Opinion

Phyllis J. Sivertsen v. The Guardian Life Insurance Company of America

  • 423 F.2d 443
Court
Court of Appeals for the Fourth Circuit
Filed
Mar 23, 1970
Status
Published
On the bench
Winter, Craven, Harvey
Cited by
4 cases

The opinion

OPINION AND ORDER ON PETITION FOR REHEARING

PER CURIAM.

In her petition for rehearing, the widow claims (1) that the insurance company here was not entitled under Virginia law to assert a defense of misrepresentation because the written application was not endorsed upon or attached to the insurance policy in question when issued; and (2) that since the pertinent medical evidence was conflicting, this issue was for the jury to resolve. We find no merit in these contentions and deny rehearing.

The Virginia statute relied upon, § 38.1-393, Code of Virginia of 1950, has no application here by virtue of § 38.1-405, which specifically exempts “policies issued or granted in exchange for lapsed or surrendered policies * * * By its terms, the original policy expired some six weeks after Sivertsen terminated his employment with Virginia Wesleyan College on December 31, 1965. On January 12, 1966, within permissible time limits, Sivertsen had formally applied for its conversion, and his wife had returned the original policy on January 25, 1966. The converted policy became effective automatically on February 16, 1966, which was 31 days after the last premium due date. The policy sued upon was therefore the converted policy which was not subject to the requirements of § 38.1-393 of the Virginia Code by virtue of § 38.1-405.

The widow’s second point was adequately covered in the majority and dissenting opinions previously filed.

Despite the widow’s suggestion for a rehearing in banc, no judge either a member of the Court or of the panel that rendered the decision has requested a vote on the suggestion. Rule 35, Fed.R. App.Pro.

Rehearing denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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