INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Densley

Court of Appeals of Georgia

INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Densley

202 S.E.2d 463, 130 Ga. App. 70, 1973 Ga. App. LEXIS 1228

CourtCourt of Appeals of Georgia

DecidedOctober 24, 1973

Docket48649

StatusPublished

Cited by3 cases

This text of 202 S.E.2d 463 (INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Densley) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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INTERSTATE LIFE & ACCIDENT INSURANCE COMPANY v. Densley, 202 S.E.2d 463, 130 Ga. App. 70, 1973 Ga. App. LEXIS 1228 (Ga. Ct. App. 1973).

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Opinion

Stolz, Judge.

This is an appeal from a judgment of the Superior Court of Baldwin County, via certificate for immediate review, denying the defendant’s motion to open default. This action is one by the beneficiary husband against the defendant insurer to recover double indemnity under his wife’s life insurance policy for her alleged accidental death plus attorney fees for bad faith. Held:

l.The defendant contends that it was prevented from determining the amount of its liability under the insurance policy because of the plaintiffs delay in authorizing the release to the defendant of "medical information” relating to the cause of the insured’s death. We disagree. Even assuming that the insured’s death *71 certificate was insufficient for the defendant to determine its liability under the policy, the plaintiff’s alleged delay in authorizing the release to the defendant of "medical information,” is not "providential cause preventing the filing of a plea” or "excusable neglect.” Code Ann. § 81A-155 (b) (Ga. L. 1966, pp. 609, 659; 1967, pp. 226, 238). The trial judge did not abuse his discretion in denying the defendant’s motion to open the default.

Submitted October 5, 1973 Decided October 24, 1973. Whitman & Copelan, Jesse Copelan, Jr., for appellant. Eva L. Sloan, for appellee.

2. Even assuming the validity of the defense sought to be raised in the motion to dismiss (i. e., that any action on the policy should be brought by the assignee funeral home, rather than by the plaintiff assignor), this defense was waived by not having been timely filed (Code Ann. § 81A-112 (h) (2); Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693), and could not be allowed filed after the motion to open the default was properly denied.

3. Accordingly, the judgment of the trial judge is affirmed and the case is returned to the trial court in order for the plaintiff to establish the amount of his unliquidated damages for attorney fees and for the entry of default judgment. See Code Ann. § 81A-155 (a).

Judgment affirmed.

Eberhardt, P. J., and Pannell, J., concur.

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Stolz, Judge.

This is an appeal from a judgment of the Superior Court of Baldwin County, via certificate for immediate review, denying the defendant’s motion to open default. This action is one by the beneficiary husband against the defendant insurer to recover double indemnity under his wife’s life insurance policy for her alleged accidental death plus attorney fees for bad faith. Held:

l.The defendant contends that it was prevented from determining the amount of its liability under the insurance policy because of the plaintiffs delay in authorizing the release to the defendant of "medical information” relating to the cause of the insured’s death. We disagree. Even assuming that the insured’s death *71 certificate was insufficient for the defendant to determine its liability under the policy, the plaintiff’s alleged delay in authorizing the release to the defendant of "medical information,” is not "providential cause preventing the filing of a plea” or "excusable neglect.” Code Ann. § 81A-155 (b) (Ga. L. 1966, pp. 609, 659; 1967, pp. 226, 238). The trial judge did not abuse his discretion in denying the defendant’s motion to open the default.

Submitted October 5, 1973 Decided October 24, 1973. Whitman & Copelan, Jesse Copelan, Jr., for appellant. Eva L. Sloan, for appellee.

2. Even assuming the validity of the defense sought to be raised in the motion to dismiss (i. e., that any action on the policy should be brought by the assignee funeral home, rather than by the plaintiff assignor), this defense was waived by not having been timely filed (Code Ann. § 81A-112 (h) (2); Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693), and could not be allowed filed after the motion to open the default was properly denied.

3. Accordingly, the judgment of the trial judge is affirmed and the case is returned to the trial court in order for the plaintiff to establish the amount of his unliquidated damages for attorney fees and for the entry of default judgment. See Code Ann. § 81A-155 (a).

Judgment affirmed.

Eberhardt, P. J., and Pannell, J., concur.

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202 S.E.2d 463, 130 Ga. App. 70, 1973 Ga. App. LEXIS 1228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/interstate-life-accident-insurance-company-v-densley-gactapp-1973.

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