B-140476, APR. 10, 1962

B-140476: Apr 10, 1962

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 16. YOU STATE THAT IT IS THE POSITION OF THE KANSAS CITY LIFE INSURANCE COMPANY THAT THEY WILL NEITHER REFUND THE AMOUNT IN FULL NOR MAKE AN OFFER IN COMPROMISE AND THAT. THEY STATE THAT THERE IS A POLICY OF INSURANCE EXISTING ON THE LIFE OF ONE CHARLES JOHN MCCOURT. OUR VIEWS AS TO WHETHER THE ALLEGED INSURED EVER EXISTED OR WHETHER THE APPLICATION WAS FRAUDULENT AND ASK THAT WE REVIEW OUR FILES TO DETERMINE WHETHER THERE IS ANY AVAILABLE INFORMATION WHICH YOU DO NOT HAVE. COPY OF WHICH WAS FORWARDED TO YOUR OFFICE WITH THE CERTIFICATE OF INDEBTEDNESS DATED JUNE 29. IT IS CLEAR THAT THE PERSON WHO SIGNED THE APPLICATION FOR INSURANCE NEVER SERVED IN THE UNITED STATES ARMY OR UNITED STATES AIR FORCE.

B-140476, APR. 10, 1962

TO F. RUSSELL MILLIN, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 16, 1962, RELATIVE TO THE ABOVE INDEBTEDNESS. YOU STATE THAT IT IS THE POSITION OF THE KANSAS CITY LIFE INSURANCE COMPANY THAT THEY WILL NEITHER REFUND THE AMOUNT IN FULL NOR MAKE AN OFFER IN COMPROMISE AND THAT, WHILE COOPERATIVE, THEY STATE THAT THERE IS A POLICY OF INSURANCE EXISTING ON THE LIFE OF ONE CHARLES JOHN MCCOURT. YOU REQUEST, IN EFFECT, OUR VIEWS AS TO WHETHER THE ALLEGED INSURED EVER EXISTED OR WHETHER THE APPLICATION WAS FRAUDULENT AND ASK THAT WE REVIEW OUR FILES TO DETERMINE WHETHER THERE IS ANY AVAILABLE INFORMATION WHICH YOU DO NOT HAVE.

AS STATED IN OUR LETTER OF MARCH 17, 1960, B-140476, TO THE KANSAS CITY LIFE INSURANCE COMPANY, COPY OF WHICH WAS FORWARDED TO YOUR OFFICE WITH THE CERTIFICATE OF INDEBTEDNESS DATED JUNE 29, 1960, IN THIS CASE, IT IS CLEAR THAT THE PERSON WHO SIGNED THE APPLICATION FOR INSURANCE NEVER SERVED IN THE UNITED STATES ARMY OR UNITED STATES AIR FORCE. SINCE NOTHING WILL BE PAID ON THE POLICY UNTIL PROOF HAS BEEN SUBMITTED OF THE DEATH OF A PERSON BEARING THE NAME OF CHARLES JOHN MCCOURT, IT SEEMS PROBABLE THAT A PERSON HAVING THAT NAME EXISTED IN 1947, UNLESS THE APPLICATION WAS MADE OUT, SIGNED AND SUBMITTED FOR THE SOLE PURPOSE OF SECURING AN AGENT'S COMMISSION FOR SELLING THE POLICY. IF THE LATTER WERE THE CASE, THE INSURED PROBABLY IS A FICTITIOUS PERSON. ON THE BASIS OF THE FACTS NOW OF RECORD, THERE IS NO WAY OF PROVING WHETHER A PERSON HAVING THE NAME OF CHARLES JOHN MCCOURT, OR SOME OTHER PERSON, SIGNED THE APPLICATION. HOWEVER, SINCE THE PERSON INVOLVED MADE FALSE STATEMENTS IN THE APPLICATION AS TO HIS PLACE OF BIRTH, OCCUPATION, ARMY SERVICE AND NATIONAL SERVICE LIFE INSURANCE, AND CLEARLY INTENDED TO HAVE THE INITIAL AND AT LEAST SOME OF THE SUBSEQUENT PREMIUMS PAID OUT OF A NON-EXISTENT ARMY ALLOTMENT, WE BELIEVE THAT THE APPLICATION WAS FRAUDULENT AND THAT THE SIGNATURE OF THE INSURED IS FICTITIOUS.

SINCE THE ANSWERS TO THE QUESTIONS IN THE APPLICATION FORM A PART OF THE CONTRACT WITH THE INSURANCE COMPANY, IT IS BELIEVED THAT SUCH FALSE ANSWERS FURNISH ADEQUATE LEGAL GROUNDS FOR CANCELLATION OF THE POLICY BY THE INSURER. THE CASES CITED BY THE GENERAL COUNSEL OF THE INSURANCE COMPANY (ATLAS LIFE INSURANCE COMPANY V. DAVIS, 232 F.2D 146, AND SPYRA V. GOVERNMENT PERSONNEL MUTUAL LIFE INSURANCE COMPANY, 236 S.W.2D 218) FURNISH NO BASIS FOR A REFUSAL TO TAKE SUCH ACTION, OF PREMIUMS BY MEANS OF AN ALLOTMENT OF PAY WAS PROPERLY AUTHORIZED INITIALLY AND THE ERRONEOUS PAYMENTS WERE THE FAULT OF THE GOVERNMENT ALONE. NO POLICY WOULD HAVE BEEN ISSUED IN THE PRESENT CASE, EXCEPT FOR THE FALSE ALLOTMENT OF PAY FORM SIGNED BY A PERSON WHO WAS NOT A MEMBER OF THE ARMY AND WHICH RESULTED IN PAYMENT OF THE INITIAL AND SUBSEQUENT PREMIUM PAYMENTS TO THE INSURER.

THE ONLY INFORMATION IN OUR FILES NOT PREVIOUSLY FURNISHED IN THIS CASE IS CONTAINED IN A LETTER OF NOVEMBER 3, 1958, FROM THE AIR FORCE ACCOUNTING AND FINANCE CENTER AND A LETTER OF MARCH 11, 1959, FROM THE INSURANCE COMPANY. COPIES OF SUCH LETTERS ARE ENCLOSED. ALSO ENCLOSED IS A COPY OF OUR LETTER OF JANUARY 26, 1960, TO THE BUREAU OF RECORDS AND STATISTICS, DEPARTMENT OF HEALTH, CITY OF NEW YORK. NOTATIONS THEREON REFER TO A JOHN MCCOURT, SON OF LAWRENCE MCCOURT, BORN IN NEW YORK, NEW YORK, ON SEPTEMBER 28, 1929.

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