Frances Krauss v. Manhattan Life Insurance Company of New York

VAN GRAAFEILAND, Circuit Judge,

concurring:

Because Illinois appears firmly committed to the majority view that the scope of coverage of an insurance policy cannot be enlarged by waiver or estoppel,1 this Court’s opinion may not be without its critics. However, since my colleagues’ holding is so eminently just, I am satisfied that, under the facts of this case, the Illinois courts would reach the same conclusion. Accordingly, I concur in the result.

Section 843(d) of the Illinois Annotated Statutes, which is patterned after the National Association of Insurance Commissioners Model Group Life Insurance Bills of 1917 and 1956, W. Meyer, Life and Health Insurance Law § 20:2 at 637, 872 app. B, 875 app. C (1972), provides that every group policy delivered in Illinois must contain a provision that “the company will issue to the employer ... for delivery to the employee .. . whose life is insured under such policy, an individual certificate setting forth a statement as to the insurance protection to which he is entitled .... ” Section 14 of appellee’s policy incorporates such a provision.

Appellee’s certificate, which stated that the decedent Hyman Krauss was insured for $100,000, “subject to the terms and conditions of the Group Policy”, paid only lip service to this statute. A statute should be interpreted in such a manner as to give it meaning, Rosado v. Wyman, 397 U.S. 397, 415, 90 S.Ct. 1207, 1219, 25 L.Ed.2d 442 *875(1970); an interpretation which emasculates it should be avoided if possible, Marsano v. Laird, 412 F.2d 65,70 (2d Cir.1969). Section 843(d) has meaning and purpose only- if the amount of insurance coverage is set forth fully and accurately in the certificate. The $100,000 figure contained in appellee’s certificate was not just uninformative and without significance, it was in fact deceptive. “We perceive no persuasion in respondent’s proposal that the certificate may misrepresent the insurance protection without redress so long as it refers the holder to the master policy.” Bauer v. Insurance Co. of North America, 351 F.Supp. 873, 875 (E.D. Wis.1972) (quoting Riske v. National Casualty Co., 268 Wis. 199, 207, 67 N.W.2d 385 (1954)). See also Prudential Insurance Co. v. Clauson, 296 F.2d 76, 79 (1st Cir.1961).

If the $100,000 figure in appellee’s certificate did not correctly set forth the insurance protection to which Krauss was entitled, it at least described the outer limits of such coverage. Under the terms of the policy, decedent’s employer paid premiums on $100,000, the amount of life insurance which the policy itself said was “in force”. Application of the doctrines of waiver and estoppel will not enlarge the scope of this coverage; it will simply prevent the amount of insurance “in force” from being reduced by post-claim underwriting adjustments.

. Commonwealth Insurance Co. v. O. Henry Tent & Awning Co., 287 F.2d 316, 319 (7th Cir.), cert. denied, 368 U.S. 826, 82 S.Ct. 45, 7 L.Ed.2d 30 (1961); Simmons v. Continental Casualty Co., 285 F.Supp. 997, 1004 (D.Neb. 1968), aff’d, 410 F.2d 881 (8th Cir.1969); Spence v. Washington National Insurance Co., 320 Ill.App. 149, 50 N.E.2d 128 (1943).