Fox v. Catholic Knights Ins. Society

1. Austin J. Fox, by his guardian ad litem, Matthew T. Fricker, (Fox) appeals from the circuit court's amended order granting summary judgment to Catholic Knights Insurance Society (CKIS), denying his motion for summary judgment, and dismissing his complaint on the merits and with prejudice. Fox argues that the circuit court erred in concluding that the CKIS life insurance policy for his father, Patrick Fox, had not taken effect by the time Patrick died in a car accident. Fox contends, therefore, that the court erred in granting summary judgment upholding CKIS's denial of his claim for $150,000 under the policy for which Patrick had applied.

2. We conclude that under the unusual circumstances of this case, and by operation of Wis. Stat. §631.11(3) (1999-2000),1 Patrick's policy was in effect at the time of his death even if a blood test was a condition precedent to the activation of the policy, even though Patrick died before having that test, and even though a blood test could only have been performed on the blood that had been drawn from Patrick following his fatal accident.2 Accordingly, we reverse.

I. Background

3. The facts relevant to resolution of this appeal are undisputed. According to the complaint and summary judgment submissions, on May 21, 1997, Patrick Fox completed a CKIS "Application For Membership And Life Insurance" for a $150,000 term life insurance policy, naming Austin, then two years old, as the primary beneficiary for benefits payable upon Patrick's death. Also on May 21, 1997, Patrick paid CKIS $31.94 for the first premium.

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Reversed and cause remanded with instructions.

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C.L.