New York Life Insurance v. Schneider

Birdsong, Judge. Appellant-insurer’s application for interlocutory appeal was granted to review the order of the trial court overruling its motion for summary judgment contesting coverage on a health and accident insurance policy issued to Mrs. Schneider on February 27,1978. The insurance policy excluded from coverage for two years any pre-existing condition, which was defined as “a bodily injury, illness or disease, or the symptoms thereof, for which medical advice or treatment was recommended by, or received from, a physician, or which would cause an ordinarily prudent person to seek diagnosis, care or treatment, within the 5 year period immediately preceding the effective date of coverage for that person under the policy.” (Emphasis supplied.) In paragraph 3 (h) of the application, Mrs. Schneider was required to answer whether she had ever consulted a physician or been treated for “epilepsy, convulsions, dizziness, loss of consciousness, frequent headaches or other nervous system disorder,” and she checked the “no” box denying such treatment or consultation. Paragraph 6 (e) questioned whether, other than as stated, the applicant had within the past five years “consulted any physician or practitioner for any reason, including routine or checkup examination.” Mrs. Schneider responded affirmatively and listed in the section which required “full details for each ‘yes’ answer” only that in July of 1977 she had been treated for a 40% loss of hearing in [769] her right ear. On March 26,1978, Mrs. Schneider was admitted to the hospital for treatment of frequent headaches which, according to the hospital records, began in August, 1977, caused by a “benign pseudotumor cerebri.” When her claim for medical expenses was refused, Mrs. Schneider sued and the insurer defended on the grounds that it had the right to rescind the insurance contract because she had made material misrepresentations in her application; or, in the alternative, that her hospitalization was for diagnosis and treatment of a pre-existing condition as defined in the policy, and thus specifically excluded from coverage. In denying appellant’s motion for summary judgment, the trial court stated, inter alia: “Mrs. Schneider has admitted to having been treated twice by Dr. J. E. Barfield, her family physician, for migraine headaches over a period of eleven months. [Appellant] argues that, since [Mrs. Schneider] did not mention these treatments in her application for insurance, it is entitled to rescind the contract. It argues that the failure of Mrs. Schneider to mention these treatments in her application constitutes a material misrepresentation. On the other hand [Mrs. Schneider] contends that the headaches were nothing out of the ordinary and that they were not ‘frequent.’ “The second argument advanced by [appellant] is that the frequent headaches were a pre-existing condition and, hence, not covered under the terms of the policy. Mrs. Schneider was treated for a benign pseudotumor cerebri. . . This was the first time this particular condition was diagnosed. Under the terms of the policy, a pre-existing condition is one which has been diagnosed by a physician prior to the effective date of coverage and for which treatment is rendered subsequent thereto. . . “The court agrees that [Mrs. Schneider] had a duty to fully and truthfully inform [appellant] as to her condition and she may have failed to do so. [Appellant] asks that this court, as a matter of law, treat this alleged failure to fully inform as being the requisite misrepresentation which would prevent [Mrs. Schneider] from recovering her expenses from [it]. This the court cannot do... Can the court state as a matter of law that Mrs. Schneider knew that she had a benign pseudotumor cerebri? Again, the answer must be in the negative... From the records before the court it is clear that while symptoms may have existed prior to the day on which the policy was to become effective, the advice and treatment for the condition was given after the date on which the insurance became effective.” Held: It is clear, as the quoted language from the policy shows, that a pre-existing condition includes the symptoms of an illness or disease for which medical advice was sought or received within five years prior to coverage, and that the policy does not require that the illness [770] or disease be diagnosed prior to coverage. Thus the trial court’s erroneous construction of the policy was the básis for its finding that there was no pre-existing condition. Under the policy if Mrs. Schneider’s symptoms, i. e., frequent headaches, were treated prior to the date the policy went in effect, even though the condition (benign pseudotumor cerebri) was not diagnosed until after coverage began, the condition would be defined as pre-existing under the policy and not be covered. The policy required that she “give full details for each” consultation with “any physician or practitioner for any reason, including routine or checkup examination” within the past five years. Mrs. Schneider indicated only one treatment in 1977 for a 40% hearing loss in one ear. After filing her claim and bringing this action based upon it, however, she admitted in her response to appellant’s request for admissions that she had in fact received treatment for headaches upon at least five separate occasions during the year preceding her insurance application. Although she subsequently averred in an affidavit filed in opposition to appellant’s motion for summary judgment that “I did not complain to Dr. Garrison [an optometrist] that I had frequent headaches, but may have mentioned my eyes were giving me trouble,” and that Dr. Deese (a chiropractor) gave her “routine spinal adjustments” to relieve tension and anxiety but not as a treatment for any particular symptoms, no attempt was made to explain why at least two other visits (on November 26,1977 and January 17,1978) to Dr. Barfield for treatment of headaches were not mentioned in the application for insurance. Code Ann. § 56-2409 provides a defense where material misrepresentations are made on the application for insurance. “ ‘Whether misrepresentations are material is ordinarily a question for the jury; but where, as here, the evidence excludes every reasonable inference except that they were material, no issue is presented upon that point for determination by the jury.’ ” New York Life Ins. Co. v. Hollis, 177 Ga. 805, 807 (171 SE 288); see also Prudential Ins. Co. v. Perry, 121 Ga. App. 618 (174 SE2d 570) and cits. (pp. 626-627) for holdings that misrepresentation as to past medical attention is material as a matter of law. See also Jefferson Standard Life Ins. Co. v. Bridges, 147 Ga. App. 5 (248 SE2d 5). This policy states on its face that unless all answers given in the application are “complete and true representations ... of those matters inquired about,” the policy shall not take effect. Since the policy also expressly included “symptoms” in the definition of a “pre-existing condition” which was required to be disclosed, these misrepresentations were material as a matter of law. For the foregoing reasons, it follows that the trial court erred in refusing to [771] rule that Mrs. Schneider’s treatment was for a pre-existing condition as precluded in the policy, and that her failure fully to inform was a material misrepresentation preventing her from recovering her expenses from appellant. Accordingly, the denial of appellant’s motion for summary judgment must be reversed. Argued June 4, 1980 Decided September 19, 1980 David R. Smith, W. Ward Newton, for appellant. D. Duston Tapley, Jr., for appellee. Judgment reversed. Quillian, P. J., Shulman and Sognier, JJ., concur. Banke and Carley, JJ., concur in the judgment only. Deen, C. J, McMurray, P. J, and Smith, J., dissent.