Travelers Ins. Co. v. Blakey, 70864

• Decision Date: 05 November 1985
• Docket Number: No. 70864,70864
• Citation: 338 S.E.2d 451,177 Ga.App. 1
• Parties: TRAVELERS INSURANCE COMPANY v. BLAKEY.
• Court: Georgia Court of Appeals

Page 451

338 S.E.2d 451

177 Ga.App. 1

TRAVELERS INSURANCE COMPANY v. BLAKEY.

No. 70864.

Court of Appeals of Georgia.

Nov. 5, 1985.

Rehearing Denied Nov. 20, 1985.

Certiorari Granted Jan. 17, 1986.

Daniel A. Angelo, Newton M. Galloway, Atlanta, for appellant.

A. Wilbur Orr, Washington, for appellee.

BENHAM, Judge.

Appellant, The Travelers Insurance Company, insured appellee's decedent, Robert Blakey, under a group policy. The insured, afflicted with cancer, sought and obtained treatment for his illness from a number of medical facilities, including the Immunology Researching Center ("IRC") in the Bahamas. Blakey incurred and paid $4,250 in treatment expenses during his first visit to the center and submitted the bill to appellant for reimbursement. Appellant denied Blakey's claim, saying the expenses did not meet the policy definition of "covered medical expenses." Blakey filed suit against appellant; upon his death, Blakey's wife, appellee/executrix of his estate, was substituted as the named plaintiff.

A jury awarded appellee the full amount of her claim, and the trial court entered judgment accordingly. Appellant here contests the denial of its motions for directed verdict, for judgment n.o.v., and for new trial. We affirm.

1. Appellant's first, second, and fourth enumerations assert that the trial court erred in failing to rule as a matter of law that the treatment given to decedent at the IRC did not constitute "covered medical expenses," because there was no evidence that "physician's or surgeon's services" were rendered. Under the group insurance policy issued by appellant, "covered medical expenses" include "physician's or surgeon's services for a surgical procedure and other medical care and treatment ..."

Appellant argues that the language of the policy is unambiguous and as such was to be construed by the trial court. OCGA § 13-2-1. Looking at the entire provision, we agree with appellee that the policy language is ambiguous, there being more than one way it could have been construed, and that, accordingly, it was within the province of the jury to construe it. OCGA § 13-2-1; Trippe v. Crescent Farms, 58 Ga.App. 1, 4, 197 S.E. 330 (1938). "In construing an insurance policy, '(t)he test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.' [Cit.]" Greer v. IDS Life Ins. Co., 149 Ga.App. 61, 63, 253 S.E.2d 408 (1979). Appellant/insurer would have us read the policy as meaning that only a physician or surgeon can provide "other medical care and treatment." Appellee, on behalf of decedent/insured, contends that the "other medical care and treatment" can be provided by someone other than a physician or surgeon. There being at least two possible constructions of the policy provision, the courts must favor that which favors the insured. Id. We note here that, contrary to appellant's assertion, the trial court properly instructed the jury in that regard.

At trial there was testimony that the IRC was staffed by licensed physicians, one of whom specialized in immunotherapy; that the IRC offered treatment of malignant diseases by the use of immunoglobulins, or fractions of human serum; that...