In its September 7. 2021 issue, the Los Angeles Daily Journal published an article written by the McKennon Law Group PC’s Robert J. McKennon and Larry J. Caldwell. The article addresses McHugh v. Protective Life Insurance Co., a new case in which the California Supreme Court held that the grace and notice periods in Insurance Code Sections 10113.71 and 10113.72 apply to life insurance policies issued and delivered in California before January 1, 2013, as well as to life insurance policies issued, delivered, or renewed after January 1, 2023. McHugh provides significant new protections against loss of life insurance coverage for the policyholders and beneficiaries on all life insurance policies issued or delivered in California prior to or after January 1, 2013.
High Court Clarifies Life Insurance Grace Period Law
By Robert J. McKennon and Larry J. Caldwell
Most insureds pay regular monthly life insurance premiums for years without a problem. Occasionally, a policyholder may miss a premium payment. For example, in the last few months of her life, the policyholder may be so ill or incapacitated that she uncharacteristically fails to pay the monthly premium. If the policyholder misses a premium payment by the due date, or within a grace period following the due date, the policy will lapse, and the insurer will decline to pay death benefits on this basis — even though the policyholder may have paid premiums faithfully for years, or even decades.
In 2012, the California Legislature enacted new statutes to protect life insurance policyholders and beneficiaries from this situation. Insurance Code Sections 10113.71 and 10113.72 require: (1) insurers to provide notice to applicants and annual notice to policyholders of their right to designate someone other than themselves to receive lapse notices (Section 10113.72 (a), (b)); (2) policyholders and any designees to receive notice within 30 days of a missed premium payment, and any termination for nonpayment will not be effective unless insurers send notice to these parties at least 30 days prior (Sections 10113.71 (b)(1), (3), 10113.72 (c)); and (3) all policies have a 60-day grace period, which lines up with the two 30-day notice windows (Section 10113.71 (a)).
The first requirement, only applicable to individual life insurance policies, allows policyholders to designate a person in addition to the policyholder to receive lapse notices, making it less likely non-payment of a premium will cause a loss of coverage. The law took effect on Jan. 1, 2013.
Policyholders and insurers have agreed that the new requirements in Sections 10113.71 and 10113.72 apply to all life insurance policies issued or delivered in California on or after Jan. 1, 2013. But there had been a long-running legal dispute regarding whether these new requirements applied to life insurance policies issued before Jan. 1, 2013 and whether policies “renewed” after this date incorporate these statutory requirements. Policyholders and beneficiaries under life insurance policies (including my firm) argued that these new rules should apply to all life insurance policies, regardless of when first issued or delivered in California. Not surprisingly, insurers argued that these statutory rules should not apply to life insurance policies issued prior to Jan. 1, 2013, because this would be a “retroactive” application of the statutes, and the Legislature only intended the statute to apply prospectively.
A decision by the California Supreme Court, McHugh v. Protective Life Insurance, 2021 DJDAR 9020 (Aug. 20, 2021), settles this legal dispute in favor of policyholders and beneficiaries. In a unanimous decision, the court reversed the California Court of Appeal in holding that the statutory grace period and notice requirements apply to all life insurance policies issued in California, regardless of when they were issued. The court rejected the insurer’s arguments that applying the statutory requirements to life insurance policies issued prior to Jan. 1, 2013, would constitute a “retroactive” application of the statute, even though the Legislature purportedly did not indicate a clear intention for the statute to apply retroactively. The court further held that, in any event, the legislature did intend the statute to apply to life insurance policies in force before Jan. 1, 2013.
In March 2005, Chase Life Insurance Company, the predecessor to Protective Life Insurance Company, issued a $1 million term life insurance policy to William McHugh. He paid annual premium payments through 2012. McHugh missed his annual premium payment due on Jan. 9, 2013. Despite warning notices sent to him, he failed to make the payment during the policy’s grace period. Protective Life then terminated his policy for non-payment of premium. McHugh passed away in June 2013, after the policy was lapsed and terminated.
McHugh’s daughter, Blakely McHugh, the primary beneficiary on the policy, submitted a claim for the death benefit, which Protective Life denied, because the policy was not in force at the time of William McHugh’s death
Blakely McHugh and her mother sued Protective Life for breach of contract and insurance bad faith. At trial, the trial court instructed the jury that Sections 10113.71 and 10113.72 applied to the policy, even though it was issued before Jan. 1, 2013. The jury found that McHugh had either performed or been excused from performing all conditions necessary for Protective Life to pay the death benefit, but nevertheless found against plaintiffs and in favor of Protective Life on both claims for breach of contract and insurance bad faith.
The Court of Appeal affirmed the judgment on the grounds that Sections 10113.71 and 10113.72 did not apply to life insurance policies issued prior to Jan. 1, 2013, thus did not apply to plaintiffs’ life insurance policy, because it was issued prior to this date.
The California Supreme Court reversed the Court of Appeal, holding that sections 10113.71 and 10113.72 apply to all life insurance policies in force when these two sections went into effect, regardless of when the policies were originally issued. The court correctly noted that this interpretation fits the provisions’ language, legislative history, a uniform notice scheme, and it protects policyholders, especially those who are elderly, hospitalized, or incapacitated, ones who may be particularly vulnerable to missing a premium payment. The court explained that this is “consistent with the provisions’ purpose.”
The court based its decision on two primary rationales: that applying the statutory requirements to existing policies does not constitute a “retroactive” application of the statute; and that, in any event, the legislature intended the new requirements to apply to all life insurance policies issued or delivered in California, regardless of when they were issued or delivered.
When interpreting a statute, courts normally begin with a presumption that a statute applies only prospectively in the absence of clear evidence that the legislature intended the statute to apply retroactively. In McHugh, the court emphasized the importance of deciding the threshold issue of whether a statute applies “retroactively,” before proceeding to the presumption. In analyzing alleged “retroactivity,” the Supreme Court “focused on whether the statutory change in question significantly alters settled expectations: by changing the legal consequences of past events, or vitiating substantial rights established by prior law.” The court determined that,
“The grace period and notice obligations added by Sections 10113.71 and 10113.72 do not impact a life insurer’s liability for past, preenactment defaults …. Nor do the changes otherwise impinge on a contracting party’s substantial rights or unfairly upset the bargain memorialized in the insurance policy, for example, by requiring an insurer to provide substantially expanded coverage without also giving it an opportunity to raise premiums.”
Observing that “the arguments offered [by the insurer] fall short of clearly showing how the sections’ new protections constituted a disruptive contract change of the sort that would qualify as ‘retroactive’ under our precedent,” the court determined that applying the new requirements in Sections 10113.71 and 10113.72 to pre-existing life insurance policies is a prospective application.
As a second basis for its ruling, the court also stated that, in any event, the legislature intended Sections 10113.71 and 10113.72 to apply to all existing life insurance policies:
“[T]he statutory sections appear to create a single, unified pretermination notice scheme …. [I]t seems doubtful the Legislature contemplated that insurance companies would, going forward, simultaneously implement two vastly different notice schemes: one applying to pre-2013 policies that requires only 31-day notices before termination and no right to designations, and a post-2013 scheme as described.”
The Supreme Court’s said its decision was motivated by the importance of life insurance coverage:
“Millions of California consumers manage financial risks for their families by purchasing life insurance. Through these policies, Californians ensure that their families and other designated beneficiaries are protected by a financial safety net — and are able to plan for contingencies — in the event of the policy owners’ untimely death.”
McHugh provides significant new protections against loss of life insurance coverage for the policyholders and beneficiaries on all life insurance policies issued or delivered in California prior to or after Jan. 1, 2013. Owners of such policies that have previously lapsed may potentially now have grounds for reinstatement of their policies, whether or not the policy owner is still living. Beneficiaries whose claims for coverage have been denied based upon a lapse in coverage that would have been prevented by these new statutes may now have a basis for seeking reconsideration of denial. They may also have claims for breach of contract and insurance bad faith regarding such denials. Life insurers will lament this decision because it will result in death benefits being paid under numerous previously lapsed life insurance policies, thus preserving thousands of valuable life insurance policies. But, policyholders and their beneficiaries will be consoled in knowing that a single missed premium payment will not necessarily result in the termination of their policies for which they paid premiums for many years without fail.
Robert J. McKennon is a shareholder of McKennon Law Group PC in its Newport Beach office. His practice specializes in representing policyholders in life, health and disability insurance, insurance bad faith and ERISA litigation. He can be reached at (949) 387-9595 or email@example.com. His firm’s California Insurance Litigation Blog can be found at www.californiainsurancelitigation.com.
Larry J. Caldwell is of counsel to McKennon Law Group PC in its Newport Beach office. He has litigated insurance claims for over 35 years and specializes in representing policyholders in ERISA, insurance coverage, and insurance bad faith litigation regarding disability, life, accidental death, pension and health insurance claims.