FILED

Dec. 1, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

TENNESSEE FARMERS MUTUAL )

INSURANCE COMPANY, )

)

Plaintiff/Appellee, )

) Appeal No.

) 01-A-01-9505-CV-00190

VS. )

) Lawrence Circuit

) No. C 13595

BILLY WAGNER, and wife, )

MONA G. WAGNER, )

)

Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CIRCUIT COURT OF LAWRENCE COUNTY

AT LAWRENCEBURG, TENNESSEE

THE HONORABLE WILLIAM B. CAIN, JUDGE

PAUL B. PLANT

HARWELL, PLANT & CHEATWOOD

225 MAHR AVENUE

P. O. Box 399

Lawrenceburg, Tennessee 38464

Attorney for Plaintiff/Appellee

CHARLES W. HOLT, JR.

BOSTON, BATES & HOLT

235 Waterloo Street

P. O. Box 357

Lawrenceburg, Tennessee 38464

Attorney for Defendant/Appellant

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J.

LEWIS, J.
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O P I N I O N

The issues in this appeal are (1) whether the misrepresentations in an

application for insurance made the policy void as to the applicant and (2) whether the

insurance was void as to the appellant's wife, who did not sign the application. The

Circuit Court of Lawrence County granted summary judgment to the insurance

company. We affirm.

I.

In December of 1988 Billy Wagner applied for insurance in his and his

wife's joint names to cover a dwelling they owned in Lawrence County. Although Mrs.

Wagner was present, she did not answer any of the questions on the application and

did not sign it. In response to a question on the form asking if the applicant had ever

had any fire, theft, or liability loss, Mr. Wagner answered "no". In fact, Mr. Wagner

had had several fire and theft losses, some as recent as 1985. Most of the losses

were covered by insurance.

After the dwelling was damaged by fire in June of 1992, the insurance

company refused to pay the claim and brought this action for a declaratory judgment.

The trial court held that there were no genuine issues of fact and that the insurance

company had no liability to Mr. and Mrs. Wagner.

II.

It is well established in this state that material misrepresentations in an

application for insurance will void the policy. Loyd v. Farmers Mutual, 838 S.W.2d 542

(Tenn. App. 1992); Milligan v. MFA Mutual Insurance Co., 497 S.W.2d 736 (Tenn.
- 3 -

App. 1973). The legislature, however, has provided that insurance companies may

void a policy only if the misrepresentation is made with the actual intent to deceive,

or if it increases the risk of loss. Tenn. Code Ann. § 56-7-103.

Whether a misrepresentation increases the risk of loss is a question of

law, Billington v. Crowder, 553 S.W.2d 590 (Tenn. App. 1977), and we have held that

a misrepresentation that influences the judgment of the insurer in making the contract

increases the risk of loss within the meaning of the statute. Seaton v. National

Grange Mutual Insurance Co., 732 S.W.2d 288 (Tenn. App. 1987); Sloop v. Mutual

of Omaha Ins. Co., 55 Tenn. App. 656, 404 S.W.2d 265 (1966). The uncontradicted

proof filed in support of the motion for summary judgment in this case supports a

conclusion that the insurer relied on the information in the application, and that the

information influenced the insurer's judgment in deciding to issue the policy.

III.

a. Mr. Wagner

There can be no doubt that the trial judge properly granted summary

judgment to the insurance company on Mr. Wagner's claim.

b. Mrs. Wagner

Since Mrs. Wagner did not answer the questions on the application (she

was not even asked) and did not sign it, she argues that the misrepresentations do

not bar her right to recover under the policy. In her affidavit she says that she and Mr.

Wagner married in 1986 and that she was not aware of Mr. Wagner's prior loss

history.
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We think, however, that the misrepresentations in the application defeat

Mrs. Wagner's rights under the policy as well. In 43 Am. Jur. 2d Insurance § 1038 the

text writer states a general proposition that "In the absence of a contract or statutory

provision to the contrary, an insured is bound by representations contained in an

application signed by his own duly authorized agent." While this rule of law is most

often applied to situations where the agent misrepresents facts in reference to the

principal, we think it also applies to the agent's statements about himself where the

principal and agent jointly own the insured property and the agent signs the

application securing coverage for both.

There can be no doubt that Mr. Wagner was acting as the agent for Mrs.

Wagner. The application was in their joint names, but Mr. Wagner alone signed it.

The policy issued in their joint names was, therefore, obtained through the agency

of the husband. Either Mr. Wagner was acting as Mrs. Wagner's agent or the policy

should have been issued to Mr. Wagner alone.

If Mr. Wagner was not acting as Mrs. Wagner's agent, there is a related

doctrine that would effectively defeat her right to recover. In Woodmen of the World

Life Insurance v. Kinnaird, 874 S.W.2d 47 (Tenn. App. 1993), this court held that the

fraud of a beneficiary to a life insurance policy would allow the insurer to avoid

payment under the policy (and defeat the claims of the insured's heirs) even though

the insured herself had no part in the fraud. This court quoted at length from

Columbian Mutual Life Insurance Company v. Martin, 175 Tenn. 517, 136 S.W.2d 52

(1940), which established that innocent persons could not avail themselves of an

advantage gained by the fraud of another unless the innocent person had given value

or had materially changed his or her position in reliance on the transaction. (For the

rule applied to contracts generally see Restatement of the Law of Contracts § 477).

In this case there is no evidence that Mrs. Wagner gave any consideration separate
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and apart from that given jointly with Mr. Wagner. Therefore, she could not claim a

status superior to his.

The judgment of the trial court is affirmed and the cause is remanded

to the Circuit Court of Lawrence County for any further proceedings necessary. Tax

the costs on appeal to the appellants.

_________________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

SAMUEL L. LEWIS, JUDGE