Dyer v. United States

GRONER, C. J.

This is an action begun by appellants, beneficiaries, to recover on two policies of War Risk Insurance issued to Everett Dyer, a soldier in the first World War. The District Court dismissed the complaint on the ground that suit for recovery was barred by the six year statute of limitations.1 The record discloses that the policies were issued to insured during his military service, which ended May 21,- 1919. The policies lapsed July 3, 1919, for non-payment of premium.

The contention on the merits is that at the time the policies lapsed the insured was suffering from a compensable disability for which he had not received compensation and that there was a sufficient amount due him at the time of death to revive the policies under Section 305 of the World War Veterans’ Act2 and to maintain them until *15his death. For the reasons hereinafter stated we do not need to discuss that aspect of the case.

The mother of the deceased soldier, who was one of the beneficiaries under the policies, through her attorney, wrote the Veterans’ Bureau on December 31, 1924, advising of the soldier’s death on May 18, 1922, and requested reinstatement “of Life Insurance which he carried at the time of his discharge from the army,” and asked that the letter should be considered as a sufficient application to save the claim. The letter also asked the Bureau to mail the necessary blanks upon which to make formal application “if Mrs. Dyer is entitled to have this insurance reinstated.” The Bureau answered the letter January 31, 1925, informing counsel of the departmental record in relation to disability allowances to the veteran and his dqpendents and of the fact that there had then accrued and was payable to his estate some $490, which upon receipt of letters of administration would be paid to his administrator. But in reply to the request for information as to the status of the soldier’s insurance and for blanks upon which to make claim for reinstatement, the Bureau said: “You are still further advised that the insurance of the above captioned, (the soldier) lapsed for non-payment of premiums July 3, 1919, and therefore, insurance is not payable.” Thereafter no further action was taken by any of appellants until September 26, 1932, when a formal claim for the insurance money was made and again denied. And this in turn was followed by another letter to the Bureau dated January 27, 1939, requesting reconsideration in the light of § 305 of the Veterans’ Act; and when this was denied, the pending suit followed.

Both parties agree, we think correctly, that the attorney’s letter of December 31, 1924, was a claim for insurance. They agree that the decisive question for consideration on this appeal is whether the Bureau’s letter of January 31, 1925, constituted a denial of this claim. If it did constitute a denial, admittedly, the statute of limitations applies and the order of the court below must be affirmed. Appellants insist, however, that the sentence in the Bureau's letter which we have quoted was not responsive to the letter request for reinstatement, nor to the application therein for forms and information regarding the status of the claim, and hence was not a denial but left the claim pending and undecided. But we think this position is not tenable. The letter of appellants’ counsel stated that counsel had been asked by the soldier’s mother “to make application for a reinstatement of Life Insurance which he [the soldier] carried at the time of his discharge from the army,” and ended with a request that the Bureau mail “the necessary blanks upon which to make the formal application if Mrs. Dyer is entitled to have this insurance reinstated.” The Bureau’s reply that the insurance had lapsed for nonpayment of premiums and therefore that no insurance was payable was, we think, an unequivocal answer to the query whether there was existing or reinstatable insurance, and likewise a definite “denial” of any right to make claim thereto. In this respect it was both responsive to the request and a denial of it. And that the position of the Bureau in this regard was so understood by claimants seems to us perfectly clear from the fact that nothing more happened in relation to the claim from that time for a period of seven years. It would be trifling with words, we think, to say that the Bureau’s answer to the request for blank forms on which to file a claim, — viz.: that the policy had lapsed on a given date and therefore no insurance existed — was not enough to constitute a denial of the claim and hence to create a disagreement within the meaning of the statute. And in this view of the case, admittedly, the limitation of the statute is a complete bar to the action. See Burns v. United States, 2 Cir., 101 F.2d 83; United States v. Kelley, 8 Cir., 110 F.2d 922; Simmons v. United States, 4 Cir., 110 F.2d 296; Maxwell v. United States, 7 Cir., 141 F.2d 139; Neely v. United States, 4 Cir., 115 F.2d 448; United States v. Wallace, 10 Cir., 123 F.2d 484, all of which sustain the conclusion we have reached.

Appellants urge that the doctrine of “continuing negotiations” applied by *16this court in Rosario v. United States, 70 App.D.C. 323, 106 F.2d 844, is equally applicable to the present case. We do not think its application is justified where, as here, a period of seven years has elapsed between the filing .of the first and second claims, and there is nothing to show that the Bureau, or any of the parties during that interval, considered the claim pending. See Simmons v. United States (on rehearing), 111 F.2d 618. Nor will the subsequent filing of other claims after the statutory period raise the bar to suit. Roskos v. United States, 3 Cir., 130 F.2d 751.

Affirmed.

§ 19, World War Veterans’ Act, 1924, as amended, 38 U.S.C.A. § 445:

“No suit on’yearly renewable term insurance shall be allowed under this section unless the same shall have been brought within six years after the right accrued for which the claim is made or within one year after July 3, 1930, whichever is the later date, * * * * ; Provided further, That this limitation is suspended for the period elapsing between the filing in the Veterans’ Administration of the claim sued upon and the denial of said claim by the Administrator of Veterans’ Affairs.”

§ 305, World War Veterans’ Act, 1924, as amended, 38 U.S.C.A. § 516: “Where any person has heretofore allowed his insurance to lapse, or has canceled or reduced all or any part of such insurance, while suffering from a compensable disability for which compensation *15was not collected and dies or lias died, or becomes or has become permanently and totally disabled and at the time of such death or permanent total disability was or is entitled to compensation remaining uncollected, then and in that event so much of his insurance as said uncoEected compensation, * * * would purchase if applied as premiums when due, shall not be considered as lapsed s¡t $ $ »