Beggs v. Pacific Mut. Life Ins. Co., 68198

• Decision Date: 14 June 1984
• Docket Number: No. 68198,68198
• Parties: BEGGS v. PACIFIC MUTUAL LIFE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 836

318 S.E.2d 836

171 Ga.App. 204

BEGGS v. PACIFIC MUTUAL LIFE INSURANCE COMPANY.

No. 68198.

Court of Appeals of Georgia.

June 14, 1984.

James B. Gordon, Atlanta, for appellant.

H. Sanders Carter, Jr., Atlanta, for appellee.

BIRDSONG, Judge.

This is an appeal from summary judgment granted to the insurer on grounds that the soft palate operation to correct a congenital defect of the appellant's two-year-old child was excluded from coverage by the pre-existing condition provisions of the policy. The pertinent provision excludes coverage of treatment of a "disease manifested or bodily injury sustained before the insured became covered under this Coverage, unless such insured, while covered under this Coverage, completes a 90-day period during which such insured receives no medical, surgical or nursing services, and no drug or medicine obtainable only upon the prescription of a physician to treat such disease or injury...." (Emphasis supplied.)

On motion for summary judgment viewing the evidence in the appellant's favor as respondent, the evidence shows that the appellant (and his company of which he is a principal) applied for group coverage on January 14, 1980, paid the premium, and specifically stated on the application that the "desired coverage date" was January 14, 1980. He had expressly sought insurance which would cover treatment of his child's congenital defect, because he had previously encountered difficulties with pre-existing exclusions with his wife's medical problems. Assuming, for purposes of this motion for summary judgment, that the insurance broker was the agent of appellee Pacific Mutual, the appellee's agent assured Beggs that the coverage would be effective on the date requested, January 14, 1980. The next day, on January 15, the child was examined by a surgeon; the examination lasted no more than fifteen minutes and consisted merely of the surgeon's looking briefly into the child's mouth. The operation in question was performed in March 1980. Held:

1. Appellant contends that the child's congenital condition was not a disease or injury and was therefore not within the described conditions excluded under the pre-existing conditions clause. However, the policy coverage extended only to injury or disease, so that if a congenital defect was neither of these as appellant contends, treatment for it was not covered in the first place, and it would be unnecessary to invoke the exclusion.

As to whether this congenital defect was a "disease" so as to be covered by the policy, in Aetna Life Ins. Co. v. Sanders, 127 Ga.App. 352, 354, 193 S.E.2d 173, we approved the following definition of "disease" found in Black's Law Dictionary (4th ed.): " 'Deviation from the healthy or normal condition of any of the functions or tissues of the body; an alteration in the state of the body or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain or weakness.' " Unless the policy specifically excludes congenital conditions--and this one does not--"disease" as defined by Black would encompass a "deviation from the healthy or normal condition of any of the functions or tissues of the body..." that arose before birth. The burden to prove a fact situation is upon the insurer, and particularly where construction is uncertain, the benefit of interpretation is given to the insured. See Mutual Life Ins. Co. of N.Y. v. Bishop, 132 Ga.App. 816, 817, 209 S.E.2d 223.

2. The brief diagnostic examination on January 15 did not constitute "medical services ... to treat such pre-existing disease" occurring within a 90-day period ending while coverage was in effect (that is, the child completed a 90-day treatment-free period while insured and prior to her March operation). Pacific Mutual points to the phrase "medical services," but the words "to treat the disease" must refer to medical services as well as to...