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MCGOWAN v. PRUDENTIAL INS. CO. OF AMERICA

April 18, 1966

Lucretia McGOWAN, Plaintiff,
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant



The opinion of the court was delivered by: GOURLEY

 This civil jury proceeding arises from a suit on an insurance policy to recover accidental death benefits and family income benefits. Verdict was in favor of plaintiff.

 The immediate matters before the court are Motions for Judgment N.O.V. and New Trial on behalf of defendant.

 JUDGMENT N.O.V.

 In support of said motion it is contended there was not sufficient evidence to support the jury's findings that the agent's representations created an estoppel and if they did, there was not sufficient evidence to support his authority to do so.

 An exhaustive and meticulous review of the record indicates substantial evidence from which the fact finder could infer that the agent's representations to the plaintiff gave her a basis to believe that the policy was still in force and that the plaintiff relied thereon.

 As to the agent's authority, counsel for the defendant relies on the disclaimer in the policy under "Miscellaneous Provisions" -

 
"No agent has power on behalf of the company to make or modify this contract, to extend the time for paying a premium, to waive any forfeiture, or to bind the company by making any promise or representation or by giving or receiving any information."

 Furthermore, the master contract between the agent and defendant, which defines the agent's duties and obligations with regard to policyholders, expressly states -

 
"to render to policyholders of a company all service incidental to the maintenance and care of the company's business which may be required by the policyholders or by the company."

 Where there is an express provision in the policy against waiver of agents, notwithstanding this, the receipt of the premium and delivery of a receipt therefor by the agent did constitute a waiver in view of the scope of the agent's authority. The basis of the decision was waiver and not estoppel, but the important point, in this thesis, is the ruling as to the extent and scope of the authority of an agent in the expediting of an express provision in the policy against waiver. Globe Mut. L. Ins. Co. v. Wolff, 95 U.S. 326, 24 L. Ed. 387.

 It is further contended that the principles enunciated in Continental Assur. Co. v. Jensen, 46 F.2d 902 (3 Cir.), are inapposite to the instant case. In that case an insurance agent told the assured that he was paying the premium and did not do so, and it was determined that this created an estoppel so that the assured was able to collect on the policy. The Court stated, "The misrepresentation which the plaintiff relies upon as a basis of estoppel in this case was made by an agent. It was not expressly authorized by the company nor was it brought to the company's attention subsequently and ratified by it. Is the company bound by it? This depends, as I take it, upon whether it was a statement made in connection with a matter which was within the general scope of the agent's authority."

 Although the facts in this case are somewhat different, I believe the rule enunciated therein is ...


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