Carroll v. Jackson National Life Insurance

Sanders, Chief Judge (concurring):

In the first place, I would state the issue differently or, at least, more elaborately. In my opinion, we are called upon to decide whether the insurance company must prove a causal connection between the misrepresentation by the deceased *496and his death or whether, on the other hand, the company must prove only that it would not have issued the policies if the deceased had not misrepresented the state of his health. It seems to me that the company should be required to prove only the latter, not the former.

Quite obviously, in deciding whether to issue a life insurance policy, the insurance company must take into account the health of the person applying for the policy. Where an applicant misrepresents the state of his health, it seems to me only fair that the company should not be held liable, if it can prove it would not have issued the policy if the applicant had told the truth. I am, nevertheless, persuaded to affirm.

I am compelled to reach this result by a series of cases decided by our Supreme Court and this Court: Cooper v. McDevitt & Street Co., 260 S.C. 463, 196 S.E. (2d) 833 (1973), Givens v. Steel Structures, Inc., 279 S.C. 12, 301 S.E. (2d) 545 (1983) and McLeod v. Piggly Wiggly Carolina Co., 280 S.C. 466, 313 S.E. (2d) 38 (Ct. App. 1984). All three cases involve claims for workers’ compensation, and each presents the issue of what an employer must prove to escape liability for compensation, based on a misrepresentation by an applicant for employment.

In Cooper, the employer denied liability on the ground that the injured employee had intentionally misrepresented a previous back injury. The Industrial Commission rejected the defense. The employer appealed. The trial judge reversed, and the employee appealed. The Supreme Court reversed the decision of the trial judge. According to the Court, there was “ample evidence to sustain the finding[s] of the trial judge that the appellant was guilty of fraud in securing his employment through false representation as to his previous back injury and that the employer would not have hired him had he not misrepresented his physical condition.” Cooper, 260 S.C. at 469, 196 S.E. (2d) at 835. Despite these findings, however, the Court required that the employer also prove “a causal connection between the false representation made by the appellant and his subsequent injury.” Id. at 469, 196 S.E. (2d) at 836. Givens and McLeod are in accord. See also Ferguson v. R.F. Moore Constr. Co., 298 S.C. 457, 381 S.E. (2d) 496 (Ct. App. 1989) (also in accord but deciding a somewhat different issue).

*497Although these cases are factually different, they are, in my opinion, logically indistinguishable. We are, of course, bound by the decisions of our Supreme Court. Fowler v. Canal Ins. Co., 300 S.C. 420, 389 S.E. (2d) 301 (Ct. App. 1990). If an employer is required to prove a causal connection between a misrepresentation made by an applicant for employment and the injury thereafter suffered by the applicant, there is no logical reason not to require an insurance company to prove a causal connection between a misrepresentation made by an applicant for life insurance and the subsequent death of the applicant.

For these reasons, I am convinced the judgment of the Circuit Court must be affirmed.