Wynn v. Standard Life & Accident Insurance Co. of Oklahoma City , 1970 Okla. LEXIS 380 ( 1970 )

BERRY, Vice Chief Justice

(specially concurring) :

I concur specially because the petition alleges no facts in support of plaintiff’s plea for policy reformation on grounds of mutual mistake and because estoppel theory is inapplicable in view of plaintiff’s failure to deny in the reply the allegation in the insurer’s answer that the full amount of premiums deducted from plaintiff’s pay was refunded to and accepted by the plaintiff. California State Life Ins. Co. v. Bailey, 176 Okl. 153, 54 P.2d 647, 649; Great Am. Res. Ins. Co. of Dallas v. Strain, Okl., 377 P.2d 583.

I am of the view that had the plaintiff proceeded on the theory of waiver or es-toppel instead of reformation and based his right of action on premature deduction of premiums coupled with acceptance of coverage far in advance of the date at which plaintiff became eligible therefor under the terms of the master policy, the procedural framework of the case would have precluded a summary j udgment.

In my opinion, public policy dictates that an insurer who collects premium far in advance of the effective date of the coverage he affords misleads the insured into believing that he is protected. The insurer who follows such practice should be deemed es-topped from denying coverage as of the time premium is accepted. The insurer should leave no doubt as to what coverage the prepayment of a premium includes.