Appendix — Young v. Fidelity Union Life Insurance

APPENDIX A

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

[Filed March 23, 1982]

ULRICH WALDEMAR YOUNG, a minor, )

NORBERT NELSON YOUNG AND )

CHARLOTTE MARIE YOUNG, GLENN)

O. YOUNG, in person and Administrator)

of the Estate of Thomas Alexander

Young, and Father and next friend of

Ulrich Waldemar Young and Norbert

Nelson Young, No. 80-1944

Plaintiffs-Appellants,

v.

FIDELITY UNION LIFE INSURANCE

COMPANY, a stock company, Dallas,

Texas, JAMES M. STURDIVANT,

GABLE, GOTWALS, RUBIN, FOX,

JOHNSON & BAKER & GLEN RINE-

HART, as agents and attorneys,

Defendants-Appellees.

Ne ee —Vů— —— — — ee ee ee

Appeal from the United States District Court

For the Northern District of Oklahoma

D.C. No. 79-C-629

Submitted on the briefs: 95 K

Glenn O. .

tiffs-Appellants.

Elsie Cox Draper, GABLE, GOTWALS, RUBIN, FOX,

JOHNSON & BAKER, Tulsa, Oklahoma, for the Defen-

dants-Appellees.

2a

[APPENDIX)

Before PICKETT, McWILLIAMS and DOYLE

PICKETT, Circuit Judge

After examining the briefs and the appellate record,

this three-judge panel has determined unanimously that

oral argument would not be of material assistance in the

determination of this appeal. See Fed. R App. P. 34 (a);

Tenth Circuit R.10(e). This cause is therefore ordered

submitted without oral argument.

On September 16, 1974, Thomas Alexander Young com-

pleted an application for a $20,900.00 double indemnity life

sured’s mother. No more premiums were paid. The policy

was issued on September 18, 1974 and sent to the writing

agent who inquired of the insured as to delivery. On De-

cember 16, 1974, the policy was sent to the Kansas home

of the insured and actually received by him on December

22, 1974. The insured was killed on February 14, 1975. The

insurance company denied liability asserting that the policy

had lapsed because of non-payment cf premiums.

Charlotte Meier Young, as a primary beneficiary, and

assignee of Glenn O. Young, in trust for the two younger

sons, brought an action in the Creek County, Oklahoma

state court, to recover the proceeds of the policy. The in-

surance company employed the Tulsa, Oklahoma law firm

of Gable, Gotwals, Rubin, Fox, Johnson and Baker to rep-

resent it in the pending litigation. James M. Sturdivant,

3a

{APPENDIX}

a member of the law firm, was assigned to the case which

was removed to the U.S. District Court for the Northern

District of Oklahoma A motion for summary judgment

was filed for the insurance company alleging that the policy

was not in effect at the date of the death of the insured.

Before the disposition of this motion, Glenn O. Young, in

his own behalf, as administrator of the estate of his son,

Thomas, and as next friend of his two minor sons, moved

to intervene in the case. The trial court denied this mo-

tion stating that Glenn O. Young had assigned his interest

in the policy to his wife, Charlotte, and had no interest

therein. The court also held that interests of the minor

sons, if any, was represented by their mother, Charlotte,

and that the estate of the deceased son had no interest in

the litigation. No appeal was taken to the court’s denial

cf this motion.

In the pretrial proceedings, recognizing that only two

monthly premiums had been paid, the critical issue was

whether the policy became effective on the datc of the

acceptance of the application or the date that the policy

was manually delivered to the insured. This issue was

determined on motion for summary judgment filed by the

parties. The trial court, following a hearing on these mo-

tions, concluded that the unambiguous terms of the appli-

cation and the policy fixed the effective date as Septem-

ber 16, 1974 and that on the date of the insured’s death,

it had lapsed for non-payment of premiums. This court

affirmed Young v. Fidelity Union Life Insurance Company,

597 F.2d 705 (10th Cir. 1979) in which the court stated:

Based on the undisputed facts, the effective date of

the insurance policy was September 16, 1974, and as

only two monthly premiums were paid, the policy by

its terms had lapsed when the insured met his un-

timely death on February 14, 1975. The trial court,

X

97˙˙ ee a

(APPENDIX) sas

After the judgment in the first action became final,

Glenn O. Young, in person and as administrator of the

estate of Thomas Alexander Young, also as father and next

friend of his two younger sons, together with his wife,

Charlotte, brought this action in the District Court of Creek

County, Oklahoma to recover on the same policy which

was the subject of the first action. In addition to the in-

10

The issues presented by this appeal are

* — Gian te to ——

5a

(APPENDIX)

is not bound by the allegations in plaintiff's pleadings but

may resort to other means to determine if a cause of action

exists as to that defendant. Dodd v. Fawcett Publications,

Inc., 329 F.2d 82 (10th Cir. 1964); Wilson v. Republic Iron

& Steel Company et al, 257 U.S. 92 (1921); Smoot v. Chi-

cago, Rock Island and Pacific Railroad Company, 378 F.2d

879 (10th Cir. 1967).

There is a suggestion in the vague allegations of the

pleadings, the extensive arguments at the hearing on the

motion for summary judgment and the briefs filed in this

court that the insurance company and its attorneys joined

in a sinister scheme or plot to fraudulently mislead the

District Court and this court in finding against them in the

first case on the simple issue of the effective date of the

policy. The record in the first and in this case is com-

pletely devoid of any indication of misconduct on the part

of the attorneys for the insurance company. The inclusion

cf them as defendants is an obvious sham and frivolous.

The court did not err in sustaining the motion for sum-

mary judgment and overruling the motion to remand.

It is next urged that the trial court erred in sustain-

ing the insurance company’s motion for summary judgment

for the reason that the plaintiffs were bound by a final

judgment in a former case. Res judicata means that a mat-

ter has been previously settled by a final judgment. (Black's

Law Dictionary; 46 Am. Jur. 2d Judgments §395, p. 559).

The doctrine is firmly established in the law. It is in

the nature of an estoppel, the purpose of which is designed

to put an end to litigaiion of claims which have been previ-

ously determined by final judgment. It bars all parties and

their privies from recovery on matters which have been

duly adjudicated or should have been adjudicated in prior

litigation. In Guarantee Acceptance Corporation v. Fidelity

Mortgage Investors, 544 F.zd 449 (10th Cir. 1976), this court

Under the doctrine of res judicata, a prior adjudica-

tion between the parties or their privies on the same

6a

LAPPENDIX)

cause of action is conclusive as to all matters

are, were or should have been litigated. Spence v.

Latting, 512 F.2d 93 (10th Cir. 1975) cert. , 423

U.S. 896. |

In Brown v. Felson, 442 U.S. 127, the court said: .

Res judicata ensures the finality of decisions. Under

prior proceedings. Chicott County Drainage Dist v.

Baxter State Bank, 308 U.S. 371, 378 (1940); 1B J.

Moore, Federal Practice 90.405 [1] (2d ed. 1974). Res

judicata thus encourages reliance on judicial decisions,

bars vexatious litigation, and frees the courts to re-

solve other disputes.

See aiso Katzburg v. Krebs et al., 545 F.2d 104 (10th

Cir. 1976); Spence v. Latting, 512 F.2d 93 (10th Cir. 1975)

cert. denied, 423 U.S. 896.

of

the insurance ccmpany and their agents, after the death

or

{APPENDIX}

in the first action. The final judgment was contrary to the

contentions of the Youngs and they cannot be relitigated.

Relying on Oklahoma statute, Title 36 O.S. §3629(B),?

court allowed the claim in the amount of $5,165.00. There

was ample evidence to support the reasonableness of this

award.

i

® Title 36 OS. §3629(b) reads: It shall be the duty of the insurer

A

to the insured within ninety (90) days of receipt

apply to uninsured motorist coverage. 36 OS. '3629(B) (1977 Supp.)

APPENDIX B

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARCH TERM — April 22, 1982

Before Honorable Robert H. McWilliams, Honorable Wil-

liam E. Doyle, and Honorable John C. Pickett, Circuit

Judges

ULRICH WALDEMAR YOUNG, a Minor, )

NORBERT NELSON YOUNG, and CHAR- )

)

demar Young and Norbert Nelson Young,

Plaintiffs-Appellants,

vs

FIDELITY UNION LIFE INSURANCE

COMPANY, a stock company, Dallas,

Texas, JAMES M. STURDIVANT, GABLE,

GOTWALS, RUBIN, FOX, JOHNSON &

BAKER, and GLEN RINEHART, as Agents

and Attorneys,

Defendants-Appellees.

— ——— ee ee ee ee ee ee —

No. 80-1944

This matter comes on for consideration of appellant's

petition for rehearing filed in the captioned cause.

Upon consideration whereof, the petition for rehear-

ing is denied.

(s) Howard K. Phillips

HOWARD K. PHILLIPS, Clerk

APPENDIX C

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

Filed August 8, 1980)

ULRICH WALDEMAR YOUNG, a minor, )

et al.,

Plaintiffs,

vs.

FIDELITY UNION LIFE INSURANCE

COMPANY, a stock company, Dallas,

Texas, et al.,

Defendants.

— — — et — ee”

It having come to the Court's attention a scrivener’s

error was made in the Order and Judgment heretofore

entered in this case on July 29, 1980, in that the amount

of Judgment to be awarded was reflected as $3,651.25, when

it should have been $5,165.00,

IT IS ORDERED the Order entered July 29, 1980, and

the Judgment entered July 29, 1980, be amended to show

the correct amount of $5,165.00 instead of $3,651.25.

ENTERED this 5th day of August, 1980.

(s) Thomas R. Brett

THOMAS R. BRETT

UNITED STATES DISTRICT JUDGE

APPENDIX D

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

[Filed July 29, 1980)

ULRICH WALDEMAR YOUNG, a minor, )

et al.,

Plaintiffs,

vs. 79-C-629-BT

FIDELITY UNION LIFE INSURANCE

COMPANY, a stock company, Dallas,

Texas, et al., N

Defendants.

— —— dvb ee ee

ORDER

This matter came on for hearing before the under -

signed Judge on July 2, 1980, on the Motion for New

Trial and for Rehearing filed by plaintiffs; hearing on the

Counterclaim of the defendant, Fidelity Union Life Insur-

ance Company. At the conclusion of the arguments and

evidence the Court took the matters under advisement.

The Court has reviewed the Motion for New Trial

and for Rehearing filed by plaintiffs; has considered the

ent re file, including the additional authorities presented

by plaintiffs in their Motion to Include and Cite Additional

Authorities at Oral Argument on Motion for New Trial;

the briefs filed by the parties; the oral argument of the

parties.

The Court is not persuaded by plaintiffs’s arguments

that the previous order entered on June 3, 1900, is incor-

rect. The Court, therefore, finds plaintiffs’ Motion for New

Trial and for Rehearing should be overruled.

In the Order entered June 3, 1980, the Court made the

following finding relevant to the counterclaim of Fidelity

Union Life Insurance Company: “This order is not dis-

positive of the Counterclaim and it will be set for hearing.”

2d

[APPENDIX)

Fidelity Union Life Insurance Company seeks to re-

cover attorney fees pursuant to 36 O.S. §3629(B) (1977

Supp.) which provides, in pertinent part:

“It shall be the duty of the insurer, receiving a procf

of loss, to submit a written offer of settlement or re-

jection of the claim to the insured within ninety (90)

days of receipt of that proof of loss. Upon judgment

rendered to either party, costs and attorney fees shall

be allowed to the prevailing party.”

Case 76-C-30-C, styled “Charlotte Meier Young, etc.,

Plaintiff, vs. Fidelity Union Life Insurance Company, De-

fendant”, decided by the Honorable H. Dale Cock, and

affirmed by the Tenth Circuit Court of Appeals in Young v.

Fidelity U. Life Ins. Co., 597 F.2d 705 (10th Cir. 1979), was

filed prior to the enactment of 36 O.S. §3629(B) (1977

Supp.) and Fidelity claimed no attorney fees in that case,

nor was Fidelity entitled to claim attorney fees in that

case.

Fidelity Unicn Life Insurance Company contends ii is

entitled to recover attorney fees and costs in this action as

the prevailing party.

The evidence and exhibits in the present case (attached

to the Answer cf Fidelity Union Life Insurance Ccmpany)

reveal plaintiffs made an oral demand for the benefits they

claimed on March 6, 1975; a written demand on March 12,

1975; filed a Casualty Report and Proof of Death Claim on

March 19, 1975. The evidence further shows Fidelity Union

Life Insurance Company denied in writing the benefits on

March 6 and April 18, 1975. The Court finds this ccrres-

pondence sufficient to bring the defendant insurance com-

pany within the confines of 36 O.S. §3629(B) (1977 Supp.)

and entitle it to claim attorney fees and costs.

At the hearing, Fidelity Union Life Insurance Com-

pany filed an Affidavit in open Court, with an exhibit at-

tached, which revealed the claim of the insurance ccmpany

3d

[APPEND: x)

for legal fees as follows: 79.75 hours at $45.00 per hour —

$3,588.75; 1.25 hcurs at $50.00 per hour — $62.50; total claim

—- $3,651.25.

Fidelity Union Life Insurance Company also called as

a witness Mr. David Fist, a member of the bar of this Court,

who after being duly sworn and qualified, testified as to

the reasonableness of the fees sought by the insurance com-

pany. Mr. Fist testified in his opinion the claimed attorney

fees were low and mcdest and certainly reasonable.

The Court, upon reviewing the entire record and the

evidence adduced, finds the attorney fees sought in the

amount of $3,651.25 are reasonable.

The Court finds Fidelity Union Life Insurance Com-

pany is entitled to recover attorney fees in the sum of

$3,651.25 pursuant to 36 O.S. §3629(B) (1977 Supp.) and

is entitled to have judgment rendered in that amount on

its counterclaim.

IT IS THEREFORE, ORDERED as follows:

1. Plaintiffs’ Motion for New Trial and Motion to Re-

consider be overruled.

2. Defendant, Fidelity Union Life Insurance Company

is entitled to recover attorney fees in the amount of $3,-

651.25 on its counterclaim and have judgment entered in

its favor and against Charlotte Marie Young; Glenn O.

Young, as the Administrator of the Estate of Thomas Alex-

ander Young; and Glenn O. Young, as Father and Next

Friend of Ulrich Waldemar Young and Norbert Nelson

Young.

ENTERED this 29 day of July, 1980.

s) Thomas R. Brett

THOMAS R. BRETT

UNITED STATES DISTRICT JUDGE

APPENDIX E

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

[Filed July 29, 1980]

ULRICH WALDEMAR YOUNG, a minor, )

et al,

Plaintiffs,

vs. .

FIDELITY UNION LIFE INSURANCE

COMPANY, a stock company, Dallas,

Texas, et ai.,

Defendants.

JUDGMENT

Pursuant to the Order entered simultaneously with

this Judgment, IT IS ORDERED Judgment be entered in

favor of the defendant, Fidelity Union Life Insurance Com-

pany, and against Charlotte Marie Young; Glenn O. Young,

as the Administrator of the Estate of Thomas Alexander

Young; and Glenn O. Young, as Father and Next Friend

of Ulrich Waldemar Young and Norbert Nelson Young, in

the amount of $3,651.25.

ENTERED this 29 day of July, 1980.

(s) Thomas R. Brett

THOMAS R. BRETT

UNITED STATES DISTRICT JUDGE

APPENDIX F

IN THE DISTRICT COURT IN AND FOR

CREEK COUNTY, SAPULPA DIVISION,

STATE OF OKLAHOMA

ULRICH WALDEMAN YOUNG, a Minor, )

NORBERT NELSON YOUNG, and CHAR- )

LOTTE MARIE YOUNG, and GLENN O.

YOUNG in person and as the Adminis-

trator of tie Estate of Thomas Alexander

Young, and Father and next friend of

Ulrich Waldemar Young and Norbert

Nelson Young,

Plaintiffs, No. C-79-301

vs.

FIDELITY UNION LIFE INSURANCE

COMPANY, a stock company, Dallas,

Texas, JAMES M. STURDIVANT,

GABLE, GOTWALS, RUBIN, FOX,

JOHNSON & BAKER, and GLEN RINE-

HART, as Agents and Attorneys,

Defendants.

REMOVAL PETITION AND REMOVAL BOND

COME NOW the defendants, the Fidelity Union Life

Insurance Company, James M. Sturdivant, and Gable, Got-

wals, Rubin, Fox, Johnson & Baker, and file herewith the

Removal Petition and Removal Bond filed in the United

States District Court for the Northern District of Oklahoma,

on October 5, 1979, styled as above.

(s) Elsie Draper

GABLE, GOTWALS, RUBIN, FOX,

JOHNSON & BAKER

20th Floor, Fourth National Bldg.

Tulsa, Oklahoma 74119

918/582-9201

Attorneys for Defendants

ee ee —

APPENDIX G

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

[Filed January 30, 1976]

CHARLOTTE MEIER YOUNG, in person )

and es Assignee in trust for her minor

sons, Norbert Nelson and Ulrich Walde-

mar Young,

Plaintiff as Respondent,

vs. No. 76-C-30

FIDELITY UNION LIFE INSURANCE

COMPANY, a stock company, Dallas,

Texas,

— —ů— —ꝛ —ꝛ⏑M —2—yV: —ꝛ4ꝛ-⏓ ——

Defendant as Petitioner,

PETITION FOR REMOVAL

TO: THE HONORABLE JUDGES OF THE UNITED

STATES DISTRICT COURT FOR THE NORTH-

ERN DISTRICT OF OKLAHOMA

Comes now the Defendant, FIDELITY UNION LIFE

INSURANCE COMPANY, a stock company, and for its

petition for removal respectfully shows:

1. On January 13, 1976, an action was commenced

against petitioner, FIDELITY UNION LIFE INSURANCE

COMPANY, a stock company, in the District Court of

Creek County, Oklahoma, entitled “Charlotte Meier Young,

in person and as Assignee in trust for her minor sons, Nor-

bert Nelson and Ulrich Waldemar Young, Plaintiff, v. Fi-

delity Union Life Insurance Company, a stock company,

Dallas, Texas, Defendant”, being Cause No. C-76-14 in said

Court. Thereafter, the Plaintiff in said action caused to

be issued a summons out of the District Court of Creek

County, Oklahoma, which summons and a copy of the

Plaintiff's ccmplaint were served upon The Honorable Ger-

ald Grimes, State Insurance Commissioner for the State

{[APPENDIX)

of Oklahoma, as statutory service agent for FIDELITY

UNION LIFE INSURANCE COMPANY, a stock company,

on January 14, 1976, requiring answer on or before Febru-

ary 12, 1976. Thereafter, said summons and complaint were

forwarded by The Honorable Gerald Grimes, State Insur-

ance Commissioner, to FIDELITY UNION LIFE INSUR-

ANCE COMPANY, a stock company, same being received

on January 16, 1976. Full, true, and correct copies of the

complaint, summons, and letter of transmitial from the

State Insurance Commissioner to FIDELITY UNION LIFE

INSURANCE COMPANY, a stock company, are hereto

attached, which constitute all of the pleadings, process,

and orders served upon petitioner in such action.

2. The above described action is one of which this

court has original jurisdiction under the provisions of Title

28, United States Code, Section 1332, and is one which may

be removed to this court by petitioner, Defendant herein,

pursuant to the provisions of Title 28, United States Code,

Section 1441, in that it is a civil action wherein the matter

in controversy exceeds the sum of Ten Thousand Dollars

($10,000), exclusive of interest and costs, and is between

citizens and residents of different states. At the time this

acticn was commenced, the Plaintiff was and still is a citi-

zen and resident of the City of Sapulpa, Creek County,

State of Oklahoma, and the Defendant, at the time of com-

mencement of this action, was and still is a stock company

organized under the Texas Laws, with its principal office

and place of business located at Dallas, Texas, by reason

whereof there is a complete diversity of citizenship be-

tween Plaintiff and Defendant in said action.

3. Petitioner herewith files a bond with good and

sufficient surety conditioned, as provided by Title 28, United

States Code, Section 1446(d) that it will pay all costs and

disbursements incurred by reason of this removal proceed-

ing should it be determined that the case was not remov-

able or was improperly removed. |

3g

[APPENDIX)

WHEREFORE, petitioner, FIDELITY UNION LIFE

INSURANCE COMPANY, a stock company, respectfully

prays that the above action now pending against it in the

District Court of Creek County, Oklahoma, be removed

therefrom to this court.

(s) Jim M. Sturdivant

James M. Sturdivant for

GABLE, GOTWALS, RUBIN, FOX,

JOHNSON & BAKER

2010 Fourth National Bank Bldg.

Tulsa, Oklahoma

(918) 582-9201

Attorneys for Defendant and Petitioner,

FIDELITY UNION LIFE INSURANCE

COMPANY, a stock company

STATE OF OKLAHOMA )/(

)( ss.

COUNTY OF TULSA 50

James M. Sturdivant, of lawful age, being first duly

sworn on oath states:

That he is the attorney for the Defendant, FIDELITY

UNION LIFE INSURANCE COMPANY, a stock company,

petitioner herein, and makes this affidavit for the reason

that the Defendant is not a resident of Tulsa County and

is absent therefrom; that affiant has read the foregoing

Petition for Removal, is familiar with the contents thereof,

(APPENDIX) “

and believes that the facts therein set forth are true and

correct.

(s) Jim M. Sturdivani

James M. Sturdivant

Subscribed and sworn to before me this 30th day of

January, 1976.

(s) Dorothy A. Balis

Notary Public

My Commission res:

6-24-79

APPENDIX H

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

[Filed November 6, 1979]

ULRICH WALDEMAR YOUNG, a Minor, )

NORBERT NELSON YOUNG and

CHARLOTTE MARIE YOUNG, GLENN

O. YOUNG, IN PERSON AND AS THE

ADMINISTRATOR OF THE ESTATE OF

THOMAS ALEXANDER YOUNG AND

FATHER AND NEXT FRIEND OF UL-

RICH WALDEMAR YOUNG AND NOR-

BERT NELSON YOUNG,

Plaintiffs,

1

VS.

FIDELITY UNION INSURANCE

COMPANY, a stock company, Dallas,

Texas, JAMES M. STURDIVANT,

GABLE, GOTWALS, RUBIN, FOX,

JOHNSON & BAKER, and GLEN RINE-

HART, AS AGENT AND ATTORNEYS,

Defendants.

ll ee ee ee

PLAINTIFFS WITHDRAWAL OF DISMISSAL

AND MOTION TO REMAND

to minute order of the Honorable H. Dale

Cook, U. S. District Judge, entered under date of October

24, 1979, plaintiffs confess and agree to defendants’ Motion

to Strike Dismissal and in lieu thereof move to remand this

cause to the District Court of Creek County, from which

the same was unlawfully and illegally removed in violation

of the laws and statutes of the United States. (See 28

U.S.C. 1441.)

(s) Glenn O. Young

Glenn O. Young, pro se

and Attorney for Plaintiffs.

APPENDIX I

[Page 3 of Brief of Appellants’ in the United States

Court of Appeals Tenth Circuit,

Dated November, 1980]

. In event plaintiffs contentions that the Court erred

in overruling their Motion to Remand is sustained, consid-

eration of all other issues will, of course, be irrelevant

since if issued without jurisdiction, such determinations

are without binding force or effect and need not be here

further considered or adjudicated save by an order to va-

cate for want of jurisdiction.

POINTS AND ISSUES

I

There was an absence of feders! jurisdiction in the

U. S. District Court for the Northern District of Oklahoma,

and for said reason, the trial judge erred in summarily

overuling and denying Appellants’ Motion to Remand.

Said judgment advanced as res judicata is void upon the

face of the record for want of federal jurisdiction to render

the same.

The Trial Court erred in granting Summary Judgment

dismissing plaintiffs’ claims against defendant attorneys,

fees claimed in favor of Fidelity on its Cross-Petition.

A.

For want of jurisdiction of any Cross-Petition or Mo-

tion to Dismiss.

For failure of evidence to show that attorneys fees

allowed Fidelity were just, due and unpaid.

[APPENDIX)

The Trial Court erred in finding plainuffs’ evidence

insufficient under the laws of Oklahcma to state a cause

of action for fraud and deceit.

A.

The Trial Court disregarded law on fraud.

B.

An insurance company may not demand and collect

premiums on a policy of insurance for a period during

which it assumes no risks. The delivery of the policy was

pre-requisite to its effectiveness and therefore the date from

which premiums were earned and due.