Keaten v. Paul Revere Life Ins. Co.

• Decision Date: 18 June 1981
• Docket Number: No. 79-2656,79-2656
• Citation: 648 F.2d 299
• Parties: Robert J. KEATEN, Plaintiff-Appellant, v. The PAUL REVERE LIFE INSURANCE COMPANY, a Massachusetts Corporation, Defendant-Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 299

648 F.2d 299

Robert J. KEATEN, Plaintiff-Appellant, v. The PAUL REVERE LIFE INSURANCE COMPANY, a Massachusetts Corporation, Defendant-Appellee.

No. 79-2656.

United States Court of Appeals, Fifth Circuit.

Unit B

June 18, 1981.

Schreeder, Wheeler & Flint, Lawrence S. Burnat, Atlanta, Ga., for plaintiff-appellant.

Carter, Ansley, Smith & McLendon, H. Sanders Carter, Jr., Thomas E. Magill, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GEWIN, ^* MORGAN and RONEY, Circuit Judges.

GEWIN, Circuit Judge:

Robert J. Keaten, the herein named plaintiff-appellant, appeals from the district court's summary judgment order rendered for the defendant-appellee insurer (Paul Revere Life). After careful consideration of the applicable Georgia precedent, we affirm.

On August 12, 1976, Paul Revere Life issued a total disability insurance policy ¹ to the appellant with a written and signed application attached thereto. ² Almost two years later, the appellant allegedly became totally disabled as a result of heart trouble. Keaten thereafter submitted a "Notice of Disability" to the insurance company seeking benefits under the policy mentioned above. After examining the appellant's medical records, the insurer learned that he had suffered from a heart condition prior to the policy's effective date. Therefore, in a letter dated August 23, 1978, Paul Revere Life denied the claim under the terms of the policy excluding such pre-manifested diseases. ³

As a result, appellant instituted suit to recover policy benefits in the appropriate Georgia trial court three and one half months later. However, the insurance company, contending there was diversity jurisdiction, succeeded in removing the case to federal district court. Thereafter, both parties stipulated as to the facts and filed cross-motions for summary judgment accompanied by supporting affidavits. On June 26, 1975, the district court saw fit to grant the appellee's motion while simultaneously denying the appellant's. Keaten subsequently filed a timely notice of appeal to this court.

Our inquiry must necessarily involve a detailed analysis, under Georgia legal principles, ⁴ of two issues. Both questions deal ultimately with the concept of estoppel. First, whether a statutorily required incontestable clause in a disability policy bars an insurer from denying coverage on a particular claim under other restrictive clauses in the policy by investigating the truthfulness of assertions stated in the application. Second, whether statements made in an application for disability insurance, allegedly false due to the actions of an insurance agent after full and truthful answers were purportedly given by the applicant, must be taken on their face value alone thereby estopping an insurer from refuting their truthfulness and denying coverage on a specific claim.

Although in evaluating Georgia law pertinent to these two issues we discovered precedent that could possibly be read both ways, ⁵ we find that the Georgia Supreme Court, if presented with this identical factual situation would have reached the same result as the district court below. ⁶ In reaching this conclusion, we are, in effect, sitting as a state court. ⁷

Before discussing the incontestability issue, we must first recognize that, as noted in Appleman, Insurance Law and Practice (J. Appleman ed.) § 311, such:

clauses are enforced with particularity by the courts because of the desirable purpose which they have. It is their purpose to put a checkmate upon litigation; to prevent, after the lapse of a certain period of time, an expensive resort to the courts expensive both from the point of view of the litigants and that of the citizens of the state. In that way, it is a statute of limitations upon the right (of the insurer) to maintain certain actions or certain defenses (footnotes omitted) (emphasis added).

We find that Georgia follows the majority view ⁸ as to which particular defenses are negated by an incontestable clause. In other words, after the period of incontestability has run, the insurer is only barred from contesting the validity of the policy itself, e. g., on grounds of fraud in the procurement, etc It still reserves the right to deny any claim if it is not within the coverage as stated under the policy's terms. See Washington National Ins. Co. v. Burch, 270 F.2d 300 (5th Cir. 1959) (appeal from S.D. Ga.); Metropolitan Life Ins. Co. v. Shalloway, 151 F.2d 548 (5th Cir. 1945) (appeal from N.D. Ga.); United States v. Kaminsky, 64 F.2d 735 (5th Cir. 1933) (appeal from S.D. Ga.); Equitable Life Assur. Soc. v. Gillam, 195 Ga. 797, 25 S.E.2d 686 (1943); Ballinger v. C & S Bank of Tucker, 139 Ga.App. 686, 229 S.E.2d 498 (1976); Gulf Life Ins. Co. v. Lanier, 114 Ga.App. 277, 151 S.E.2d 161 (1966); Hollis v. Travelers' Ins. Co., 49 Ga.App. 274, 175 S.E. 33 (1934); Ga.Code Ann. §§ 56-2503(1)(b) & 56-2509. This is true regardless of the import of any statements made in the application for insurance. ⁹ To hold otherwise, would be to expand coverage thereby forcing liability upon the insurer for risks it never intended to assume. See W.A. Showers v. Allstate Ins. Co., 136 Ga.App. 792, 793, 222 S.E.2d 198, 199 (1975).

Keaten's counsel on appeal submits that the cases and statutes supporting the aforementioned proposition of law are readily distinguishable because they differ in various factual matters such as the type of insurance policy involved, e. g., life, life with disability, property. This is a distinction without a difference in result. We believe that the Georgia legislature and judiciary fully intend to presently treat the question of incontestability the same regardless of the type of policy issued. Merely because the Georgia Supreme Court has not been faced with this question in a disability policy is irrelevant. The legislature has indicated that although incontestable clauses serve a worthwhile purpose by keeping policies in force, they were never meant to be used as a plenary grant to rewrite the terms of coverage and risks assumed by the insurer. ¹⁰

"We find in the Georgia cases and statutes nothing which militates against (what) we find to be declaratory of the general law (that) to determine the coverage of a policy (is) not to contest the policy, but to apply it properly." Washington National Ins. Co. v. Burch, 270 F.2d 300, 304 (5th Cir. 1959) (appeal from S.D. Ga.). "For the Company to contest any of these facts is not to contest its policy, but admitting its validity, to require establishment of the facts necessary to its proper application and fulfillment." Metropolitan Life Ins. Co. v. Shalloway, 151 F.2d 548, 551 (5th Cir. 1945) (appeal from N.D. Ga.). "(T)he validity of the policy (is all that) becomes incontestable, (while) the conditions of the insurance and the coverage (are) unaffected." Id. "The fact that the policy had become incontestable would not operate to change the rule, since, though incontestable, the liability, in the absence of any waiver, is measured by the terms and provisions of the policy itself." Hollis v. Travelers Ins. Co., 49 Ga.App. 274, 275, 175 S.E. 33, 34 (1934). More recently, the Georgia Court of Appeals stated that an insurance company is not precluded from showing that a particular claim is "not covered within the terms and provisions of the policy because of restrictions and exclusions therein, although (it) would have been precluded from asserting as a defense the invalidity of the (policy) because of fraud in the procurement or any other ground affected the validity of the (policy) as a whole." Ballinger v. C & S Bank of Tucker, 139 Ga.App. 686, 689, 229 S.E.2d 498, 501 (1976).

Appellant also contends that National Life & Accident Ins. Co. v. Chapman, 106 Ga.App. 375, 127 S.E.2d 157 (1962) (disability policy) ¹¹ and Penn Mut. Life Ins. Co. v Childs, 65 Ga.App. 468, 16 S.E.2d 103 (1941) (life with disability policy) ¹² fully support his position on this issue. We find this not to be the case. Consequently, Chapman and Childs have no precedential value on this particular appeal. Pursuant to our analysis set forth above, we affirm the district court's findings of law as to the incontestability issue. ¹³

Turning now to the second question before this court, we find that once again the appellant's contentions do not merit reversal of the district court's determinations. Georgia requires all applicants for insurance to read the application and know its contents before signing. This permits the truthfulness of the answers to be ascertained and any errors may then be easily corrected. If the applicant does not read the application, he is still charged with knowledge of its contents. Prudential Ins. Co. of America v. Perry, 121 Ga.App. 618, 174 S.E.2d 570 (1970). See generally Parris & Son, Inc. v. Campbell, 128 Ga.App. 165, 196 S.E.2d 334 (1973). Keaten admittedly signed the application without reading it. ¹⁴ If he had read the application he would have noticed the limitation on the agent's power "to waive the answer to any question, to pass on insurability, to waive any of the Company's rights or requirements or to make or alter any contract." Since appellant was charged with knowledge of this limitation, he relied at his own peril on actions ¹⁵ of the agent in excess of that agent's power. Prudential Ins. Co. of America v. Perry, 121 Ga.App. 618, 174 S.E.2d 570 (1970). See Jefferson Stand. Life Ins. Co. v. Bridges, 147 Ga.App. 5, 248 S.E.2d 5 (1978); Mutual of Omaha Ins. Co. v. Truluck, 129 Ga.App. 692, 200 S.E.2d 913 (1973); Reserve Life Ins. Co. v. Bearden, 96 Ga.App. 549, 101 S.E.2d 120 (1957), aff'd 213 Ga. 904, 102 S.E.2d 494 (1958).

Finally, we note that "(t)he doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, or its agent, are not available to bring within the coverage of a policy risks not covered by its terms, or...