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Insured must pay premium to effect insurance: if judge doesn't believe you--you lose.

Mark Brooks appealed from a judgment of the Superior Court in favor of Massachusetts Mutual Life Insurance Company (MassMutual) following a jury-waived trial. At trial, Brooks asserted that MassMutual made misrepresentations to him regarding his obligation to make premium payments on a disability insurance policy. In Brooks v. Massachusetts Mutual Life Insurance Co., 12-P-1843 (Mass.App. 01/08/2014) the Massachusetts Appellate Court was asked to reverse the decision of the trial court because it failed to apply Brooks' testimony.

FACTS

Brooks applied for disability insurance in November, 2000. The application indicated that the policy would take effect only if the first full premium was paid. After receiving Brooks's application, the agent sent him a form for payment of the premium by payroll deduction. That form indicated that deductions would start on the first pay period in January, with 'JANUARY' in capital letters. Brooks signed and returned the form, and on December 8, the agent sent Brooks a copy of the policy. Later that month, however, Brooks submitted his resignation and was terminated from his position; no salary deductions were made, nor did Brooks make any premium payments by other means.

The parties gave conflicting testimony about the ensuing events. Brooks testified that he made numerous telephone calls to the MassMutual customer service center between December, 2000, and May, 2001, inquiring how to pay his insurance premiums and was told to wait until he received a bill. However, a witness for MassMutual testified, based on the company's computer telephone records, that these calls never occurred. In addition, Brooks testified that he never received a January 4, 2001, letter telling him to select an alternative payment method.

In response, a witness for MassMutual testified that Brooks mailed materials to MassMutual in the prepaid envelope included with the letter and payment selection form mailed to him. The judge did not credit Brooks' testimony.

ANALYSIS

Brooks's claims that the judge's findings in the present case are erroneous rest on his contention that the judge erroneously declined to credit his testimony. It is settled law across the country that questions of the weight and credibility of the evidence are the province of the trial judge or jury. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be erroneous. In the present case, the judge's the court of appeal noted that the judge's findings were supported in the evidence the judge found credible.

Brooks's equitable estoppel claim similarly depends on his factual assertions regarding MassMutual's representations. Because he did not demonstrate that such representations occurred, the claim fails.

Brooks also argues that the trial judge was biased by defense counsel's question about pornography found on Brooks's computer at another employer, a question to which the judge sustained an objection. Because Brooks did not raise the issue of bias below, the court considered it waived. Similarly, to the extent that Brooks's brief alleges breach of contract or violation of Massachusetts insurance statutes, those arguments are being made for the first time on appeal and are likewise waived.

ZALMA OPINION

It is amazing that this suit was filed. It is more amazing that it went to an appellate court. Finally, why an appellate court took the case seriously enough to write an opinion and not sanction Brooks and his lawyer for bringing an action seeking insurance when the insured admittedly never paid a premium is an amazing action by an appellate court to a litigant.

It makes no sense to bring a lawsuit seeking insurance benefits when no premium had been paid and when it is based upon the uncorroborated testimony of the plaintiff that, when presented to a judge, it was not believed.
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Title Annotation:ON MY RADAR
Author:Zalma, Barry
Publication:Insurance Advocate
Date:Jan 27, 2014
Words:613
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