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

CRAVEN, Circuit Judge

(dissenting).

I agree that the widow’s contentions regarding the propriety of judgment n. o. v. were adequately covered in the opinions previously filed. However, I do not believe the questions raised by Mrs. Sivertsen as to the effect of § 38.1-393 and § 38.1-405, Code of Virginia (1950), should be disposed of without further argument. Section 38.1-405 does exempt “policies issued or granted in exchange for lapsed or surrendered policies” from the requirement of § 38.1-393 that the written application for insurance be attached to the policy when issued. Does this mean that conversion and reissuance of a policy is enough to cure the initial issuance of that policy without the attachment of the written application? I think not. The purpose of the attachment requirement is “that the insured shall have in his possession during his lifetime, and that the beneficiary shall have after the death of the insured, the entire evidence of the contract.” Fisette v. Mutual Life Insurance Co., 162 La. 620 , 110 So. 880 , quoted with approval in Southland Life Insurance Co. v. Donati, 201 Va. 855 , 114 S.E.2d 595, 597 (1960). Interpreting § 38.1-393, the Virginia Supreme Court has said the legislature intended “to restrict the insurer in the use of statements made by the insured in defense of a claim under the policy unless they be incorporated into the contract in the mode prescribed.” Id. at 596. Since the legislature has taken such pains to see that the insured and his beneficiary be given the “entire evidence of the contract,” it would seem incongruous to hold that an insurer’s failure to supply the entire contract could be remedied by the reissuance of an equally incomplete policy upon conversion. The legislature would seem to have contemplated that the § 38.1-405 exemption apply only to policies granted in exchange for lapsed or surrendered *448 policies that were in compliance with § 38.1-393.

Because the proper disposition of this question, and of others requiring interpretation of § 38.1-393, is unclear and has not been adequately considered by the court, I would grant the widow’s petition for rehearing with reargument limited to the § 38.1-393 and § 38.1-405 aspects of the appeal.

I agree that these questions of state law do not justify rehearing en banc.