dissenting:
I respectfully disagree with the majority as to its ruling both as to the motion for summary judgment, count I, and the motion to dismiss, count II. As the majority states, there was undisputed information before the court indicating the informal nature of Marcella’s relationship to the business. Reference is made to her principal occupation which appears likely to have been a homemaker, the fact that she signed joint Federal income tax returns for the years 1982 and 1983 prepared by an accountant which listed her occupation as a homemaker and lack of compliance by her to work on a regularly scheduled basis for a minimum of 30 hours per week. In Bakkensen v. John Hancock Mutual Life Insurance Co. (1960), 222 Or. 484, 353 P.2d 558, the court held that a question of fact was presented as to whether a fire watcher for a firm engaged in a logging operation could include time during which they were subject to call as time worked within the meaning of a group disability policy requiring an employee to work 20 hours a week in order to be covered. The court in that case held further that the question of fact existed even if the fire watchers were not paid for the time they were subject to call.
Just as important are the actions of defendant. The defendant accepted premiums from the plaintiff. The wife was covered under the group health insurance policy with the same company. It was clear that the same eligibility requirements for both the group health and the group life applied, i.e., be under 70 years of age, have employment with the insured as the employee’s principal occupation, be regularly scheduled to work for a minimum of 30 hours per week, and be listed on the employer’s records for social security and withholding tax purposes. The plaintiff was also required to purchase the group life insurance in order to obtain the Blue Cross-Blue Shield accident and health benefits.
The defendant, knowing the terms of its participation agreement, paid on medical claims of Marcella pursuant to the group accident and health benefits insurance policy. These are issues of fact sufficient, to deny the motion for summary judgment, count I.
I would find that the allegations of count II are sufficient to allege a misrepresentation or concealment of a material fact. The allegations of count II were sufficient to allege conduct, by the party against whom the estoppel is alleged, constituting a misrepresentation or concealment of material facts; that the defendant knew that the plaintiff’s wife would not be covered by the insurance; that the plaintiff did not know the representations were false either at the time they were made or at the time they were acted upon when he purchased the policy; and that the defendant should have expected his conduct or representations would be acted upon by the plaintiff. The plaintiff did rely upon the representations and certainly the plaintiff is in a position of prejudice if the defendant against whom the estoppel is alleged is permitted to deny the truth of the representations made.
I would deny the defendant’s motion to dismiss count II. The majority states that the depositions and testimony which dealt with the ruling on the motion for summary judgment could not be used by the plaintiffs in support of count II. As stated by the majority, count II must be adjudged on the basis of its allegations. The allegations of count II are sufficient to sustain against the motion to dismiss and happenstance shows by the hearing on the motion for summary judgment that this is certainly true.