#### Cynthia Kay BUNDICK v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY.

No. MO-78-CA-44.

United States District Court, W. D. Texas, Midland-Odessa Division.

May 12, 1980.

*585James McDonald, Crane, Tex., Bill Alexander, Odessa, Tex., for plaintiff.

Gloria Svanas, Odessa, Tex., for defendant.

ORDER DENYING DEFENDANT’S MOTION FOR NEW TRIAL

SUTTLE, Senior District Judge.

Pending is the Defendant’s motion for a new trial. For the following reasons, the motion will be denied.

In order to prevail on a defense of material misrepresentation, an insurer must establish by a preponderance of the evidence that the false representation was made willfully and with the intent to deceive or defraud the insurer or was made willfully and with the intention of inducing the insurer to issue the policy. *See Southern Farm Bur. Life Ins. Co. v. Reed,*563 S.W.2d 634, 636 (Tex.Civ.App. — Eastland 1978, writ ref’d n. r. e.). *See*also *Occidental Life Ins. Co. of Cal. v. Bob LeRoy’s Inc.,*413 F.2d 819, 823 (5th Cir.), *cert. denied,*396 U.S. 939,90 S.Ct. 373,24 L.Ed.2d 241 (1969). The Defendant’s assertion that the law is otherwise is without merit.

In the course of its charge to the jury, the court gave the following instruction:

> A misrepresentation in an application for insurance is not material to the risk simply because, had the true facts been known, the insurer would have charged a higher premium for the policy issued.

Despite the Defendant’s protests, this instruction does comport with Texas law. *See Harrington v. Aetna Casualty and Surety Company,*489 S.W.2d 171, 177-78 (Tex.Civ.App. — Waco 1973, writ ref’d n. r. e.).

The court also instructed the jury as follows:

> Even a material misrepresentation does not defeat recovery if it is innocently made, in good faith.

This instruction also comports with Texas law. *See General American Life Ins. Co.*v. *Martinez,*149 S.W.2d 637, 639 (Tex.Civ.App. —El Paso 1941, writ dism’d judgm. cor.); *Manhattan Life Insurance Company v. Hark-*
      *586
      *rider,*396 S.W.2d 207, 215 (Tex.Civ.App.— Austin 1965, writ ref’d n. r. e.); *Roosth v. Lincoln National Life Insurance Company,*269 F.2d 171,179 (5th Cir.), *cert. denied,*361 U.S. 917, 80 S.Ct. 262, 4 L.Ed.2d 186 (1959), *on subsequent appeal,*306 F.2d 110 (5th Cir. 1962), *cert. denied,*372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963).

The awarding of 6% prejudgment interest on the $30,000 policy limits is in accordance with Texas law. The Plaintiff is entitled to such interest from the date the Defendant denied liability. *See Duffer v. American Home Assurance Company,*512 F.2d 793, 799-801 (5th Cir. 1975). *See*also *Rogers v. Aetna Casualty and Surety Co.,*601 F.2d 840, 845-46 (5th Cir. 1979).*

Accordingly, the Defendant’s motion for a new trial is denied.

The Plaintiff is not entitled to any pre-judgment interest on the $3,600 penalty or the $10,000 attorney’s fees; nor is the Plaintiff entitled to post-judgment interest on the $10,000 attorney’s fees. *Duffer v. American Home Assurance Company, supra,*512 F.2d at 800. *Contra: Freeman v. Crown Life Ins. Co.,*580 S.W.2d 897, 902 (Tex.Civ.App. — Texarkana 1979, writ refd n. r. e.) and cases cited in *Duffer v. American Home Assurance Company, supra,*512 F.2d at 800. If the Defendant desires to alter the judgment as to the date the prejudgment interest on the $30,000 policy limits starts running or as to post-judgment interest, it may make an appropriate motion. However, it may be too late for the court to entertain such a motion. *See*Rule 59(e), F.R.Civ.P.