Broome v. Mutual of Omaha Ins. Co., 43863

• Decision Date: 10 March 1969
• Docket Number: No. 1,No. 43863,43863,1
• Citation: 119 Ga.App. 443,167 S.E.2d 607
• Parties: Louise M. BROOME v. MUTUAL OF OMAHA INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 607

167 S.E.2d 607

119 Ga.App. 443

Louise M. BROOME v. MUTUAL OF OMAHA INSURANCE COMPANY.

No. 43863.

Court of Appeals of Georgia, Division No. 1.

March 10, 1969.

Rehearing Denied March 26, 1969.

Adams, O'Neal, Steele, Thornton & Hemingway, H. T. O'Neal, Jr., Macon, for appellant.

Anderson, Walker & Reichert, Mallory C. Atkinson, Jr., Macon, for appellee.

Syllabus Opinion by the Court

WHITMAN, Judge.

The plaintiff below, Louise M. Broome, appeals from an order granting a motion for summary judgment by defendant, Mutual of Omaha Insurance Co., to plaintiff's action to recover under a policy of disability insurance.

From the pleadings and affidavits before the trial court it appears that the plaintiff applied for a particular policy of disability insurance on June 17, 1965, and was notified on July 19, 1965, by letter, as follows:

'(Y)our policy has been issued relying upon the information contained in your application. A photocopy is attached and is made a part of the policy.

'It is very important to you-and to us-that your application contains complete and accurate information. Enclosed is a photocopy of your application and we ask that you review it carefully and if incomplete in any respect provide us with any additional information. Factual and well-defined answer to all of the questions now will prevent misunderstandings at a later date.

'Please complete and sign the appropriate spaces provided below, and return to us in the enclosed envelope. It is not necessary to return the photo. We sincerely appreciate the confidence you have expressed in our company and the courtesies you extended to our representative.

'Your prompt cooperation will be genuinely appreciated.

'Sincerely (s) W. M. Moss, Assistant Vice President and Chief Underwriter.'

The form referred to in the above letter was completed by plaintiff and returned to defendant. The form and the action taken by the plaintiff thereon is as follows:

'It is necessary to check only one: (X) I reviewed the application and find the answers to be correct and complete. ( ) The application appears correct except as follows _ _. Signature(s) Louise M. Broome.'

Plaintiff has timely paid all annual premiums coming due since the policy was issued.

It further appears that defendant, after having confirmed the issuance of the policy, recalled the policy which it had forwarded to its agent in Macon, Georgia, and altered or revised the policy by adding an elimination endorsement or rider relating to certain diseases and conditions and then returned the policy to its agent for delivery to the plaintiff. There is no contention or evidence that plaintiff ever misled defendant or misrepresented her physical condition in her application or otherwise. The medical report which induced defendant to rider plaintiff's policy was obtained from a physician to whom plaintiff had made reference in her application.

There is no evidence conflicting with plaintiff's statement that she never received her policy after she was notified it had been issued. Defendant states only that it delivered the ridered policy to its agent in Macon, Georgia, for delivery to the plaintiff. There is no evidence as to what the agent did thereafter.

Plaintiff states that she requested her policy from defendant after it unequivocally denied liability under her disability claim and received a document styled and designated a 'duplicate policy' which contained the qualified coverage or rider above mentioned, and that this document was her first knowledge that defendant had changed or desired to change the policy. Held:

1. The above facts do not support defendant's contention that a policy of disability insurance was never effected because there was never a meeting of minds. The plaintiff made a simple offer to purchase a particular policy of disability insurance (Program A-6AG2J) at a specified premium. By the terms of the offer, defendant could accept it by issuing the policy. The application plainly states: '(N)o insurance will be effected until the policy has been issued.' Having received the offer, defendant was free to accept it or reject it and was totally free to investigate before doing either. A month later the defendant notified the plaintiff by mail that: 'Your policy has been issued relying upon the information contained in your application. A photocopy is attached and is made a part of...