The opinion
Robert L. Brown, Justice, concurring. I concur in the result but do so for different reasons than those expressed in the majority opinion.
The instant case involves a renewal of insurance which is effected by an initial payment. There is no disagreement between the parties that the payment was made. There is also no disagreement that the premium was mailed by Traver to Equity Fire two days before the renewal date of March 14, 1994. Finally, it is clear that once the premium was received by the insurance agent on March 22, 1994, the policy was renewed, effective as of that date.
Equity Fire relies on this language in its policy to deny coverage between March 14 and March 22, 1994:
“RENEWAL PROVISIONS”
We won’t refuse to renew this policy solely because of your age, sex, marital status, residence, race, color, creed, national origin, ancestry or occupation. Subject to our consent, you may renew this policy. When we consent to renew this policy, you must pay the renewal premium in advance. We will mail you a notice telling you when your premium must be paid. Your policy will expire if we don’t receive the required payment by the renewal date.
This language is buried on page 19 of a 21-page insurance contract. In addition, Equity Fire sent out a “Renewal Offer” specifying a Due Date of March 9, 1994, which differed from the Renewal Date of March 14, 1994. The Renewal Offer did not state that the policy would expire if payment was not received by March 9 or March 14. 1
Equity Fire, by practice, amended its insurance contract by adopting its own version of the mailbox rule. According to Ms. Tammy Warrier, who held the title of Supervisor for the carrier, the practice of her employer was to permit renewals when the premium was mailed before the due date (here, March 9, 1994) even though the premium was received long after the renewal date of March 14, 1994. Equity Fire’s own mailbox rule regarding the due date clearly modified the insurance contract. The practice may have benefitted the insured to some extent, but it primarily benefitted Equity Fire by encouraging payment of premiums five days before the renewal date.
In short, Equity Fire’s practice modified the insurance contract and resulted in an earlier payment of premiums than required by the insurance contract. Yet, Equity Fire refuses to acknowledge Traver’s payment of his premium made two days before the renewal date and couches its refusal on contract language which the carrier itself did not follow in all instances.
Equity Fire’s inconsistent treatment of the mailbox rule, depending on which party is benefitted, runs counter to sound public policy. Moreover, the fact that the insurance coverage would lapse absent receipt of the first payment by the renewal date was not made as clear as it could have been to Traver. That fact should have been highlighted on renewal notices and boldly printed in the insurance contract itself. It was not.
Like the majority, I am reluctant to adopt a mailbox rule across the board in all insurance cases. However, under the facts of this case, public policy dictates a decision in favor of the insured.
Imber, J., joins. The terms of the actual Renewal Offer sent to Traver are unknown because that specific Renewal Offer was either not received by Traver or was misplaced.