Johnson v. United of Omaha Life Insurance Co.
A court of the Eastern District of Texas made an Erie guess in resolving whether a beneficiary's negotiation of a premium refund check constitutes mutual rescission in a life insurance dispute, holding that where an insurer's correspondence is not an offer of rescission but a repudiation of the policy, the beneficiary's silence in response to the repudiation and the cashing of the premium refund check are actions consistent with mitigating damages and not the acceptance of any offer to rescind, particularly where the record shows a triable issue of fact as to whether the insurer misrepresented material facts to induce the beneficiary to cash the premium refund check.
life insurance policy, Erie guess, rescission, mutual rescission, repudiation, negotiable instrument, premium refund, misrepresentation, mitigation of damages
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