Browder v. Aetna Life Ins. Co., No. 47028

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: DEEN; EBERHARDT, P.J., and CLARK
• Citation: 126 Ga.App. 140,190 S.E.2d 110
• Parties: Charles H. BROWDER v. AETNA LIFE INSURANCE COMPANY
• Docket Number: No. 3,No. 47028
• Decision Date: 24 April 1972

Page 110

190 S.E.2d 110 126 Ga.App. 140 Charles H. BROWDER
v.
AETNA LIFE INSURANCE COMPANY. No. 47028. Court of Appeals of Georgia, Division No. 3. April 24, 1972.

Syllabus by the Court

1. On the consideration of a motion for summary judgment made by a party on whom the burden of proof does not lie on the trial of the case, evidence which is ambivalent or self contradictory must be construed in favor of the party opposing the motion.

2. Under conflicting evidence, a jury question is presented as to whether the insurer by its course of conduct impliedly waived its right to deny disability benefits on the ground that it was not furnished with notice in writing [126 Ga.App. 141] within 20 days of the accident allegedly responsible for the disability.

3. No other error of law appears.

Page 111

Browder filed an action against Aetna Life Insurance Company seeking total disability benefits under an accident insurance policy. The defendant denied liability for a number of reasons involving the alleged failure of the plaintiff to comply with policy requirements and the contention that the disability was not a covered risk because arising from disease rather than accident. A motion for summary judgment in favor of the defendant was sustained and plaintiff appeals.

Roy J. Leite, Jr., Atlanta, for appellant.

Carter, Ansley, Smith, McLendon & Quillian, Henry M. Quillian, Jr., H. Sanders Carter, Jr., Atlanta, for appellee.

DEEN, Judge.

1. 'To prevail on motion for summary judgment, the movant has the burden to produce evidence which conclusively eliminates all material issues in the case.' Metropolitan Life Ins. Co. v. Forsyth, 122 Ga.App. 463, 464, 177 S.E.2d 505, 506. And, although the general rule is that upon the trial of the case the testimony of a party litigant, where self-contradictory or ambivalent, must be construed against him, yet on motion for summary judgment made by a party upon whom th burden of proof does not lie on the trial of the case, all evidence must be construed against the movant and in favor of the party opposing the motion. Burnette Ford v. Hayes, 227 Ga. 551, 181 S.E.2d 866; s.c., 124 Ga.App. 65, 66, 183 S.E.2d 78. It is therefore immaterial that there are inconsistencies between the affidavit and deposition of the plaintiff. That part of his testimony most favorable to his position will be taken as true on motion for summary judgment made by the defendant insurer.

2. So construed, although both the statute (Code Ann. § 56-3004(5) and the policy (standard provisions Nos. 4, 5) [126 Ga.App. 142] require 20-day written notice where 'reasonably possible' or a showing that written notice was in fact given as soon as reasonably possible if longer than 20 days, and although a timely notice in writing was not in fact given, the plaintiff contends the requirement that the notice be in writing was waived. 'In the absence of conduct amounting to waiver or estoppel, oral notice is not sufficient where written notice is required. Stubbs v. State Farm Mut. Auto. Ins. Co., 120 Ga.App. 750, 172 S.E.2d 441.' Corbin v. Gulf Ins. Co., 125 Ga.App. 281, 284, 187 S.E.2d 312. This case hinges primarily on a single point: Where there is evidence that timely notice was given to an agent authorized to receive it, within the 20-day period, but was defective for the reason that it was oral rather than in writing, what conduct on the part of the company will be sufficient to raise a jury question as to whether the insurer did in fact waiver its right to notice in writing? We must first state that we agree with the appellee (1) that the fact that ten years previously the insurance company had paid a similar claim where the first notice in writing was forwarded it some ten to thirteen months after the onset of disability, while it might well tend to make the plaintiff careless in subsequent claims, cannot be relied upon as a blanket waiver of written notice in all future claims, and we also agree that (2) where the plaintiff was sufficiently recovered to be...