602 S.W.2d 883

RELIANCE INSURANCE COMPANY, Plaintiff-Respondent, v. Donald R. ECHOLS and Claudine Echols, Defendants-Appellants, and George Ray, d/b/a Ray’s Trucking, and Larry Roberts, Defendants.

No. 10443.

Missouri Court of Appeals, Southern District.

July 17, 1980.

Motion for Rehearing and/or to Transfer to Supreme Court Denied Aug. 11, 1980.

Application to Transfer Denied Sept. 9, 1980.

*884W. Ray Daniel, B. H. Clampett, Daniel, Clampett, Rittershouse, Dalton & Chaney, Springfield, for defendants-appellants.

Glenn A. Burkart, Richard E. Dorr, Mann, Walter, Burkart, Weathers & Warden, Springfield, for plaintiff-respondent.

FLANIGAN, Chief Judge.

Reliance Insurance Company, plaintiff-respondent, brought this action seeking a declaratory judgment to the effect that its “general liability-automobile policy” number GA 1435505, does not obligate it to furnish a defense or pay any judgment which might be obtained by the plaintiffs in civil action 71488. In the declaratory judgment action the defendants are Donald R. Echols, Claudine Echols, George Ray and Larry Roberts.

In civil action 71488 Mr. and Mrs. Echols sued Ray and Roberts for personal injuries arising out of a collision which occurred on October 7, 1973, involving a truck owned by Ray and driven by Roberts and a car occupied by Mr. and Mrs. Echols. Earlier in the year the truck was one of the vehicles covered by the Reliance policy. The trial court, sitting without a jury, entered judgment in favor of plaintiff Reliance and against the defendants on the ground that Reliance had cancelled the policy on October 4,1973. Defendants Donald Echols and Claudine Echols appeal.

Appellants contend that the ruling of the trial court that the policy was cancelled on October 4, 1973, was erroneous for the following reasons:

1. The policy was purportedly cancelled for nonpayment of premium and in fact the premium had been paid in full in April 1973;

2. The premium was financed under a premium finance agreement between Afeo Credit Corporation and Ray. When Reliance was notified by Afeo of the premium finance agreement, Reliance added an endorsement to the policy which erroneously stated that the premium finance agreement authorized Afeo, in the event of default by Ray in the payment of his installment loan to Afeo, to cancel the policy on behalf of Ray. In fact the premium finance agreement contained no such authorization;

3. Reliance’s cancellation of the policy was not justified by the document which Afeo sent to Reliance advising Reliance that Afeo was financing the premium;

4. The premium for the policy, for a policy period of one year, was $4,861. When Afeo notified Reliance of its request for refund of the unearned premiums, Ray owed Afeo $1,740.19. After the purported cancellation on October 4, 1973, the unearned premium totaled $3,686.19. Reliance “had more than enough money on hand to pay Afeo $1,740.19 and still have full payment of the premium.” Accordingly Reliance was not “justified in purporting to cancel the policy for nonpayment of premium”;

5. Under the premium arrangement between Afeo and Ray, Ray was to make monthly installment payments to Afeo. Ray sent the July installment to Afco’s agent, Squibb, but Squibb improperly applied the payment to the indebtedness of *885Ray to Squibb. Thereupon Ray “paid the July installment a second time.” In so doing, Ray made an advance payment of the August installment and thus Ray was not in default when Afeo notified Reliance that Ray was in default for nonpayment of the August installment.

Appellants’ contentions, none of which is valid, require a detailed statement of the salient facts and governing documents.

In January 1973 Ray, an earth-moving contractor, made arrangements to procure five insurance policies through Squibb Insurance Agency of Springfield, Missouri. Pour of those policies, including the instant policy, were issued by Reliance. The premiums for the five policies totaled $6,262. Ray was unable to pay that amount and financing arrangements were necessary. Ray arranged with Squibb that a down payment of $1,252.40 would be made and the balance of the premiums ($5,009.60) would be financed through a “premium finance agreement” entered into by Ray and Afeo Credit Corporation.

With regard to the down payment of $1,252.40, Ray himself paid $1,000 and Squibb paid $252.40. Squibb treated the latter as a loan by it to Ray and carried that loan as an “open account.” The amount which Ray borrowed from Afeo was $5,009.60, plus a finance charge of $180.97, for a total of $5,190.57. The latter amount was to be paid to Afeo by Ray in nine monthly installments of $576.73 each, with the first installment due on February 26, 1973.

In April 1973 Reliance received payment in full of the premiums on the four policies, including the instant policy, which it issued to Ray. That payment consisted of the down payment of $1,252.40 and the $5,009.60 which Ray had borrowed from Afeo.

Material provisions of the “premium finance agreement” entered into by Ray and Afeo on March 2, 1973, are set out below.1

Reliance policy number GA 1435505 was issued by Reliance on February 5, 1973. The policy was issued for a term of 12 months beginning January 25, 1973. Material provisions of the policy are set out below.2

*886Under the premium finance agreement the first installment ($576.73) payable by Ray to Afeo was due on February 26, 1973. Pursuant to an agreement between Ray and Squibb, Squibb made that payment for Ray. The amount of the payment was added to Ray’s “open account” with Squibb, so that Ray became indebted to Squibb in the amount of $829.13 ($576.73 plus the prior advance of $252.40).

On March 2, 1973, Afeo mailed to Reliance a “notice of advanced premium.” The notice informed Reliance that Afeo would make a loan to Ray financing the premiums on the four listed Reliance policies, including the instant policy, which Ray had obtained through Squibb. Other material portions of that notice are set forth below.3

On March 30, 1973, Reliance attached an endorsement to policy GA 1435505. Material portions of that endorsement are set forth below.4

Ray paid to Afeo, although belatedly, the installments which were due on March 26, April 26, May 26, and June 26. These payments were made by checks payable to Afeo itself.

With respect to the July 26 installment, Ray’s wife, Lucille Ray, sent to Squibb a check in the amount of $576.73, signed by Ray. The check was payable to Squibb. Squibb received that check on August 8, gave Ray credit therefor on his “open account,” and reduced Ray’s indebtedness to Squibb to $252.40.

According to the testimony of Squibb’s employee, Gary Nickel, whose version the trial court accepted, Ray ascertained from his wife that she had sent the $576.73 check to Squibb rather than to Afeo. Ray asked Nickel to forward the check to Afeo but, after further discussion, Ráy agreed that the check would be credited to his open account with Squibb, and Ray himself would pay, belatedly, the July 26 install*887ment to Afeo with other funds. Ray borrowed some money from his son and, on August 20, paid Afeo the July 26 installment.

Afeo never received the installment which was due on August 26 and, in light of that fact, Afeo on September 19 mailed to Reliance a “request for refund,” which Reliance received on September 21. By that document Afeo informed Reliance that Ray’s premium finance agreement “has been terminated because of default” and that “the gross unearned premium should be forwarded to Afeo promptly.” That document also contained this language, “THIS IS NOT NOTICE OF CANCELLATION OF THE POLICIES.”

On September 21 Reliance mailed to Ray a notice of cancellation of the instant policy, the notice stating that the effective date of cancellation was October 4, 1973. Reliance also cancelled the other policies.

On September 19, when Afeo mailed Reliance the request for refund, Ray’s indebtedness to Afeo was $1,740.19 and the request informed Reliance of that fact. Afeo was paid that amount out of the unearned premium on the cancelled policies, one of which was the instant policy. The balance of the unearned premiums was paid to Ray. Policy GA 1435505 included, in addition to its vehicle coverage, liability coverage with respect to other risks (excavation, wrecking, etc.). The latter coverages, rather than the automobile coverage, were the sources of unearned premiums.

Under Condition 11 of the policy, Reliance had the right to cancel.5 Condition 11 prescribes the manner in which cancellation is to be effected by Reliance and appellants make no claim that the method which Reliance employed in effecting cancellation failed to conform with the manner prescribed. On the other hand, Condition 11 does not require a reason for cancellation and the notice of cancellation, mailed by Reliance to Ray on September 21, did not state a reason.

“Policy provisions for cancellation, unless in conflict with the terms of an applicable statute,6 are valid. ... An unequivocal agreement contained in a policy, by which either party may cancel the contract, is binding between the parties, for the parties to a contract of insurance validly may contract as they please with respect to cancellation.”

“The validity of a provision for unilateral cancellation of the insurance policy is sometimes based upon the principle that since such termination was agreed to by both parties, the freedom of contract of the parties to make such contract as they choose extends to the right to provide for such manner of cancellation. So, it has been declared that the parties to an insurance contract may cancel it at any time by mutual consent, and, in the absence of statute, they may agree in advance that the contract made by them shall cease to be binding at any time at the option of either or both of them.” Couch on Insurance, 2d, Yol. 17, § 67:45, pp. 417-418.

An insurer having a contract right to cancel a policy may do so without reference to the reason or motive underlying the cancellation. Mass. B. & I. Co. v. Simonds-Shields-Lonsdale & Co., 226 Mo.App. 1071, 49 S.W.2d 645, 649[4] (1932); Hartford A. & I. Co. v. Hartley, 275 F.Supp. 610, 619[21] (1967); Jablonski v. Wash. Co. Mut. Fire Ins. Co., 13 Ill.App.2d 499, 142 N.E.2d 170, 171[1] (1957); Knutzen v. Truck Ins. Exch., 199 Wash. 1, 90 P.2d 282, 285[4] (1939); Pearson v. General Cas. & Sur. Co., 107 N.J.L. 509, 154 A. 739 (1931); Camp v. Aetna Ins. Co., 170 Ga. 46,152 S.E. 41, 42[1] (1930); Siegler v. New Amsterdam Cas. Co., 3 N.J.Misc. 1069, 130 A. 543, 544[3] (1925). *888Couch on Insurance, 2d, Vol. 17, § 67:69, p. 433; Appleman, Ins. Law & Prac., Vol. 8, § 5011, p. 598; 43 Am.Jur.2d Insurance § 400, p. 445; 45 C.J.S. Insurance § 446, p. 80; Anno. 68 A.L.R. 1171.7

Appellants make five attacks upon the propriety of the trial court’s finding that the policy was cancelled on October 4, 1973. Appellants’ first contention is that the policy was purportedly cancelled for nonpayment of premium and in fact the premium had been paid in full in April 1973.

It is doubtless true that Reliance’s cancellation was motivated by its receipt, on September 21, of Afco’s “request for refund,” but Reliance needed no reason to cancel. Indeed authority exists to the effect that Reliance’s cancellation of the policy would have been effective even if based on misinformation.8

This court does not disagree with authorities cited by appellants to the effect that where cancellation rights may be invoked only in the event of nonpayment of premium, the insurer may not cancel if the premium in fact has been paid. The instant policy, however, contains no such restriction upon Reliance’s right to cancel.

The mere fact that Reliance received full payment of the premium in April 1973 is no bar to its right to cancel. Indeed the policy itself provides for the return of unearned premiums in the event of cancellation, thereby recognizing that premium prepayment is not inconsistent with Reliance’s right to cancel. See Insurance Management, Inc. v. Guptill, 16 Wash.App. 226, 554 P.2d 359, 364[8] (1976), where the court rejected the argument that prior receipt by the insurer of its premium in full deprived it of its right to cancel. Appellants’ first contention has no merit.

Appellants’ second contention, advanced without citation of authority, emphasizes an erroneous recital contained in the policy endorsement set forth in footnote 4. The endorsement recites: “The premiums on this policy have been financed . under an agreement which specifies that default by TRavl in payment to fAfcol shall be deemed to be a request to TAfcol to notify fReliancel of the cancellation of the policy by [Ray] in accordance with its terms. . . . ” Appellants point out that the premium finance agreement between Ray and Afeo contains no provision which the underlined portion of the endorsement attributes to it. Thus, argue appellants, the “request for refund,” received by Reliance from Afeo on September 21, should not have been construed by Reliance as a request, on behalf of Ray, for cancellation. This argument has no merit.

The request for refund contained, in bold print, “THIS IS NOT NOTICE OF CANCELLATION OF THE POLICIES.” The erroneous recital in the endorsement has no significance for the reason that Afeo not only did not purport to cancel on behalf of Ray but indeed specifically informed Reliance that the request for refund was not a cancellation. The salient fact remains, however, that Condition 11 of the policy vested in Reliance the unrestricted right to cancel, in the prescribed manner, without regard to reason or for no reason at all. Although Reliance needed no justification for its cancellation, the fact that the request for refund necessitated the payment by Reliance to Afeo, out of the unearned premiums, of Ray’s indebtedness to Afeo of $1,740.19 is an explanation, though none was needed, for Reliance’s cancellation. Appellants’ second contention has no merit.

Appellants’ third contention, advanced without citation of authority, is that *889Reliance’s cancellation was not “justified by the notice of advanced premium” set forth in footnote 3. With regard to the latter document, appellants say, “Reliance was not contractually bound or legally obligated to cancel the policies, and the notice of advanced premium does not, and does not purport to, confer that right upon Reliance.” That statement is accurate but has no legal significance. Reliance’s right to cancel stems from Condition 11 of the policy. It is true that nothing in the notice of advanced premium required Reliance to cancel, but nothing in that document or the other documents deprived Reliance of its right to cancel under Condition 11.

Appellants point out that the notice of advanced premium required Reliance to pay Afeo an amount, calculated in accordance with paragraph A(l) of that notice, “if Ray fails to pay Afeo and Afeo requests refund.” Appellants argue that although Afeo did request the refund, Reliance did not know whether Ray had failed to pay Afeo. The fact is that Ray had failed to pay Afeo and the literal condition of paragraph A, triggering Reliance’s duty to pay Afeo, was met. All of this, however, does not alter the fact that Condition 11 of the policies vested in Reliance the unrestricted right to cancel and it did so.

Appellants say, “What if a dispute exists as to whether or not Ray has failed to pay Afeo.” The answer to that rhetorical question is that the existence of such a dispute or the resolution of it would not affect Reliance’s right to cancel. Appellants' third contention has no merit.

Appellants’ fourth contention, advanced without citation of authority, is that Reliance was not “justified in purporting to cancel the policy for nonpayment of premium” in view of the amounts which Reliance, following cancellation, paid Afeo ($1,740.19) and thereafter refunded to Ray ($1,946).

Appellants say: “Between January 25, 1973, the effective date of the policy, and October 4, 1973, the effective date of the purported cancellation, more than ⅜ of the policy period (12 months commencing January 25, 1973) expired. The only fair inference is that the premium was grossly miscalculated by Squibb and that, on September 21, 1973, Reliance, which had been paid in full in April 1973, had more than enough money on hand to refund to Afeo the sum of $1,740.19 and still have enough to pay its correct premium in full.”

Appellants have cited no authority, and this court has found none, to support the proposition that a miscalculation or over-estimate of a premium paid in advance affects or limits the contract right of the insurer to cancel a policy.9

Condition 1 of the policy, dealing with computation of premiums, provides for the crediting of an “advance premium” to the amount of the earned premium. Determination of the amount of the earned premium attributable to various coverages was based upon examination of Ray’s records reflecting the extent of his operations during the audit period, including Ray’s payroll records and “receipts.” The policy provisions quoted in footnote 1 make it clear that the parties contemplated that computation of the earned premium would be made at the close of the policy period, which in this instance ended with the effective date of cancellation. Appellants make no claim that the earned premium was not computed accurately at that time, nor do they claim that Ray was not given full benefit of that computation.

Appellants’ instant contention that Reliance was not “justified” in cancelling the policy overlooks the fact that Reliance’s right to cancel was not conditioned upon its ability to justify its exercise of that right. Appellants’ fourth contention has no merit.

Appellants’ fifth contention is based on the theory that the $576.73 check received by Squibb on August 8 should have *890been forwarded to Afeo in payment of the July 26 installment and that Ray’s subsequent payment of $576.73 to Afeo on August 20 should have been treated as an advance payment of the August 26 installment. Accordingly, argue appellants, Afeo should not have deemed Ray to be in default and Afeo should not have mailed the request for refund to Reliance on September 19.

Appellants argue that Afeo should be responsible, on the theory of agency, for Squibb’s conduct in retaining the check which Squibb received on August 8. An argument premised on the theory that Squibb was Afco’s agent is inconsistent with paragraph 9 of the premium finance agreement which states that Squibb is not the agent of Afeo. The soundness of the agency argument need not be considered.10 Reliance’s exercise of its right to cancel was in no way contingent upon the legality or even fairness of Afco’s conduct in sending the request for refund. Appellants’ fifth contention has no merit.

Appellants’ final contention, set forth in the last portion of their brief, need not be stated nor received because it fails to state “what actions of rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous,” thereby violating Rule 84.04(d) V.A.M.R.

Respondent’s motion to dismiss the appeal is denied.

The judgment is affirmed.

All concur.

Reliance Insurance Co. v. Echols
602 S.W.2d 883

Case Details

Name
Reliance Insurance Co. v. Echols
Decision Date
Jul 17, 1980
Citations

602 S.W.2d 883

Jurisdiction
Missouri

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