Opinion
No. 77-419
Decided May 4, 1978. Opinion modified and as modified petition for rehearing denied June 1, 1978.
In new trial of action on insurance policy after appellate remand and after intervening Supreme Court rulings on the pertinent law, the jury entered verdict for defendant and plaintiff appealed.
Affirmed
1. COURTS — Law of the Case — Not Control — Supreme Court Ruling — Intervenes. The law of the case cannot control when an overruling decision of the Supreme Court intervenes before retrial.
Appeal from the District Court of Adams County, Honorable Abraham Bowling, Judge.
Tallmadge, Tallmadge, Wallace Hahn, C. Thomas Bastien, for plaintiff-appellant.
Phelps, Hall, Singer Dunn, Alan Gary Dunn, for defendant-appellee.
In this action to recover the benefits of two life insurance policies, the trial court initially denied plaintiff's request for a jury trial and, after a trial to the court, entered judgment in favor of defendant insurance company. Plaintiff appealed, and in Jacobs v. Prudential Insurance Co., 35 Colo. App. 423, 533 P.2d 516 (1975), this court held that the trial court's denial of plaintiff's demand for a jury trial was reversible error, and the cause was remanded for a trial to a jury. The retrial resulted in a jury verdict in favor of defendant, and again plaintiff has appealed.
The sole issue presented here is whether the jury was erroneously instructed as to the elements which defendant had to establish in order to avoid payment on the policies. The challenged instruction reads as follows:
"The Defendant, the Prudential Insurance Company of America, is not liable to the Plaintiff, Harold C. Jacobs, on his claim for recovery of the insurance proceeds, if the counterclaim for rescission of the insurance policies is established. This counterclaim is established if you find all of the following have been established by a preponderance of the evidence:
"(1) The Plaintiff's wife, Linda K. Jacobs, failed to disclose facts concerning her past medical history on the applications for insurance, which she had a duty to disclose.
"(2) The non-disclosed facts were material to the issuance of the policies or to the insurance risk undertaken by the Defendant.
"(3) The facts not disclosed on the applications concerned matters which were within the knowledge of Linda K. Jacobs.
"(4) The Defendant had no knowledge of the existence of the non-disclosed facts.
"(5) The failure to disclose was made or practiced with the intention that it should be acted upon by the Defendant.
"(6) The Defendant acted in reliance on the applications for insurance by issuing the insurance policies and suffered resulting damages."
[1] Plaintiff asserts that it was error to omit the requirement that defendant must prove an intent to deceive on plaintiff's part before payment can be avoided. In the recent decisions of Hollinger v. Mutual Benefit Life Insurance Co., 192 Colo. 377, 560 P.2d 824 (1977), and Wade v. Olinger Life Insurance Co., 192 Colo. 401, 560 P.2d 446 (1977), our Supreme Court rejected the "intent to deceive" test in cases involving the avoidance of insurance policies. Nevertheless, plaintiff contends that in the prior appeal of this matter this court held that intent to defraud was required, and that this decision fixed the law of the case, Hollinger, supra, and Wade, supra, notwithstanding. However, we rule that the law of the case cannot control when an overruling decision of the Supreme Court intervenes before retrial. See Ryan v. Mike-Ron Corp., 259 Cal. App. 2d 91, 66 Cal. Rptr. 224 (1968). Accordingly, Hollinger, supra and Wade, supra, were applicable on retrial, and the court did not err when it failed to give the "intent to deceive" instruction.
Judgment affirmed.
JUDGE SMITH and JUDGE KELLY concur.