Brandon v. Mayfield

• Decision Date: 02 December 1994
• Docket Number: No. A94A1670,A94A1670
• Parties: BRANDON v. MAYFIELD.
• Court: Georgia Court of Appeals

Page 181

452 S.E.2d 181

215 Ga.App. 735

BRANDON v. MAYFIELD.

No. A94A1670.

Court of Appeals of Georgia.

December 2, 1994.

Reconsideration Denied Dec. 19, 1994.

Cheeley & King, John P. Cheeley, Joseph E. Cheeley III, Duluth, for appellant.

C. Alan Mullinax, Stone Mountain, for appellee.

ANDREWS, Judge.

Brandon appeals from the grant of Mayfield's motion for summary judgment and denial of her motion for partial summary judgment. Brandon was sued by Humana Hospital for sums owed as the result of surgery on her left knee in June 1991. Brandon then filed her third-party complaint against her employer at the time, Mayfield d/b/a Family Practice of Lithonia (Mayfield). Cross-motions for summary judgment were filed and the court denied Brandon's and granted Mayfield's, concluding that Mayfield had breached no duty to Brandon regarding the provision of group medical coverage.

The following facts are not contested. Brandon had surgery on her left knee in 1983. Thereafter, she worked for Mayfield as a licensed practical nurse and the director of nursing from September 1987 until December 1991. On October 19, 1989, she filled out an application for group health insurance, to be provided by Mayfield at no cost to employees. Anthem issued a policy and Brandon and the other employees received booklets explaining the provided coverage as well as insurance cards. This policy continued in force until its termination by Mayfield, effective at midnight on April 30, 1991.

On March 11, 1991, prior to cancellation of Anthem coverage, Brandon, along with the other employees of Mayfield, filled out applications for group health insurance with Metropolitan Insurance Company (Met). Mitchell, Met's agent, was present at the doctor's office for the purpose of taking the applications and discussing any questions with the employees. Brandon acknowledges filling out the Met application, but states that she was not told the ending and beginning dates of the respective policies. On April 18, 1991, Brandon sustained an injury to her left knee for which she sought treatment initially from a doctor in Mayfield's group practice.

Met's group health coverage became effective on May 1, 1991. On May 2, 1991, Mitchell brought the insurance cards and policy booklets to Mayfield's employees, including Brandon, for the Met coverage.

On June 7, 1991, Brandon had surgery on her left knee at Humana. Her post-operative diagnosis was a "torn [medial] meniscus." Her 1983 operation had also been for this condition. Met refused to cover the 1991 operation, contending it was a pre-existing condition which had not been revealed on the application, based either on the 1983 surgery or the April 18, 1991 injury. Mitchell, Met's agent, stated in his affidavit ¹ that all employees, including Brandon, were told that all pre-existing conditions revealed on their application would be covered by Met. (Emphasis supplied.) As issued, however, the Met policy included in the record states that "MEDICAL CARE BENEFITS FOR PRE-EXISTING CONDITIONS--No benefits shall be payable for any services rendered during the first 12 months of coverage for any sickness or injury the symptoms of which were evident during the 12 months immediately preceding the effective date of the Employee's coverage. Symptoms shall be considered as evidence if there were clear, distinct symptom or symptoms of the ... injury demonstrable prior to the effective date of the Employee's coverage and which in the opinion of a legally qualified physician, would (1) indicate that the ... injury probably began and manifested itself before such effective date...."

Anthem refused to pay for the June 1991 surgery, stating that "Your employer had cancelled his group coverage when you received this care. For this reason, it is not covered."

In her third-party complaint, Brandon asserted that her employment contract was breached because of Mayfield's failure to inform her of termination of the Anthem coverage and by cancelling her coverage with Anthem "so as to deprive [Brandon] of rights to benefits under that policy." Further, she asserted that Mayfield did not notify her of changes in her health insurance coverage from Anthem to Met within 30 days of April 30, 1991, as required by O.C.G.A. § 33-24-21.1(e). Mayfield's motion for summary judgment addressed both grounds and was granted.

1. "To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.] A [third-party] defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]" (Emphasis in original.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

We note first that the trial court, instead of viewing the facts with all inferences in Brandon's favor on Mayfield's motion, has erroneously proceeded to make credibility and other factual decisions. This, however, does not preclude our consideration of the record and our de novo determination of whether summary judgment in favor of Mayfield was appropriate or whether, instead, genuine issues of material fact remain for jury resolution. Bishop v. Mangal Bhai Enterprises, 194 Ga.App. 874(1), 392 S.E.2d 535 (1990).

2. O.C.G.A. § 33-24-21.1, "Group accident and sickness contracts; conversion privilege and continuation right provisions," was enacted in 1986 and applied to all policies issued after July 1986. Prior to that enactment, however, as acknowledged by Mayfield, there existed and still exists in Georgia certain fiduciary duties owed by the employer to the employee regarding group health insurance.

In Dawes Mining Co. v. Callahan, 246 Ga. 531, 272 S.E.2d 267 (1980), employee Callahan began working for Dawes in 1957 and started participating in the employer-provided group health insurance a few years later.

"In 1975, without consulting the employees, Dawes changed coverage from the existing insurer to another insurance company. The employees were told of the change and to come to the office to sign up with the new insurer. The local representative of Dawes and a representative of the new insurer were present in the office. The insurer's representative said the coverage was the same as under the former policy and said nothing about exclusion of coverage for pre-existing illnesses. Callahan ... could not read...." (Footnotes omitted.) Dawes, supra at 532, 272 S.E.2d 267. In fact, the new policy had a pre-existing condition exclusion requiring no treatment of such a condition for 90 days before coverage would begin under the new policy. During the 90 days, Callahan's wife became ill with a pre-existing condition and eventually died. When the new insurer refused coverage due to this clause, Callahan sued Dawes to recover the expenses of his wife's illness.

The Supreme Court upheld the jury verdict in favor of Callahan and concluded that, after...