Chester v. State Farm Mutual Automobile Insurance

174 S.E.2d 582, 121 Ga. App. 599, 1970 Ga. App. LEXIS 1289

• Court: Court of Appeals of Georgia
• Decided: March 18, 1970
• Docket: 44621
• Status: Published

Opinions

Deen, Judge.

Chester sued the defendant insurer for damages under an automobile liability insurance policy. The defendant denied coverage and moved for summary judgment contending that the appellant’s application on which the policy was issued contained the false statement that he had not had any insurance refused or canceled within three years of the date of the application, that the policy was issued in reliance on statements made in the application and that if a full and complete disclosure had been made by the plaintiff in his application defendant would not have issued the policy. The application was not attached to- the policy. It' contains no limitation on the authority of the soliciting agent. The policy recites that it is issued in consideration of the premium paid and in reliance upon the declarations contained therein. Held:

Argued September 11, 1969 Decided March 18, 1970 Rehearing denied April 3, 1970.

“Conditions which enter into the validity of a contract of insurance at its inception may be waived by the agent, and are waived if so intended, although they remain in the policy when delivered.” Mechanics & Traders Ins. Co. v. Mutual Real Estate &c. Assn., 98 Ga. 262 (25 SE 457); Johnson v. Aetna Ins. Co., 123 Ga. 404 (51 SE 339); Metropolitan Life Ins. Co. v. Hale, 177 Ga. 632 (170 SE 875). In the present case the evidence in opposition to the motion shows that the applicant informed the agent of the true facts, which were that he had taken out a policy with another company some two years previously, had subsequently received notice that the company intended to cancel the insurance for an unstated reason at a named future date, and that he then himself canceled the policy prior to such date and obtained other insurance. The agent then advised him that he did not think that would matter since he and not the insurer had in fact canceled the policy and the applicant relied on the agent’s statement to that -effect in making out the application. Actual knowledge of the agent of a misrepresentation in the application, absent fraudulent collusion or a limitation on the authority of the agent in the application, is imputed to the insurer and estops it from contending that had it known the true facts it would not have issued the policy. See also Reserve Life Ins. Co. v. Bearden, 96 Ga. App. 549 (1) (101 SE2d 120), aff., 213 Ga. 904 (102 SE2d 494) and Allstate Ins. Co. v. Anderson, 121 Ga. App. 582.

The trial court erred in granting the defendant’s motion for summary judgment.

Judgment reversed.

Beil, C. J., Panneil and Evans, JJ., concur. Eberhardt and Whitman, JJ., concur specially.' Jordan, P. J., Hall, P. J., and Quillian, J., dissent. James F. Becton, for appellant. Hitch, Miller, Beckmann & Simpson, A. Martin Kent, for appellee.