Marsh v. Zurich Insurance Co.

163 S.E.2d 867, 118 Ga. App. 409, 1968 Ga. App. LEXIS 1414

• Court: Court of Appeals of Georgia
• Decided: September 3, 1968
• Docket: 43726
• Status: Published

Opinions

Pannell, Judge.

This is a claim by Jo Marie Marsh against the Zurich Insurance Company seeking recovery under a group medical policy. The case was submitted to the jury upon an agreed stipulation of fact as follows: “1. The parties stipulate the jurisdiction of the court. 2. The parties stipulate the terms and conditions of the insurance policy attached to plaintiff’s petition and that Jo Marie Marsh duly filed her claim for the benefits as set forth in her complaint. 3. Jo Marie Marsh was an employee of the Zurich Insurance Company in Atlanta, Georgia, and the Zurich Insurance Company issued to Jo Marie Marsh the policies atttached to plaintiff’s complaint. Jo Marie Marsh was at all times material living alone, employed, and providing her own support. 4. On or about June 6, 1966, when the contract of insurance was in full force and effect, Jo Marie Marsh was injured in an accident and incurred medical expenses in the amount of $2,364.85. 5. A. J. Marsh, plaintiff’s father, under an insurance plan through his employer and the Republican National Insurance Company received the sum of $1,848.08 in benefits as a result of medical expenses incurred by Jo Marie Marsh. 6. No portion of the $1,848.08 was used by A. J. Marsh to pay medical expenses incurred by Jo Marie Marsh. 7. Jo Marie Marsh did not own or receive any moneys from any medical insurance policy and does not have a policy of insurance of any type other than the policy in question. 8. Jo Marie Marsh is the named insured and the beneficiary under the policy of insurance attached to her complaint. 9. Zurich Insurance Company has refused and continues to refuse to pay Jo Marie Marsh the sum of $2,364.85, but has offered to pay $516.77, which amount is the difference between the moneys received by A. J. Marsh and the amount claimed by plaintiff. 10. Both parties agree that the disposition of this case is controlled by an interpretation of the non-duplicating provision in the insurance policy attached to plaintiff’s complaint which reads as follows: Non-Duplication. No payment will be made under this insurance for any medical expenses of the insured person to the extent that benefits or services are provided for such medical expenses under any group, Blue Cross, Blue Shield, or other insurance or pre-payment plan (including a plan under federal of state or other governmental laws) arranged through this or any other employer, union, trustee, or association. 11. Both parties stipulate, agree, and consent to the above and foregoing.” Based upon this stipulation and his construction of the policy, the trial judge ruled that the plaintiff could recover only $516.77, and rendered judgment accordingly. The plaintiff appealed. Held:

1. “This court has repeatedly applied the rule and stated it in different words, some of such decisions being Massachusetts Benefit Lije Assn. v. Robinson, 104 Ga. 256 (2), supra, where it is said: Tf a policy of insurance is capable of being construed in two ways, that interpretation must be placed upon it which is most favorable to the insured’ (italics ours); and Johnson v. Mutual Life Ins. Co., 154 Ga. 653 (1, 2) (115 SE 14), that; ‘If a policy of insurance is so drawn as to require an interpretation, and is fairly susceptible to two different constructions, the one will be adopted most favorable to the insured. Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be strictly construed against the insurer, as they are issued upon printed forms, prepared by experts at the insurer’s instance, in the preparation of which the insured has no voice.’ Again it is stated in Penn Mut. Life Ins. Co. v. Milton, 160 Ga. 168 (1) (127 SE 140, 40 ALR 1382): ‘If a policy of life insurance is capable of two constructions, that interpretation will be placed upon it which is most favorable to the insured.’ ” Davis v. United Amer. Life Ins. Co., 215 Ga. 521, 527 (111 SE2d 488).

Submitted June 5, 1968 Decided September 3, 1968 Rehearing denied September 25, 1968 Gilbert & Carter, Fred A. Gilbert, for appellant. Long, Weinberg & Ansley, Sidney F. Wheeler, for appellee.

2. Where a medical expense policy, as in the present case, contains a provision that “No payment will be made under this insurance for any medical expenses of the insured person to the extent that benefits or services are provided for such medical expenses under any group, Blue Cross, Blue Shield, or other insurance or pre-payment plan (including a plan under federal or state or other governmental laws) arranged through this or any other employer, union, trustee, or association,” such provision applies only to other insurance for which the insured person may, under the terms thereof, receive the benefits provided, and has no reference to policies where the benefits are solely for others and others are solely entitled thereto. Nothing here ruled is contrary to the ruling in Wise v. American Cas. Co., 117 Ga. App. 575 (161 SE2d 393), but accords therewith. For cases reaching a different result see Metropolitan Life Ins. Co. v. Smith, 6 Life Cases (2d) 1337 (CCH) (Conn. Cir. Ct. No. CV 18-6305-0990) (February 1, 1965). And see DiMauro v. Aetna Ins. Co., 116 Conn. 246, 248 (164 A 494).

3. The trial court erred in rendering the judgment complained of.

Judgment reversed.

Bell, P. J., Jordan, P. J., and Hall, J., concur. Whitman, J., concurs specially. Felton, C. J., Eberhardt, Deen, and Quillian, JJ., dissent.