Grosse v. Protective Life Insurance

STEINMETZ, J.

(dissenting). The majority has ignored a basic rule of statutory interpretation. If a statute is clear on its face, courts do not look to the history of the statute when interpreting it. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 473, 464 N.W.2d 654 (1991).

This court interpreted the predecessor to sec. 632.50, Stats., sec. 209.07, very broadly against insurance companies in Platke v. John Hancock Mut. Life Ins. Co., 27 Wis. 2d 1, 133 N.W.2d 277 (1965). This interpretation estopped an insurer from ever asserting the change in condition defense if the insurer's medical examiner issued a certificate of health or its equivalent. In reaction to this decision, the legislature adopted sec. 632.50.

*118Section 632.50, Stats., states:

If under the rules of any insurer issuing life insurance, its medical examiner has authority to issue a certificate of health, or to declare the proposed insured acceptable for insurance, and so reports to the insurer or its agent, the insurer is estopped to set up in defense of an action on the policy issued thereon that the proposed insured was not in the condition of health required by the policy at the time of issue or delivery, or that there was a preexisting condition not noted in the certificate or report

This clearly and unambiguously provides that an insurance company is only estopped from asserting a change in condition defense when the insurance company has enacted rules authorizing the medical examiner to issue a certificate of health or to declare the proposed insured acceptable for insurance. In this case, Protective Life has promulgated no such rules. Hence, the trial court properly allowed Protective Life to assert a change in condition defense and to present evidence regarding Mr. Grosse's change in health.

The majority attempts to circumvent the language of the statute by finding the language ambiguous and then examining sources of legislative history. Based on this legislative history, the majority rewrites the statute to estop insurers unless they promulgate rules stating that their medical examiners do not have the authority to bind the company. The majority's interpretation is contrary to the plain language of the statute.

This statute is not ambiguous. What more must the legislature say in order to limit estoppel to situations where the medical examiner acts pursuant to rules of the insurance company, than " [i] f under the *119rules of any insurer issuing life insurance . . ."? Must the legislature say "we really mean it"?

Because the statute is clear and unambiguous on its face, we need not look to legislative history. However, even the legislative history requires a different result than the one reached by the majority. A committee comment, published with sec. 632.50, Stats., in West's Wisconsin Statutes Annotated, explains that the revised version of the statute is intended to estop an insurer only when its medical examiner is acting pursuant to the insurer's rules. "It is made less severe as against the insurer by binding the insurer only if the medical examiner is acting under the insurer's rules."1

In this case, the deceased knew that he had cancer before he paid his first premium and before issue or delivery of the policy. Protective Life did not have rules authorizing its medical examiner to issue a certificate of health or declare Mr. Grosse acceptable for insurance. Therefore, the trial court properly held that Protective Life was not estopped pursuant to sec. 632.50, Stats., from presenting evidence to the jury regarding Mr. Grosse's change in health.

*120I would dissent from the majority opinion and not require the legislature to again change sec. 632.50, Stats., as a reaction to a decision of this court.

I am authorized to state that JUSTICES JON P. WILCOX and JANINE P. Geske join this dissenting opinion.

Contrary to the majority's assertion, my interpretation of sec. 632.50, Stats., will neither eviscerate the statute nor lead to absurd results. Rather, this interpretation will allow an insurance company to decide what weight to place on the decisions of its medical examiners — exactly as this committee note makes clear that the legislature intended. If the insurer promulgates rules stating that its medical examiners have the authority to issue certificates of health or to declare the proposed insured acceptable for insurance, then the insurer will be bound by its medical examiners' decisions. Otherwise, sec. 632.50 will not apply to the insurance company.