Radford v. Lincoln Income Life Insurance Co.

HOWARD, Judge,

dissenting.

I respectfully dissent. It is clear from the briefs and oral arguments that the appellant could not adduce any evidence that Lincoln Income Life Insurance Company did anything that would constitute a waiver of any policy provision. Nor could any evidence be presented that would constitute an estoppel.

The appellant may or may not have some cause of action against the agent for misrepresentation or some other cause of action, but, if so, this would not bind the company because of the policy provisions set out in the majority opinion. This provision specifically states that a company agent has no authority to waive or change any term of the policy. Under Kentucky law, where limitations on an insurance agent’s authority are contained in the application or in the policy, the insured is charged with notice thereof and cannot hold a company bound by acts of its agents beyond such limitations. There are several cases cited by the appellee to support this statement, but I would suggest that the discussion in Employers Mutual Fire Insurance Co. v. Cunningham, Ky., 253 S.W.2d 393 (1952), accurately sets out the controlling rule and traced the history of same. It is to be observed that the cases cited by the appellant are old cases and do not conform to the modern holdings.

Here we have a claim for death benefits after a policy had expired by its own term for nonpayment of premium. It is undisputed that the Radfords’ March 5 premium was not timely paid, and was not paid within the 31-day grace period. It is undisputed that this terminated the insurance policy according to its terms. It is undisputed that Morris Audas, the agent, had no authority to waive or alter any term of the policy and that the policy could not be reinstated retroactively after David Rad-ford’s death.

Under CR 56, a party is entitled to summary judgment if it is shown there is no genuine issue as to any material fact and, therefore, the party is entitled to a judgment as a matter of law. I can find no issue of genuine fact in this case and would, therefore, affirm the judgment of the trial court.