMPANY OF ILLINOIS, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN F. HECHINGER, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 9, 1980.

This is an appeal by defendant-counterplaintiff (hereafter defendant) from a judgment for $6,057 in favor of plaintiff-counterdefendant (hereafter plaintiff) in litigation involving group insurance policies issued by defendant to plaintiff and the latter's wholly owned subsidiary, Williams Electronics, Inc. (hereafter Williams). Defendant's contentions on review are (1) that the trial court's finding that defendant was not entitled to combine the experience figures attributable to the policies issued by defendant to plaintiff and Williams in calculating whether any rebate was due was against the manifest weight of the evidence; (2) that even if such combining was properly disallowed, the trial court otherwise improperly calculated the rebate due plaintiff in its judgment; and (3) that the trial court also erred (a) in denying defendant's motion for judgment in its favor at the close of plaintiff's case and (b) in failing until the seventh day of trial to require plaintiff to verify its response to defendant's request to admit facts.

From our review of the record, it appears that in the fall of 1969, plaintiff, Williams and Gulbransen (another of plaintiff's wholly owned subsidiaries) searched for a new carrier for their employee group insurance policies after premiums had been increased on their existing policies. In the course of this search, plaintiff was directed to Amalgamated Insurance Agency Services, Inc. (Amalgamated), an insurance agency for various companies, including United. This led to a meeting in November of 1969 between Ralph Isaacksen (plaintiff's vice-president of personnel), Myer Breen (president of Amalgamated), and David Sonen (the latter's assistant). Breen testified that at this meeting he was advised of the corporate structure of plaintiff and its subsidiaries, which included several South Atlantic divisions or "affiliates," and that he told Isaacksen that a saving would result if all the companies were grouped into one policy because the higher premiums would ultimately result in a higher rebate under United's "experience rating plan." Sonen testified, however, that the subsidiaries were not mentioned at that initial meeting; that he first learned of Williams "some days" after the meeting; and that he never suggested a master contract to cover all the subsidiaries.

In any event, it appears clear that Isaacksen provided Breen with the necessary information and materials as to plaintiff and that the materials regarding Williams and Gulbransen were later sent to Amalgamated. In the following months, Sonen (either alone or accompanied by Breen) had approximately seven more meetings with Isaacksen and other plaintiff officials, such as James Czech (assistant controller), James Hughes (vice-president), and Louis Nicastro (president and board chairman). Further, it is clear that Amalgamated was told at some point by a plaintiff official to contact Williams to discuss the possibility of acquiring their insurance also. Sonen testified that in late November of 1969 he met with Russell Babb (Williams' vice-president of operations), who told him it was imperative that Williams' hourly and salaried employees be treated separately, since the hourly employees were represented by a "tough union" and different benefits were applicable, and that Babb also said Williams was "a separate company from plaintiff * * * and that everything was to be kept separate."

As a result of the various meetings, Breen informed Nicastro in a letter dated November 28, 1969, of the premium rates which would apply to plaintiff and added that Amalgamated hoped to complete its study on the "Gulbransen and Williams segments within a week." On March 27, 1970, Breen wrote to Hughes, informing him of the acceptance of group life insurance for Williams and, on that same date in a separate letter to Hughes, Breen said that the Gulbransen group life policy had also been accepted.

United ultimately issued several policies, effective as of April 1, 1970, which are the subject matter of the instant litigation, namely:

GA-103 Issued to Seeburg as group policyholder. Group accident and sickness, covering salaried and hourly employees.

G-103 Issued to Seeburg as group policyholder. Group life, covering hourly and salaried employees.

GA-103 A(H) Issued to Williams as group policyholder. Group accident and sickness, covering hourly employees.

G-103-A(H) Issued to Williams as group policyholder. Group life, covering hourly employees.

GA-103-A Issued to Williams as group policyholder. Group accident and sickness, covering salaried employees.

G-103-A Issued to Williams as group policyholder. Group life, ...


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