Jackson Nat. Life Ins. Co. v. Snead, A97A1800.
| Decision Date | 20 March 1998 |
| Docket Number | No. A97A1800.,A97A1800. |
| Citation | 231 Ga. App. 406,499 S.E.2d 173 |
| Parties | JACKSON NATIONAL LIFE INSURANCE COMPANY v. SNEAD. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Nations, Yates & Toman, J. Comer Yates, Gary J. Toman, Atlanta, for appellant. Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, John R. Bevis, Marietta, for appellee.
William E. Snead, Jr. filed suit against Jackson National Life Insurance Company seeking to recover benefits under a $250,000 life insurance policy issued on the life of his wife, Janice Snead, who died in a drowning accident within the two-year contestable period of the policy. The complaint also sought damages and attorney fees for the insurance company's bad faith refusal to pay.1 Jackson National answered, admitting that it had issued a policy on Janice Snead's life but denying liability based upon the affirmative defense of material misrepresentation, OCGA § 33-24-7(b). Specifically, Jackson National alleged that Janice Snead's failure to disclose on her application for the life insurance policy that she smoked cigarettes within the 12-month period preceding the application constituted a material misrepresentation sufficient to void the life insurance policy.
The case went to trial on June 5, 1995, and the jury returned a verdict in favor of Jackson National. On November 29, 1995, the trial court granted Snead's motion for a new trial on the general grounds, and a second trial commenced in June 1996. On retrial, the jury returned a verdict in favor of Snead for the face amount of the policy and found for Jackson National on the bad faith claim. The trial court denied Jackson National's motion for j.n.o.v., and this appeal followed.
Very few facts are not in dispute in this action, although both parties do agree to the following: On September 11, 1991, Janice Snead filled out an application for a $250,000 life insurance policy with Jackson National. She replied in the negative to two questions on the application, the first asking whether she "smoked cigarettes within the last 12 months," and the second asking whether she "smoked cigarettes in past twelve months." Jackson National issued a preferred non-smoker policy to Janice Snead on October 17, 1991. Janice Snead died on April 24, 1992. Because her death occurred during the two-year contestable period of the policy, Jackson National hired an investigator to question co-workers and friends to determine whether Janice Snead made any misrepresentations on the policy application. Following the investigation, Jackson National denied Snead's claim for the policy proceeds on the ground that the policy was void under OCGA § 33-24-7(b) because Janice Snead smoked cigarettes during the year preceding her insurance application.
At both trials, the evidence was hotly disputed as to whether Janice Snead had, in fact, smoked cigarettes during the 12-month period preceding her application, September 11, 1990 through September 10, 1991. On the one hand, Jackson National presented testimony from several of Janice Snead's co-workers that they saw Janice Snead smoke during a New Year's Eve party on December 31, 1990. They also testified that they observed Janice Snead smoke at work on a regular basis at least through January or February 1991. Snead's counsel vigorously attacked this testimony on cross-examination, questioning the witnesses' memory for dates, showing a prior inconsistent statement of one witness, exploring possible grounds of bias against Janice Snead and her husband,2 and suggesting that Jackson National's investigator supplied one witness with certain dates she otherwise would not have remembered.
Snead also called witnesses to testify that Janice Snead did not smoke within the 12-month period at issue. Snead, Janice Snead's daughter, and several family friends all testified that Janice Snead quit smoking some time in March 1990, and since that time they had not seen her smoke cigarettes or smelled cigarettes on her person. Several former co-workers testified on Snead's behalf, stating that although they no longer worked with Janice Snead during the critical time period, they had not observed her smoke at work or during social occasions since January or February 1991. A dental hygienist also testified that Janice Snead's teeth did not reveal any stains, gum disease, or other sign of smoking in October 1989 or March 1992, although she acknowledged that intervening dental records from the same office indicated she had stained teeth and irritated gums in September and December 1991 when she was seen by another hygienist. Finally, Snead introduced testimony that Janice Snead had been administered a nicotine screen test at the time she applied for the insurance that tested negative.
Jackson National also introduced evidence contradicting Snead's claim that Janice Snead stopped smoking in March 1990. For example, a photograph of Janice Snead taken in June 1990 was produced that showed her holding a cigarette in her hand at an office party. 3 Janice Snead's physician was called to testify, and medical records were introduced that showed Janice Snead visited her physician in March 1991 for a respiratory infection and asked for Nicorette samples to help her stop her "one-half pack a day" smoking habit.4
Both parties also disputed the materiality of Janice Snead's alleged misrepresentation. Jackson National's underwriters testified that the insurance company had a firm, bright-line policy that would have not allowed them to issue the preferred non-smoker policy to Janice Snead even if she had smoked only one cigarette in the year period preceding the application. Instead, they would have offered her a smoker policy with a 42 percent higher premium because cigarette smoking of any kind changed the nature of the risk the company was willing to assume. In Jackson National's opinion, the representations made by Janice Snead on her insurance application about her smoking habits were material to the company's decision to issue her a preferred non-smoker policy.
Snead called an expert witness to contradict this testimony. In his opinion, most insurance companies, using a prudent investor standard, would have issued Janice Snead a non-smoker policy even if she had smoked one or more cigarettes in the twelve months preceding her application because the questions on the insurance application were for the purpose of screening for regular and habitual smokers, not occasional smokers; in his opinion, if the facts revealed that Janice Snead had continued to smoke cigarettes on an occasional basis through January 1991, a prudent insurer would still have issued her a non-smoker policy because her smoking habits did not increase the risk assumed by an insurance company. At the first trial of this case, the jury found for Jackson National, and at the second trial, where substantially the same evidence was presented, the jury found for Snead.
1. Jackson National first argues that the trial court's grant of Snead's motion for a new trial following the first trial was error because the evidence in favor of the verdict was overwhelming and demanded a verdict in favor of Jackson National. It is well established that the first grant of a new trial on the general grounds will not be disturbed by an appellate court unless the trial court abused its discretion in granting it and the law and facts require the verdict. OCGA § 5-5-50. See Lister v. Scriver, 216 Ga.App. 741, 747(2), 456 S.E.2d 83.
In the present case, in order to void Janice Snead's policy of insurance for misrepresentation, Jackson National had the burden of proving that Janice Snead's representations in her insurance application concerning her smoking habits were false and that these misrepresentations were material in that they changed the nature, extent, or character of Jackson National's risk or in that Jackson National would not have in good faith issued the same policy to Janice Snead as applied for if the true facts had been known to them. See OCGA § 33-24-7; Taylor v. Ga. Intl. Life Ins. Co., 207 Ga.App. 341, 342, 427 S.E.2d 833. Because the evidence in this case was so clearly in conflict as to whether Janice Snead had materially misrepresented her smoking habits, we do not find that a verdict for Jackson National was demanded by the evidence. Accordingly, the trial court did not abuse its discretion in its first grant of a new trial to Snead.
2. Jackson National next argues the trial court's order granting a new trial was a nullity because it failed to state the court's reasons for exercising its discretion as required by OCGA § 5-5-51.
Snead's motion for a new trial was made on the general grounds, OCGA §§ 5-5-20 and 5-5-21, and the trial court's written order expressly applies the principle that a new trial may be granted on the general grounds "to correct what it considers to be an unfair and unjust verdict" and "to accomplish justice." The trial court's order was therefore in compliance with the requirements of OCGA § 5-5-51. See Central of Ga. R. Co. v. Hearn, 188 Ga.App. 277, 280(4), 372 S.E.2d 834 (). There was no error.
3. In its third and fourth enumerations, Jackson National argues that at both the first and second trial, the trial court erred in failing to direct a verdict at the close of the evidence, because the evidence was overwhelming that Janice Snead had misrepresented her smoking habits on the insurance application and that such misrepresentation was material under OCGA § 33-24-7(b)(2) and (3).
A directed verdict may be granted only when there is no conflict as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. On appeal, we must decide whether all the evidence demanded the grant of a directed verdict, or whether there was some evidence supporting the...
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