Morrison Dental Associates, P.C. v. Wilcher

Shulman, Chief Judge. Wilcher, while an employee of Morrison, made a claim on a group medical insurance policy issued by Lincoln National Life Insurance Company (“Lincoln”). The claim was denied on the ground that coverage had not commenced at the time of the surgery which formed the basis of the claim. Wilcher sued her employer on the ground that she had been assured by Morrison that she was covered by the insurance policy and would not have incurred the expense but for those assurances. Morrison filed a third-party action against Lincoln. This appeal is from the grant of summary judgment to Lincoln. Wilcher’s surgery was performed in July 1981. Lincoln’s position in this litigation is that the application for coverage for Wilcher was not received by it until July 13,1981. Under the terms of the policy, new employees became eligible for insurance “from the first day of the calendar month following acceptance by the Insurance Company.” Accordingly, August 1,1981, would have been the earliest that coverage could commence pursuant to an application received by this insurer in July. If, however, an application was received in June, it would have been possible for coverage to commence on July 1,1981. Appellant’s bookkeeper, Mrs. Morrison, swore by affidavit that she submitted in May an application signed by Wilcher; that that application was returned because it was not properly completed; that she subsequently mailed another application for Wilcher in late June; and that the second application was not returned by the insurer. In light of the conflicting testimony by affidavit concerning when and how many applications were sent and received by the various parties, issues of fact still exist which preclude the entry of judgment as a matter of law for either party. It was, therefore, error to [237] enter judgment for Lincoln. OCGA § 9-11-56 (Code Ann. § 81A-156). Decided April 7, 1983. Ronald H. Cohen, Noble L. Boykin, Jr., for appellant. Morton G. Forbes, Robert M. Ray, Jr., for appellee. Judgment reversed. McMurray, P. J., and Birdsong, J., concur.