Deborah S. Eyler, JudgeInsurance contracts initially are formed when an insurer unconditionally accepts an insured's application, which constitutes an offer, for coverage. From then on, the life insurance policy operates as a unilateral contract,… i.e., one that is formed by performance. “The periodic payment of premiums is the mechanism by which the insured opts to keep the insurance policy in force.” 29 Appleman On Insurance 2d § 179.0–3, at 230 (2006). Failure to pay the premiums will result in coverage lapsing.Life insurance policies have standard non-forfeiture clauses that allow for reinstatement after a lapse in coverage. The “REINSTATEMENT” clause in the Policy in this case is such a standard non-forfeiture clause.… Under the policy, when the relevant time frame for reinstatement is “within 31 days after the end of the Grace Period” (as it is here), the “REINSTATEMENT” clause is a promise by the insurer to reinstate coverage upon performance by the insured of a single act—payment of the overdue premium. In that situation, the insurer is not being asked to consider and either accept or reject an offer by the insured to enter into a life insurance contract. Thus, the plain language of the “REINSTATEMENT” clause of the Policy establishes that, upon payment by the insured of the overdue premium within 31 days after the end of the grace period, the Policy is revived. In other words, in that situation, the “REINSTATEMENT” clause is an offer of a unilateral contract to revive the Policy, with the insurer promising that revival will take place upon the insured's performing by paying the overdue premium.It is within the context of Dr. Griffith's acceptance by performance (that is, by payment of the overdue premium) of US Life's offer to revive the Policy that we must determine when payment took place. At common law, what is often called the “mailbox rule,” the “dispatch rule,” or sometimes the “postal acceptance rule” is the widely adopted convention for pinpointing the time that an offer is accepted and a contract is formed. [The state law at issue here] recognizes the rule, by which the mailed acceptance of an offer is effective when mailed, not when received or acknowledged.Page 369
Section 63(a) of the Restatement (Second) Of Contracts (1979), while not using any of the familiar mailbox rule nomenclature, recognizes with respect to the time that acceptance of an offer takes effect that, unless an offer states otherwise, “an acceptance made in a manner and by a medium invited by the offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession, without regard to whether it ever reaches the offeror.” The rationale for the rule … is, essentially, certainty and predictability. [E]ven though it may be possible under United States postal regulations for a sender to stop delivery and reclaim a letter, it remains the case that one to whom an offer has been made “needs a dependable basis for his decision whether to accept,” and has such a basis when he knows that, once properly dispatched, his acceptance is binding and the offer cannot be revoked. Id.
In 2 Williston On Contracts § 6:32 (4th ed. Richard A. Lord, 2007) (“Williston”), the author explains that the “dispatch rule” applies equally to bilateral and unilateral contracts. If an offer for a unilateral contract calls for the performance of an act by the offeree that can be accomplished by sending money through the mail, including in the form of a check, “as soon as the money is sent it would become the property of the offeror, and the offeror would become bound to perform its promise for which the money was the consideration.” Id. at 441–42 (footnote omitted). The offeror must have authorized the use of the particular medium … as a means of acceptance, and the acceptance must have been properly dispatched.
In addressing with particularity when acceptance is dispatched, Williston states: “An acceptance is dispatched within the meaning of the rule under consideration when it is put out of the possession of the offeree and within the control of the postal authorities, telegraph operator, or other third party authorized to receive it.” § 6:37, at 484. However, “mere delivery of an acceptance to a messenger with directions to mail it amounts to no acceptance until the messenger actually deposits it in the mail.” Id. The treatise continues:
The private delivery service, under the modern view, would have to be independent of the offeree, reliable both in terms of its delivery obligations and record keeping, and of a type that would customarily be used to communicate messages of this sort. Such agencies as the United Parcel Service, Federal Express, or even private messenger services in urban areas would qualify, and as soon as the communication leaves the offeree's possession and is placed with an authorized recipient of the instrumentality, an effective dispatch will be deemed to have occurred.
Williston §
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