Originally posted by deathbait:
Replies in Darkred
Among the subjects covered in the questions were the ownership of
the vehicle and whether there were others in Smith's household who
were licensed motor vehicle operators. Responding to the agent's
questions, Smith said the vehicle was titled in her name and that
there were no other licensed drivers in her household. This
information was "input" into the agent's computer, transmitted to
the insurer's underwriting department, and reflected in an
application form printed by the computer that was signed by Smith.
Based on the information Smith furnished the agent, the policy was
issued effective March 8.
The insurer later learned, however, that when Smith applied for the
insurance she was not the actual owner of the vehicle, but that it
was owned by an unlicensed driver who did not live with her. If the
insurer had learned this fact at any time after issuance of the
policy, it would have cancelled the policy. The insurer also
learned later that Shunda Smith, a licensed driver, was living with
her mother at the time she applied for the policy. If the insurer
had known this fact at the time, the premium charged would have
increased by about 50%.
Upon consideration of the evidence, the trial court found the
insurer had met the requirements of Code § 38.2-309, which provides
that statements in an application for an insurance policy shall bar
recovery under the policy if it is "clearly proved" that such
statements were "material to the risk when assumed" and were
"untrue."
On appeal, the Smiths concede that the trial court had "sufficient
evidence to support its decision." The Smiths argue, however, the
insurer attempted to prove that the application form signed by
Catherine Smith was "incomplete" because, they note, the form did
not contain all the questions asked of her or her answers.
Nonetheless, they point out, it contained above her signature the
language "on the basis of statements contained herein."
"Basically," the Smiths say, "Colonial contends that Smith made
oral misrepresentations to its agent and that misrepresentation is
indicated by the lack of certain information on the application."
This "missing information," according to the Smiths, "if ever
requested, may have been contained in the agent's computer program
but never printed on the application or insurance contract Colonial
entered into with Smith."
The Smiths also rely on a "merger" theory in which they contend all
misleading statements "Smith made prior to her signing the
application were merged" into the contract of insurance. According
to the Smiths: "Colonial relies on alleged statements made to the
insurance agent and not on information found on the application in
order to add to and alter the contents of the insurance contract of
the parties." The Smiths contend, building on their "merger"
theory, that "[t]he trial court's admission of parol evidence to
add to or reform the terms of the contract was legal error."
We do not agree with any of the Smiths' contentions. Their argument
demonstrates a misconception of insurance law and practice
generally and the application process for motor vehicle liability
insurance in particular.
In the first place, there is no requirement that an application for
liability insurance be solely in writing; it may be oral, it may be
written, or, as in this case, partly oral and partly written. See
Franklin Fire Ins. Co. v. Bolling, 173 Va. 228, 233, 3 S.E.2d 182,
184 (1939); North River Ins. Co. v. Lewis, 137 Va. 322, 324-27, 119
S.E. 43, 44-45 (1923).
In the second place, an application for insurance is merely an
offer to enter into a contract. Hayes v. Durham Life Ins. Co., 198
Va. 670, 672-73, 96 S.E.2d 109, 111 (1957). The insurance policy is
the contract between the parties. Hence, this application for motor
vehicle liability insurance did not "merge" into the policy
contract that ultimately was issued by the insurer based upon
representations in the application.
In the third place, the parol evidence rule applies to written
contracts. Amos v. Coffey, 228 Va. 88, 91-92, 320 S.E.2d 335, 337
(1984). Therefore, the rule has no relevance to an application for
liability insurance because, as we have said, the application is a
mere offer.
Although the written
portion of the application in this case is not a model of clarity
and does not contain the actual questions posed by the agent, it is
nevertheless the embodiment of the discussion between the applicant
and the agent. Thus, the written form, as well as the oral
testimony explaining the completion of the form, were properly
considered by the trial court as evidence that material
misrepresentations had been made.
Accordingly, we hold the trial court did not err and we will affirm
the judgment below.>>>>
Source: http://www.courts.state.va.us/opinions/opnscvwp/1982070.doc
It can't be done. You can't have a contract saying A gets 20
dollars from B, then reverse it when B SAYS THEY HAD A VERBAL
CONTRACT WHERE A GETS NOTHING.
If this could be done, we might as well throw the whole concept of
contracts out the window.
Don't you understand already? It's 2 contracts not 1 contract. The
offer of $18,000 in exchange for the tenancy of the stall is a new
contract. It's a new offer and acceptance. There was a new exchange
of consideration ($18,000 and tenancy rights to the stall).
If you have the righteousness, mental aptitude and fervor to accept
facts and logic, then perhaps there is hope for you. Else you are
entitled your own opinion, I shan't waste any more time with
you.
Good day.
No more replies from me.
Thanks.
