Metropolitan Life Insurance v. Fields

Sutton, J. This was a suit on a certificate of employee’s group life and disability insurance. The certificate provided that upon termination of the employee’s employment, for any cause, all of his insurance should cease, and that disability benefits should be paid to any employee “who furnished due proof to the company, within one year after the termination of his insurance, that, while insured thereunder and prior to his sixtieth birthday, he has become totally and permanently disabled,” and the group master [77] policy provided: “Upon receipt by the company of due notice and proof in writing that any employee, while insured hereunder, and prior to his sixtieth birthday, has become totally and permanently disabled as a result of bodily injury or disease, . . the company shall discontinue the insurance in force on the life of said employee, and three months after receipt of such proof shall commence to pay” the disability benefits. The policy also provided “that no payment for total and permanent disability shall be made unless written notice thereof has been presented to the company within one year after the termination of the insurance of any such disabled employee,” and that “the insurance on any employee insured hereunder, who shall have ceased to be in the employ of the employer, shall be discontinued as of the date such employee left the employ of the employer.” The insured contracted tuberculosis while in the service of his employer, and gradually grew weaker and worse until, on January 20, 1932, on account of such disease, the insured was forced to terminate his employment. The evidence shows that he did not file any proof of his disability until August 18, 1933. In his suit he alleges that he duly filed proof of his disability, and that the insurer denied liability and refused payment on the ground that it did not consider that he was totally disabled when he terminated his employment or that he had been continuously so disabled to the present. The plaintiff alleged that demand was made of the defendant for payment more than sixty days before filing this suit. He did not allege any reason for failing to file proof of disability within one year after he became totally disabled and his employment terminated which caused his insurance to cease. The trial resulted in a verdict for the plaintiff. The defendant’s motion for new trial was overruled, and it excepted. Where a certificate of employee’s group insurance provides that the insurer will pay no disability benefits unless written notice or proof of disability has been presented to it within one year after the termination of the insurance, which automatically terminates upon the termination of the insured’s employment for any cause, furnishing a written proof to the insurer within one year from such time is a condition precedent to the right of the insured to recover the disability benefits provided for in the policy; and must be complied with in a substantial manner within the time prescribed, in order to authorize a recovery against the insurer, unless this is expressly [78] or impliedly waived or non-compliance is legally excused. Graham v. Niagara Fire Ins. Co., 106 Ga. 840 (32 S. E. 579); Stanley v. Sterling Mutual Life Ins. Co., 12 Ga. App. 475 (77 S. E. 664); Sterling Mutual Life Ins. Co. v. Stanley, 15 Ga. App. 263 (82 S. E. 826); National Life &c. Ins. Co. v. Jordan, 21 Ga. App. 647 (94 S. E. 862); Ætna Life Ins. Co. v. Allen, 49 Ga. App. 200 (174 S. E. 724); Travelers Ins. Co. v. Lancaster, 51 Ga. App. 390 (180 S. E. 641); Patrick v. Travelers Ins. Co., 51 Ga. App. 253 (180 S. E. 141); Lloyd v. Ætna Life Ins. Co., 50 Ga. App. 478 (178 S. E. 479). Where the plaintiff alleges his compliance with the terms of the policy, instead of a reason for a non-compliance, and proceeds to trial and verdict without amendment, he is "shut into the case which he makes.” Although a demand is alleged to have been made more than sixty days before the filing of the suit, and it is alleged that the company "has refused to pay,” this must be construed with the other averments, which distinctly disclose that the action is founded, not on a waiver by the insurer, but on a compliance by the insured with the provisions of the policy as to furnishing proof of disability. New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (8) (116 S. E. 922). The policy in this case is not like the policy involved in Travelers Ins. Co. v. Sanders, 47 Ga. App. 327 (4) (170 S. E. 387), which provided that "The insurance of any employee covered hereunder shall end when his employment with the employer shall end, except in a case where at the time of such termination the employee shall be totally disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit.” Applying the above principles to the uncontroverted facts of this case, a recovery in the plaintiff’s favor was not authorized, and the judge erred in overruling the motion for new trial. In this view, it is unnecessary to pass on the exceptions pendente lite or on any of the special assignments of error. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.