LIFE INSURANCE COMPANY OF GEORGIA, Petitioner, v. Jim F. LOPEZ, Respondent, 443 So. 2d 947

EHRLICH, Justice. This cause is before the Court for consideration of a question certified to us as being of great public importance. Lopez v. Life Insurance Company of Georgia, 406 So.2d 1155 (Fla. 4th DCA 1981). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. In 1980, Jim Lopez filed suit against Life Insurance Company of Georgia, claiming the company’s negligence had endangered his life and caused him injury. In the complaint, Lopez alleged that his total family income amounted to $9,000 per year.

Nonetheless, he alleged, the insurance company issued to Lopez’s wife insurance coverage on his life with a total face value of $130,000 and $260,000 for accidental death. The annual premiums, paid out of family income, were $7,464. Lopez further alleged that he was not aware that his wife was purchasing life insurance; he claimed to have been tricked into signing the forms, believing his wife was purchasing a health insurance policy. The complaint stated that in early 1977, Lopez overheard his wife and her brother plotting to kill him.

Lopez allegedly called his insurance agent immediately, informing him of the conspiracy, but the insurance company made no inquiry into the matter. In May 1977 Lopez’s wife and brother-in-law abducted him, it was alleged, and were attempting to drown him when a deputy sheriff happened upon the scene and rescued him. The complaint charged the insurance company with negligence in failing to discover the disproportion of the coverage to the family’s financial circumstances and negligence in failing to investigate the conspiracy to murder Lopez after receiving actual notice.

The trial court dismissed Lopez’s complaint, with prejudice, for failure to state a cause of action. The district court reversed the order dismissing the complaint and remanded the cause to the trial court. On consideration of petition for rehearing, the district court certified the following as a question of great public importance: Whether an insurer issuing a life insurance policy can be liable in tort to the insured where the policy beneficiary attempts to murder the insured in order to collect the policy benefits? 406 So.2d at 1160.

We find the language of this question to be overbroad in relation to the facts of the case before us and so restrict the issue: Whether an insurer issuing an insurance policy can be liable in tort to the insured where the policy beneficiary attempts to murder the insured in order to collect the policy benefits and where the insurer had actual notice of the policy beneficiary’s murderous intent. We answer the question as rephrased in the affirmative and approve the decision of the district court.

As the district court noted, and as the parties to the appeal concede, there exists no statutory or case law directly addressing the issue presented. Florida law prohibits issuance of an insurance policy to one who has no insurable interest in the thing insured. § 627.404, Fla.Stat. (1981). Only two states have recognized a cause of action against an insurance company whose negligence in issuing a policy allegedly exposed the insured to danger from the beneficiary of the policy. In Liberty National Life Insurance Co. v.

Weldon, 267 Ala. 171, 100 So.2d 696 (1957), the Alabama Supreme Court recognized a cause of action against an insurance company which had issued policies on a child’s life to the child’s aunt by marriage. The finding of liability there was predicated on the aunt’s lack of an insurable interest.

The court recognized the insurance company’s duty to exercise reasonable care not to issue a life insurance policy to one without an insurable interest in that life, reasoning that where the benefits of the policy are not counterbalanced by a benefit flowing from the life itself, the policy holder is “wagering” to profit from the death of the insured. The issue of consent to purchase life insurance by and for the benefit of one other than the insured was addressed in South Carolina. Ramey v. Carolina Life Insurance Co., 244 S.C. 16, 135 S.E.2d 362 (1964).

There a husband was allowed to sue the company which issued an insurance policy on his life because he alleged that the company had actual knowledge that his signature on the consent form was forged. The court ruled that the public policy prohibiting issuance of life insurance policies without the knowledge and consent of the insured applied even when the purchaser of the policy had a recognized insurable interest.

Issuance of the policy in the face of actual knowledge that the signature on the consent form was forged was held to violate a duty of care and to create a situation conducive to illegal attempts on the life of the insured. Neither case is directly- applicable to the facts before us. Mrs. Lopez clearly had an insurable interest in Mr. Lopez’s life. The allegation that Mr. Lopez’s signature on the forms was obtained by trickery is not legally analogous to the allegation of actual knowledge of forgery in the Ramey case. The case before us is unique and must be decided narrowly on its facts.

Insurance companies cannot in the usual course of business dealings be held to be guarantors of their customers’ good intentions. Neither can they be relieved of a duty to investigate when a beneficiary’s criminal motive in purchasing the policy is made known. The pivotal issue in this case is the allegation that the insurance company had actual notice of the policy beneficiary’s murderous intentions toward the insured.

This notice should have triggered an investigation which would in its earliest stages have uncovered the disproportion between the insured’s economic worth to the beneficiary dead and alive, the insured’s lack of consent to the issuance of the policy, and the financial impossibility of the couple meeting the premium payments for any extended period of time.

Such an aggregation of suspicious circumstances must surely impose on the insurance company a duty to eliminate any motive for effecting the insured’s death, if not by withdrawing the coverage as void for reasons of public policy, then at least by warning the beneficiary that no proceeds would be payable if she in fact murdered the insured. Knowledge that the insurance company was aware of the plot and would scrutinize the insured’s “accidental” death would surely serve as a deterrent to the accomplishment of the evil purpose.

To absolve the insurance company from any responsibility in the face of actual notice allows the company to continue to collect a premium with the high probability of being able to avoid any payment on the policy. This, in effect, allows the company to “make book” that murder will ensue, and the company will therefore benefit. Such a holding is unconscionable and an insult to the insurance industry. We emphasize the procedural posture of this case: The trial court dismissed the complaint with prejudice. In reviewing such action, we must assume as true all allegations well plead in the complaint.

Actual notice, the disproportionate coverage, the insured’s lack of consent and the amount of the annual payment were all alleged in the complaint. There has been no finding of fact. We therefore approve the district court of appeal and remand the cause to the trial court for further proceedings. It is so ordered. ALDERMAN, C.J, and ADKINS, OVERTON and McDONALD, JJ, concur. BOYD, J, dissents with an opinion.