South Carolina Tax Commission v. Metropolitan Life Insurance , 266 S.C. 34 ( 1975 )

Littlejohn, Justice

(dissenting) :

I respectfully dissent and would affirm the order of the lower court.

The trial judge held that there was no waiver by the defendant and that the company’s practice of paying claims whenever they were properly presented had no effect upon, or relevance to, its legal rights under the Act after the bar of the statute of limitations had become complete.

I do not think that the position which the defendant has taken, relative to these claims, deprives it of the defense of the statute of limitations with regard to the policies here involved. The acknowledgments by the defendant’s corporate offices did not expressly, or impliedly, waive the defense either prior to, or during, this litigation. See State v. El Paso Electric Co., 402 S. W. (2d) 807 (Tex. Civ. App. 1966).

Because of the difference in the facts involved, the case of Bank of America National Trust & Sav. Ass’n. v. Cranston, 252 Cal. App. (2d) 208, 60 Cal. Rptr. 336 (1967), relied upon by the commission and cited in the majority opinion, in my view is not influencing or controlling.

The fact that the defendant made voluntary payments heretofore, or indicated that it would malee voluntary payments hereafter, at its option, does not compel it to do so where a claim, other than the policyholder’s and/or beneficiary’s, is made. Waiver involves the intentional relinquishment of a known right. There is no evidence in the record before this Court that the defendant intentionally relinquished any right it had to defend the action here involved.

In my view, the statute of limitations applies to this action and it became a complete bar prior to the effective date of the Unclaimed Property Act. I would affirm.