dissenting.
The basis for the majority decision in this case is that the application for insurance constituted a condition precedent to coverage. The application was only efficacious as a condition precedent until it became a part of the policy by operation of law. ORS 743.045(1) reads:
«* * * where the contract is made pursuant to a written application therefor, if the insurer delivers a copy of such application with the policy to the insured, thereupon such appliction shall become a part of the insurance policy * *
That is exactly what happened in this case. The life insurance company delivered its policy to the insured, the premium was paid and the application became a part of the insurance policy. As such, the provision in the application that reads
*176“* * * the Company shall incur no liability under this application until it has been received and approved, a policy issued and delivered and the full first premium specified in the policy has actually been paid to and accepted by the Company, all while the health, habits and any other condition relating to each person proposed for insurance are as described in this application * * *.”
is directly contrary to the policy provision that the policy became effective January 1,1981, one day before this insured learned of his terminal illness.
Whenever there is an inconsistency in an insurance policy, the construction most favorable to the insured will be applied. This has been the consistent law of this state for 80 years:
“* * * [A]s between inconsistent, conflicting, and incongruous provisions, of doubtful and ambiguous significance, in a policy of insurance, it being manifest that the form and all the necessary conditions are the statements [of the insurer], the construction most favorable to the assured will be adopted and applied * * *.” Stinchcombe v. N. Y. Life Ins Co., 46 Or 316, 322, 80 P 213 (1905).
I dissent.