Case v. RGA Insurance Services

Andrews, Presiding Judge,

concurring specially in part, and dissenting in part.

I agree the trial court erred in granting summary judgment to Hanover, but not for the reasons stated in the majority’s opinion. I disagree with the majority’s conclusion that the trial court erred in granting summary judgment to RGA.

1. In Division 1, the majority ignores a long line of cases holding that the uncontroverted affidavit of the insurance company stating that it would not have issued the policy had the question on the application been answered truthfully is enough to sustain summary judgment. In Hanover’s motion for summary judgment, it claimed *6that due to a material misrepresentation on the application it was entitled to deny recovery under the policy. Hanover relied on OCGA § 33-24-7 which provides that misrepresentations and concealment of facts on an application for insurance shall not prevent a recovery under the policy unless they are (1) fraudulent; (2) material either to the acceptance of the risk or to the hazard assumed by the insurer; or (3) the insurer either would not have issued the policy or would not have issued the policy in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss if the insurer had known the true facts. Hanover submitted the affidavit of the director of underwriting, stating that if Hanover had known about Andrea Case’s driving record, the company would not have issued the policy.

In Sanders v. Southern Farm &c. Ins. Co., 174 Ga. App. 888 (332 SE2d 33) (1985), this Court held that the affidavit of the vice-president of underwriting stating that the insurer would not have issued the policy if the application had been truthfully completed, was sufficient to sustain the grant of summary judgment to the insurance company. Id. at 889. Accord Celtic Life Ins. Co. v. Monroe, 220 Ga. App. 38 (467 SE2d 360) (1996); Hopkins v. Life Ins. Co. of Ga., 218 Ga. App. 591 (462 SE2d 467) (1995); Taylor v. Ga. Intl. Life Ins. Co., 207 Ga. App. 341 (427 SE2d 833) (1993); Davis v. John Hancock &c. Ins. Co., 202 Ga. App. 3, 5-6 (413 SE2d 224) (1991). Further, whether or not the applicant acted in good faith in completing the application is immaterial. Hopkins, supra at 593; Taylor, supra at 342. It is likewise immaterial that the loss was occasioned by an unrelated cause concerning which there was no misrepresentation. Hopkins, supra at 593.

The one case cited by the majority in support of its holding that the affidavit is not enough, Pa. Life Ins. Co. v. Tanner, 163 Ga. App. 330 (293 SE2d 520) (1982), involved an affidavit by an underwriter stating that “it was the policy of the insurance company to participate in life insurance coverage in a sum no greater than 10 to 12 times the annual earned income of the insured.” Id. at 334. This is not the same as stating unequivocally that the company would not have issued the policy if the application were truthfully completed, and does not warrant ignoring the long line of cases cited above.

The trial court, in granting Hanover’s motion for summary judgment, concluded that because Case signed the application in blank and authorized the agent to complete the application for her, she was therefore bound by it. As shown by the cases discussed above, that is not the law.

Moreover, the case relied on by the trial court, Southern Guar. Ins. Co. v. Ragan Ins. Agency , 212 Ga. App. 690 (442 SE2d 871) (1994) is not applicable. The issue in that case did not involve an application *7for insurance filled out by an agent according to answers given him by the insured, and the document signed in blank was a financing application. Id. at 692.

But, Case argues on appeal that Hanover is estopped from denying coverage where the agent, either through fraud or negligence has filled in the application incorrectly. I agree.

Here, the application required the applicant to “State all Operators.” Case’s uncontradicted testimony is that she told the agent that her son, daughter and daughter’s fiancé would be operating the boat. Hanover denied Case’s claim because she did not list her daughter as an operator of the boat.

The other question at issue on the application was: “Has any member of the household had a motor vehicle or boating accident or loss or been convicted of a moving violation within the past 5 years?” The answer “no” was checked on the application. At her deposition, Case was asked if she had a moving violation within three years of the application and she replied, “no. . . .”

Q Okay. So that is, then, correct as far as you? [sic]
A Yes, and it would have been correct for my children, too, because I didn’t know of any violations they had.
Q I thought you told me you were aware of two that she had. Are you saying they were beyond the three-year mark?
A After USAA told me that they would not cover because of her two — her — they didn’t even tell me “speeding.” I think they said because of her vehicle report, and then I asked — I confronted my daughter with it, and she told me she had had two speeding tickets. This is after USAA had declined me insurance because of my daughter’s driving record. That’s when I confronted my daughter with it, and she told me she had had two speeding tickets.
Q When you spoke on the phone with the agency, and she asked you who were going to be the operators, you told her you were primary and your son and daughter and her fiancé. Is that your testimony?
A Yes.
Q Did the lady then ask you about moving violations in the last three years for any or all of those people?
A She was reading these questions to me. I didn’t have this in front of me, so I can’t remember verbatim what she asked me as far as moving violations.
Q I only want you to tell me what you remember. Is it your *8testimony that you do not remember whether or not she asked you about violations?
A She must have asked me and I said no, but — I was not aware of any violations.
Q Okay. So if I understand you correctly, she did ask you about violations, and you said no, and as far as you knew then, that was correct [?]
A Yes, that’s correct.

Case later submitted an affidavit in which she amplified and explained her answers to these questions, stating that the agent read the questions to her over the phone, she did not have a copy of the questions in front of her, she did not remember verbatim what the agent asked her, she speculated that the agent must have asked her the question about the moving violations, but she honestly could not recall whether the agent asked her or not.

Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111 (281 SE2d 583) (1981) is on point and supports Case’s argument that Hanover is estopped from denying coverage. In Houk, the insured signed the application after the agent had filled in the answers but did not notice that the answers were marked incorrectly. Here, Case never saw the application and was not sent a copy of the application until after the accident with the boat.

The court in Houk relied on Stillson v. Prudential Ins. Co. of America, 202 Ga. 79 (42 SE2d 121) (1947) which also held the insurance company was estopped from denying coverage when the agent took down the answers untruthfully. In Stillson, the agent took down the answers for the insured and gave the insured the application to sign, covering the application with his hands, except for the signature line. The court held that if the insured was deceived by the agent and was ignorant that the application contained false answers, the insurance company was estopped from seeking to avoid liability on the policy. Id. at 83.

Likewise, in Tallent v. Safeco Ins. Co. of America, 99 Ga. App. 11 (107 SE2d 331) (1959), this Court reversed the trial court’s grant of a directed verdict for the insurance company. In that case, the company’s agent testified that she asked the plaintiff all the questions on the application for car insurance and filled out the answers in pencil. Then, in order to have a neater application, she had the plaintiff sign a blank application and typed in the answers contained in the pencil-written application.

The plaintiff testified that the only question the agent asked him was whether any person under the age of 25 would be driving the automobile. This Court held that if the jury had believed plaintiff’s *9version of events it would be authorized to find in favor of the plaintiff. Id. at 12. Moreover, the plaintiff was under no duty to examine the copy of the application he took to the bank because he was entitled to rely on the agent’s filling out the application correctly. Id. at 13.

It is true that: “An applicant is prima facie charged with knowledge of the contents of an application signed by him, but this may be rebutted.” Jessup v. Franklin Life Ins. Co., 117 Ga. App. 389, 391 (2) (160 SE2d 612) (1968).

With regard to whether one who signed the application may escape the consequences of an agent inserting untruthful answers therein, some of the cases have enunciated the principle that: Where an application is signed in blank and authority given by applicant to the agent of the company to fill out the application from information given him, any false answers inserted in the application, which is attached to and made a part of the policy issued, unless inserted by a misleading device or artifice perpetrated by such agent, will be binding on the applicant.2

(Citation and punctuation omitted.) O’Kelly v. Southland Life Ins. Co., 167 Ga. App. 455, 456 (305 SE2d 873) (1983).

In O’Kelly, the plaintiff’s wife signed a blank application, and the life insurance company tried to deny coverage after she died, claiming that the application contained false answers to some questions which were material to the risk involved in issuing the insurance. Id. at 455. The court in O’Kelly, after acknowledging the above-quoted rule concerning applicants who sign a blank application, then went on to cite Houk, supra, Stillson, supra, and Tallent, supra, among others, and concluded that the insurance company was not entitled to summary judgment under these holdings. O’Kelly, supra at 458.

Likewise, in Browning v. Davis, 167 Ga. App. 393 (306 SE2d 40) (1983), the insured argued that the agent never asked him whether he had previous fire losses within the past three years. The agent contended the question was asked, answered and correctly recorded. Therefore, this Court held the issue should have been submitted to a jury for determination. Id. at 395.

*10Here, there is no evidence from the agent as to whether or how she asked the questions and whether she filled in the answers correctly. Hanover and RGA do not dispute on appeal that the application was incorrectly filled out. Case’s uncontradicted deposition testimony is that she told the agent that there would be other operators; namely, her son, daughter and daughter’s fiancé. Case does not remember answering the question about moving violations of other members of her household, or even whether the agent asked her about the violations of other members of the household.

Therefore, construing the evidence in the light most favorable to Case as nonmovant, there is enough evidence that material misrepresentations were made to raise an issue as to whether the agent negligently or fraudulently completed the application. Thus, there is a jury issue as to whether or not Hanover was estopped from denying coverage on the boat. The trial court erred in granting Hanover’s motion for summary judgment.

2. I cannot join in Division 2 of the majority’s opinion because this issue was never raised in the trial court. Case never stated, either in her deposition or her affidavit, that she did not understand the term “household” as it was used in the insurance application. Indeed, her deposition testimony as set out above, is the only instance where the question is discussed, and Case’s answer clearly shows that she understood the meaning of the word “household.” Moreover, on appeal, Case does not point to, nor do we find, anywhere in the record which shows this issue was before the trial court.

Issues presented for the first time on appeal present nothing for us to review. This is a court for the correction of errors at law committed by the trial court where proper exception is taken. Angell v. Hart, 232 Ga. App. 222, 223 (2) (501 SE2d 594) (1998). Therefore, we cannot consider this argument on appeal.

3.1 dissent to the majority’s conclusion in Division 3 that RGA is not entitled to summary judgment. This Court has consistently held that while the insured may have a cause of action against the insurer for coverage, there is no authority that an applicant may recover from the agent for fraud in making material misrepresentations to induce an insurer to provide coverage which the applicant could not otherwise obtain.3

Therefore, the one injured due to the misrepresentations on the application is the insurance company, not Case, who was the benefi*11ciary of the alleged fraud or negligence.4 James, Hereford & McClelland v. Powell, 198 Ga. App. 604, 606 (402 SE2d 348) (1991). Accord Bolin v. Mass. Indem. & Life Ins. Co., 203 Ga. App. 570, 573 (3) (417 SE2d 325) (1992). See also Garrett v. Life Ins. Co. of Ga., 221 Ga. App. 315, 320 (471 SE2d 262) (1996).

Decided July 8, 1999 Kristopher Shepherd, for appellant. Mozley, Finlay son & Loggins, Robert M. Finlayson II, Edward C. Bresee, Lokey & Smith, Malcolm Smith, Jon W. Burton, for appellees.

The cases cited by plaintiff are not to the contrary. In BSF, Inc. v. Cason, 175 Ga. App. 271 (333 SE2d 154) (1985), decided before Powell, the agent appealed following a trial, claiming no expert evidence was introduced establishing the standard of care followed in the insurance industry and whether the agent deviated from this standard. Therefore, this Court was presented with a different issue on appeal than the one before us in this case. Id. at 272-273. Likewise, in Charles Parrott & Assoc. v. Hunt, 167 Ga. App. 106 (305 SE2d 879) (1983), the claim against the agent was for failure to notify the insurance company to add coverage for a trailer destroyed in a wreck. Id.

The only case cited by the majority, Beaver Ins. Agency v. Roland, 135 Ga. App. 263 (217 SE2d 484) (1975), is not applicable. That case holds that an independent insurance agent is personally liable for a breach of contract to procure insurance. Id. Therefore, in light of the above, the trial court did not err in granting RGA’s motion for summary judgment.

As previously stated, neither Hanover nor RGA ever sent Case a copy of the application. We agree with Hanover that there is no requirement that the application be made a part of the policy except where the policy is one for life insurance. OCGA § 33-25-2. That, however, is not the issue. Hanover cannot cite life insurance company cases in support of its position, and then argue that they were not required to attach a copy of the application to the policy.

Although Case stated in her affidavit “I could have called other insurers and obtained coverage but I did not believe that was necessary,” this is not evidence that Case could have procured other insurance. The only evidence before us is that neither USAA, Case’s automobile insurance company, nor Hanover, would have insured the boat due to the driving records of Case’s children.

Hanover files a cross-claim against RGA for indemnification; however, that issue is not before us in this appeal.