Waller v. Door County Mutual Insurance

Citations: 256 Wis. 323; 41 N.W.2d 211; 1950 Wisc. LEXIS 328

Court: Wisconsin Supreme Court; February 7, 1950; Wisconsin; State Supreme Court

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The case of Waller v. Door County Mutual Insurance Company revolves around whether a fire insurance policy was in effect at the time of the plaintiff's property loss on February 12, 1948. The plaintiff had a three-year mutual fire insurance policy set to expire on January 28, 1949. On January 8, 1948, the plaintiff requested the cancellation of this policy effective January 10, 1948, expressing a desire to switch to another insurer. The defendant responded on January 11, 1948, acknowledging the cancellation request and advising the plaintiff against switching insurers but did not confirm the cancellation. The plaintiff did not reply to the defendant's correspondence and subsequently obtained a new policy from Northeastern Mutual Fire Insurance Company, which paid for the fire loss. The defendant's secretary provided an affidavit stating that the plaintiff never attempted to withdraw his cancellation request after January 8, 1948. The central issue in the appeal is whether the insurance policy was effectively canceled before the property was destroyed.

On January 10, 1948, the defendant stamped the plaintiff's insurance policy (No. 33281) 'Canceled' after the plaintiff requested its cancellation on January 8, 1948. On February 11, 1948, the defendant issued a check for $10.85 to the plaintiff for unearned premiums, believing the cancellation was confirmed by the lack of response from the plaintiff. The cancellation was effective immediately due to the provisions in the relevant statutes, as no claims were pending against the defendant at that time. An affidavit from Josephine Peffer confirmed the issuance of the check and a letter indicating the assumption of the plaintiff's intent to cancel. The plaintiff received a letter dated February 11, 1948, which he returned along with a proof of loss on February 14, 1948. The legal framework specified that the unconditional surrender of the policy and the cancellation request resulted in the cessation of the defendant's liability. The cancellation of the policy does not depend on the payment of the unearned premium, which is due upon cancellation without affecting the policy's status. Therefore, the cancellation and withdrawal of membership in the insurance policy were deemed complete upon the insurer's receipt of the written notice.

Continuance of the insurance contract by the company would violate statutory requirements, as established in relevant case law. According to section 202.085 of the statutes, the company must refund any excess premium paid over customary short rates upon the insured's demand and policy surrender. This indicates that the refund is contingent upon the insured’s request, and therefore, the typical rule requiring repayment or tender of unearned premiums for cancellation does not apply in this instance. The plaintiff's argument that the defendant is estopped from asserting cancellation is unsubstantiated; the complaint lacks facts to support an estoppel claim. The plaintiff initiated the cancellation of the policy by demanding it in a letter dated January 8, 1948, and returned the policy, effectively canceling it without requiring action from the defendant. Although the defendant sought to have the plaintiff reconsider the cancellation, the plaintiff did not respond and instead procured a new policy elsewhere. The cancellation was not influenced by the defendant's actions, and there is no basis for the plaintiff to claim he was misled or prejudiced. The court affirmed the order.