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Action on insurance policy. Chatham Superior Court. Before Judge Harrison.
FELTON, Chief Judge.
In an action by the beneficiary of a life insurance policy against the insurer to recover for the loss, the act of the insurer's agent of withholding from the beneficiary the policy, or a copy thereof, which policy had never been delivered to either the insured or the beneficiary, estopped the insurer from asserting by a plea of limitation the defense based upon a provision of the policy requiring a suit thereon to be brought within two years from the date of the death of the insured,
Marcell Lanier filed a suit on March 28, 1962, in Chatham Superior Court as beneficiary of a life insurance policy issued by the defendant, Coastal States Life Insurance Company, on the life of his brother.
The petition alleged substantially as follows: decedent insured had made two premium payments prior to the issuance date of the policy, August 17, 1959, which was the last day on which the decedent was seen alive, his body having been found on August 30, 1959. A coroner's jury found the death to have been accidental. An agent of the defendant attempted to deliver the policy to the insured on August 19, 1959, and, being unable to locate the insured, returned it to the defendant company. The plaintiff made written demands upon the defendant's counsel on December 24, 1959, and on February 25, 1960, for payment for the loss and a written request for copies of the application and the policy, which were in the defendant's possession. Defendant's counsel refused to comply with the plaintiff's request for the copies and denied the insurer's liability on the basis that the policy covered injuries occurring after the date of the policy, whereas both the certificate of death and the claim form fixed the date of death on the same day as the date of the policy.
To the petition the defendant filed general and special demurrers, an answer, a motion to strike and a plea of limitation asserting as a defense the plaintiff's failure to file suit within the contractual limitation of two years after the insured's death. The court sustained the plea, dismissing the petition, to which judgment the plaintiff excepts.
It is well settled that reasonable contractual limitations in insurance policies on the time within which suits may be commenced after the inception of the loss are valid contractual provisions and that in the absence of facts to show a waiver by or estoppel against the insurer, the provision is binding upon the insured, and the insurer is entitled to rely on it. Aiken v. Northwestern &c. Ins. Co., 106 Ga. App. 220 (126 SE2d 630) and cit. The mere denial by the insurer of all liability or its refusal to pay does not in itself waive such provisions. Metro- politan Ins. Co. v. Caudle, 122 Ga. 608 (50 SE 337); Skeen v. American Nat. Ins. Co., 59 Ga. App. 364 (1 SE2d 44). There must be something more, such as an affirmative act of concealment, which gives evidence that the insurer is not fulfilling its obligation to the insured of the utmost fair dealing. 171 ALR 579.
In Union Fire Ins. Co. of Paris v. Stone, 41 Ga. App. 49 (152 SE 146), the insured had delivered his policy to an agent of the insurance company for the purpose of having attached to it a "loss-payable clause" and he sustained a loss while the policy was in the possession of the insurer. The insurer denied liability and refused to redeliver the policy to the insured at his request and while it was in the insurer's possession the time for bringing a suit under the contractual limitation expired. The court (headnote 2), in holding that the insurer's conduct estopped it from asserting the contractual limitation as a defense to the insured's suit, said that "where the necessity for an assertion by either party of a right under the policy does not arise until after the insured has parted with possession of the policy, the company, in equity and good conscience, cannot afterwards, while wrongfully withholding the policy from the insured, assert a right which, under the terms of the policy, would not have accrued to it but for the conduct of the insured after he had parted with possession of the policy, and the accrual of which right to the company the insured, but for his ignorance of the contents of the policy, could have prevented." The case at bar is an even stronger one for the insured, in that the plaintiff had never even had access to the policy at all because the company not only had never delivered the original policy to the insured, or, upon his death, to the beneficiary, but had refused to supply the beneficiary with even a copy of the policy by which to ascertain his rights arising thereunder. While it is true that, under the provisions of Code 37-116, "notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led" and "ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of parties," the plaintiff's failure to discover the two-year contractual limitation in the policy was not caused by his own negligence, but rather by the insurer's affirmative act of withholding from him the policy to which he was entitled as beneficiary and which was necessary for the bringing of a suit thereon. The plaintiff's request for the copy of the policy from the insurer's agent, its counsel, was all the inquiry which should reasonably be required of him under the circumstances. It would be unconscionable to allow the insurer to decide the merits of the plaintiff's claim and at the same time to withhold tile papers by which the plaintiff might ascertain his rights under the policy and bring suit to prove his claim.
The court erred in sustaining the plea of limitation.
Judgment reversed. Bell and Hall, JJ., concur.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Connerat, Dunn, Hunter, Cubbedge & Houlihan, Spencer Connerat, Jr., contra.
Austin & Moore, Donald E. Austin, Wm. H. Moore, for plaintiff in error.
Friday May 22 22:57 EDT

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