DIVISIONS II & III
ELIZABETH DIANNE FRANCIS
APPELLANT
V.
PROTECTIVE LIFE INSURANCE
COMPANY and CHRYSLER
FINANCIAL CORPORATION
APPELLEES
CA 06-241
FEBRUARY 14, 2007
APPEAL FROM THE JOHNSON
COUNTY CIRCUIT COURT
[NO. CV 2003-84]
HONORABLE JOHN S. PATTERSON,
JUDGE
REVERSED AND REMANDED
JOHN B. ROBBINS, Judge
Appellant Elizabeth Francis brings this appeal challenging the Johnson County Circuit
Court’s grant of appellee Chrysler Financial Corporation’s motion to dismiss, the grant of
summary judgment in favor of Chrysler on its counterclaim, and the grant of summary
judgment in favor of appellee Protective Life Insurance Co. (PLI). Francis asserts that the
trial court erred in granting summary judgment to both Chrysler and PLI. We reverse and
remand.
On April 14, 2002, Francis and her husband, Terrill Keith Francis, purchased a new
vehicle from Breeden Dodge in Fort Smith. As part of the transaction, the Francises entered
into a retail installment contract that was assigned to Chrysler. They also applied for a credit
life insurance policy on Mr. Francis’s life from PLI. The application contained the following
language: “I am not insurable for any coverage if I now have, or during the past 2 years have
been seen, diagnosed or treated (including medications) for: (a) A condition, disease or
disorder of the . . . lung(s) . . . .” (Emphasis in original.) Immediately above the signature
block, the following language appears in bold type: “I have read and understand this
Application and represent that I am insurable for the coverage as requested in the Schedule
. . . .” Mr. Francis’s signature is affixed in the signature block. It is undisputed that Mr.
Francis suffered from chronic obstructive pulmonary disease (COPD) and had been treated
for that disease within two years of making the application. It is also undisputed that Mr.
Francis required the use of oxygen and medication for his condition.
Mr. Francis died on January 6, 2003. The cause of death was listed as a probable
stroke, with COPD listed as an underlyin