(Ga. L. 1906, p. 107, § 1; Civil Code 1910, § 2471; Code 1933, § 56-904; Code 1933, § 56-2502, enacted by Ga. L. 1960, p. 289, § 1; Ga. L. 1981, p. 936, § 2.)
Law reviews.- For note, "Misrepresentations and Nondisclosures in the Insurance Application," see 13 Ga. L. Rev. 876 (1979). For comment on National Life & Accident Ins. Co. v. Camp, 77 Ga. App. 667, 49 S.E.2d 670 (1948), see 11 Ga. B.J. 349 (1949).
JUDICIAL DECISIONSANALYSIS
This section is restrictive of the common-law right to contract and should be strictly construed; it is in the nature of the statute of frauds, designed for the protection of persons, insuring their lives or property, and restricts the right to make part of the contract of insurance to those things specifically mentioned, viz., "the application for insurance," and the "Constitution, bylaws, or other rules of the insurer." State Life Ins. Co. v. Tyler, 147 Ga. 287, 93 S.E. 415 (1917); Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934).
Statements made in application do not constitute warranties.
- Meaning of this section as to application for insurance is that statements made therein do not constitute warranties, the falsity of which will void the contract when the application is not attached to and made a part of the policy. Guest v. Kennesaw Life & Accident Ins. Co., 97 Ga. App. 840, 104 S.E.2d 633 (1958).
This section deals with insurance policy after issuance, and does not concern itself with interim protection afforded by the application and binder receipt on payment of the first full premium and acceptance of the risk by the insurance company. Guest v. Kennesaw Life & Accident Ins. Co., 97 Ga. App. 840, 104 S.E.2d 633 (1958).
This section does not limit the expression "independent contract." Gulf Life Ins. Co. v. Bloodworth, 73 Ga. App. 102, 35 S.E.2d 662 (1945).
Copy of application not part of policy unless attached thereto.
- Under this section, the application on which an insurance policy is based is not to be considered as a part of the insurance contract, unless a copy of the application is attached to or accompanies the policy; and this is true even though it is sought by the express terms of the policy itself to make such unattached application a part of the agreement. Bankers Health & Life Ins. Co. v. Murray, 22 Ga. App. 495, 96 S.E. 347 (1918); Wilkins v. National Life & Accident Ins. Co., 23 Ga. App. 191, 97 S.E. 879 (1919); Couch v. National Life & Accident Ins. Co., 34 Ga. App. 543, 130 S.E. 596 (1925); Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723, 134 S.E. 804 (1926); Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934).
Policy falls along with application if latter attached thereto.
- When, in conformity with this section, the application is attached to the policy and by the terms of the contract is made a part thereof, and when the authority of the medical examiner is limited, the beneficiary, in suing upon the policy, cannot impeach the application as thus integrated therein; if the application falls, so does the policy, and in founding the beneficiary's action upon the policy the beneficiary is committed to the proposition that the answers were made by the insured as set forth in the application. This rule is not changed by the fact that the plaintiff fails to include the application in the copy of the policy attached as an exhibit to the plaintiff's pleading. Metropolitan Life Ins. Co. v. James, 37 Ga. App. 678, 141 S.E. 500 (1928).
Plaintiff's failure to include application in copy of policy in pleading.
- When it appears that the application was in fact attached to the policy, and was by its terms made a part thereof, the mere fact that the plaintiff fails to include the application in the copy of the policy as attached to the plaintiff's pleading would not alter the rule. Wilkins v. National Life & Accident Ins. Co., 23 Ga. App. 191, 97 S.E. 879 (1919).
Agreement in application not attached to policy.
- When an application for an insurance policy provides that the insured agrees "that no agent of the Company or other person has any authority to waive or dispense with full, true, and complete answers hereon to any of the questions herein set forth, whether such questions relate to matters already known to said agent or not," the insertion of such an agreement is not effective as notice to the insured of limitations on the authority of an agent inasmuch as the application is not attached to the policy; otherwise, to allow this agreement contained in the application to serve as notice to the insured would have the effect of circumventing this section. Gulf Life Ins. Co. v. Bloodworth, 73 Ga. App. 102, 35 S.E.2d 662 (1945).
Penalty for noncompliance with section.
- Only penalty fixed by this section for failing to attach to a policy of insurance a correct copy of the application therefor, and of any bylaws, rules, or documents therein referred to, is that they may not be received in evidence either as a part of the policy or as an independent contract, and cannot be considered as part of the policy or contract between the parties. This rule does not apply to fraternal associations. Sovereign Camp of Woodmen of the World v. Keen, 16 Ga. App. 703, 86 S.E. 88 (1915); but see Heralds of Liberty v. Bowen, 8 Ga. App. 325, 68 S.E. 1008 (1910).
Effect of noncompliance with this section on the part of the insurance company is that the application shall not be considered a part of the insurance contract. Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934).
Merely by accepting policy, insured did not become bound by stipulation contained in unattached application, "that any misrepresentations or concealment of fact shall render any policy issued null and void and that no obligation shall exist against the company under such policy until the policy is actually issued and delivered to me while the person to be insured is alive and in sound health." Family Fund Life Ins. Co. v. Rogers, 90 Ga. App. 278, 82 S.E.2d 870 (1954).
Meaning of requirement that insured be in sound health.
- Requirement in policy of insurance that the insured be in sound health at the date of the issuance of the policy refers to a change in health between the time of taking the application for insurance and the date of the issuance of the policy, when the policy is issued without medical examination and without the application for insurance being attached to and made a part of the policy of insurance. Family Fund Life Ins. Co. v. Rogers, 90 Ga. App. 278, 82 S.E.2d 870 (1954).
Admissibility of attached application only after issuance of policy.
- If application for insurance policy contains an agreement that the application shall form a part of any policy issued thereunder, then the application would form a part of that policy so as to permit the application to be introduced in evidence in an action on the policy; until issuance of the policy, however, this rule of evidence does not come into effect, and the agreement as to the protection afforded remains as set forth in the application and binder receipt, the subject matter of which is the undelivered insurance policy. Guest v. Kennesaw Life & Accident Ins. Co., 97 Ga. App. 840, 104 S.E.2d 633 (1958).
Interim protection agreements not rendered illegal by section.
- Agreements providing for interim protection between the acceptance of the risk by the company and the actual delivery of the policy of insurance are not rendered illegal by this section. Guest v. Kennesaw Life & Accident Ins. Co., 97 Ga. App. 840, 104 S.E.2d 633 (1958).
Unnecessary to attach copy of anything contained in policy.
- In actions to recover money on insurance policies which come under this section, it is not necessary to attach a copy of anything written or printed upon the policy, or to set up anything other than what appears upon the face or in the body of the policy. Sovereign Camp of Woodmen of the World v. Keen, 16 Ga. App. 703, 86 S.E. 88 (1915).
Benefit certificates issued by fraternal associations not controlled by section.
- Former Civil Code 1910, § 2471 (see O.C.G.A. § 33-25-2) declared what shall constitute the policy of insurance, and was a distinct provision of the law of life insurance, and former Civil Code 1910, § 2869 (see O.C.G.A. § 33-15-82) had the effect to take from its operation benefit certificates issued by fraternal beneficiary orders or associations as defined in former Civil Code 1910, § 2866 (see O.C.G.A. § 33-15-1); it follows that, when a benefit certificate of a fraternal association refers to the application, constitution, and bylaws of the association as being a part of the contract, in an action on such benefit certificate, the application, constitution, and bylaws of the association are receivable in evidence as part of the contract of insurance. Fraternal Life & Accident Ass'n v. Evans, 140 Ga. 284, 78 S.E. 915 (1913); Supreme Ruling of Fraternal Mystic Circle v. Blackshear, 13 Ga. App. 329, 79 S.E. 210 (1913); Sovereign Camp of Woodmen of the World v. Keen, 16 Ga. App. 703, 86 S.E. 88 (1915); but see Heralds of Liberty v. Bowen, 8 Ga. App. 325, 68 S.E. 1008 (1910).
When a certificate of insurance was issued by a voluntary fraternal benefit association, former Code 1933, § 56-904 (see O.C.G.A. § 33-25-2) was not applicable, but former § 33-15-16 (see O.C.G.A. § 33-15-63) controlled. Sovereign Camp W.O.W. v. Reid, 53 Ga. App. 618, 186 S.E. 759 (1936).
Cited in Bankers Health & Life Ins. Co. v. Griffeth, 59 Ga. App. 740, 1 S.E.2d 771 (1939); Hubbard v. Kennesaw Life & Accident Ins. Co., 110 Ga. App. 870, 140 S.E.2d 237 (1965); Prudential Ins. Co. of Am. v. Perry, 121 Ga. App. 618, 174 S.E.2d 570 (1970).
Fraud in Unattached Applications
Statements made in the application are not to be treated as warranties or covenants on account of the failure or falsity of which the policy may be voided, unless a copy of the application is attached to the policy or accompanies the policy, though representations contained in the application, if fraudulently made, may give to the insurance company the right to void the policy. Bankers Health & Life Ins. Co. v. Murray, 22 Ga. App. 495, 96 S.E. 347 (1918); Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934).
Insurer may void policy for fraudulent procurement though application unattached. Thus, it has been held that while it is true that the representations as made in such an unattached application cannot be treated as a part of the contract, and are not to be taken as covenants or warranties, still, if such statements furnished the actual basis on which the policy was issued, and the statements were not only false but were also fraudulently made by the applicant acting on the applicant's behalf, the insurer may set up such facts as a means of voiding the policy, not under and by virtue of the terms of the contract, but for the reason that the insurance is thus shown to have been fraudulently procured. Johnson v. American Nat'l Life Ins. Co., 134 Ga. 800, 68 S.E. 731 (1910); Wilkins v. National Life & Accident Ins. Co., 23 Ga. App. 191, 97 S.E. 879 (1919); Life Ins. Co. v. Pate, 23 Ga. App. 232, 97 S.E. 874 (1919); Mutual Benefit Health & Accident Ass'n v. Bell, 49 Ga. App. 640, 176 S.E. 124 (1934).
Insurer may offer unattached application in evidence in action based on fraud.
- When a copy of the application is not attached to a policy of life insurance, the application does not form a part of the contract of insurance, and consequently the statements therein contained are not to be treated as warranties, and the statements' falsity would not void the policy as a matter of contract. National Life & Accident Ins. Co. v. Sneed, 40 Ga. App. 131, 149 S.E. 68 (1929).
When the application was not attached to and made a part of the policy, representations made by the insured in answering questions as to the insured's present state of health, previous illness, and other material matters, would not be considered as warranties or covenants by the insured, and the policy would not be voided on account of the untruthfulness of such statements, as a matter of contract, even when material to the risk; but if the insured had made such false statements for the purpose of fraudulently inducing the insurer to issue the policy, then the policy could be voided on account of the policy's fraudulent procurement. National Life & Accident Ins. Co. v. McKenney, 52 Ga. App. 466, 183 S.E. 659 (1936).
When an insurance company is seeking to cancel a policy on the ground of fraud in the policy's procurement, the company is not precluded from offering the application in evidence, although not attached. New York Life Ins. Co. v. Odom, 93 F.2d 641 (5th Cir. 1937), cert. denied, 304 U.S. 566, 58 S. Ct. 948, 82 L. Ed. 1532 (1938); Life & Cas. Ins. Co. v. Davis, 62 Ga. App. 832, 10 S.E.2d 129 (1940).
Application not having been attached to or made a part of the contract of insurance, the policy is not voidable because of the falsity of representations made by the insured as to the insured's state of health and whether or not the insured had had any previous illness, even though such statements are as to facts material to the risk, unless the act of the applicant for insurance was fraudulent. Bankers Health & Life Ins. Co. v. Griffeth, 59 Ga. App. 740, 1 S.E.2d 771 (1939).
When application was not attached to insurance policy nor made part of the contract, representations or concealments, although false and material to the risk, would not defeat recovery unless fraudulently made to obtain insurance, the rule in such cases being that when the insured has made false and fraudulent statements as to matters that are material to the risk, or fraudulently concealed such matters from the insurer, for the purpose of obtaining the insurance, and has thereby induced the insurer to issue the policy, the policy is void, not as a matter of contract, but because the policy has been procured by fraud. National Life & Accident Ins. Co. v. Dorsey, 69 Ga. App. 734, 26 S.E.2d 654 (1943).
Evidence justified finding of no fraudulent intent on part of applicant.
- When the evidence was sufficient to show that the answers given by the parent of the insured in applying for life insurance on the life of a child were made in good faith, that if the insured was afflicted with epilepsy as the insurance company contended, the parent did not know it, and that the agent who took the application was acquainted with the insured, and, being in a position to get first hand knowledge of the insured's health, gave it as the agent's opinion, both in an endorsement on the application and in the agent's testimony on the trial, that the applicant was in good health and was a good risk, the jury was authorized to find that there was no willful concealment or fraudulent intent by the plaintiff parent. National Life & Accident Ins. Co. v. Dorsey, 69 Ga. App. 734, 26 S.E.2d 654 (1943).
Misrepresentation in Attached Applications
Misrepresentations by agent on application imputable to insured when application part of contract.
- When, in conformity with this section, an application is actually attached to the policy of insurance, and by the terms of the contract is made a part thereof, any misrepresentation made by the agent in the application will be imputed to the insured, and the insured should not be permitted to claim under the contract without being held to have had knowledge of the statements made in the application actually attached to and forming an integral part of the contract as delivered, accepted, and sued on. Wilkins v. National Life & Accident Ins. Co., 23 Ga. App. 191, 97 S.E. 879 (1919); Southern Sur. Co. v. Fortson, 46 Ga. App. 265, 167 S.E. 335 (1933).
When agent who filled out application and delivered policy to insured had actual knowledge of such incorrect statements in the application, the insurer will be held to have had notice thereof and to be estopped from asserting the invalidity of the policy because of such incorrect statements in the application. Southern Sur. Co. v. Fortson, 46 Ga. App. 265, 167 S.E. 335 (1933).
Agent's willful misrepresentation on application imputable to insurer.
- When soliciting and forwarding applications for policies of insurance were within the scope of the duties of an agent of an insurance company, and such agent undertook to prepare for another an application for insurance, not attached to the policy, and willfully inserted therein a false answer to a material question, the agent will be regarded in so doing as the agent of the company, and not of the applicant, and the agent's knowledge of the falsity of the answer will be imputed to the company and the company will not be allowed to void the policy on the ground of a false warranty. National Life & Accident Ins. Co. v. Sneed, 40 Ga. App. 131, 149 S.E. 68 (1929).
Misrepresentation in application attached to policy may defeat recovery.
- When an application for life insurance is attached to and made a part of a policy, any misrepresentation in the application which changes the nature and character of the risk as contemplated in the policy may defeat a recovery, regardless of good faith on the part of the insured. Preston v. National Life & Accident Ins. Co., 196 Ga. 217, 26 S.E.2d 439 (1943).
Test regarding misrepresentations.
- Test in a case of false representation is not whether the matter represented shall have actually contributed to the contingency or event on which the policy is to become payable, but is whether it changed the nature and character of the risk and increased it as against the insurer under the particular policy, and by increase in risk is meant an increase that is at least substantial. While a false statement as to consultation or treatment for a slight or trivial ailment may not, without more, be considered as a material misrepresentation so as to void the policy, the illness need not be shown to have been serious, the true criterion being, as in case of misrepresentations as to other matters, substantial increase in risk. Metropolitan Life Ins. Co. v. Joye, 77 Ga. App. 357, 48 S.E.2d 751 (1948).
When the application is attached to and made a part of the policy, and false statements or representations are contained in such application, as a result of which the risk is increased, a recovery on the policy may be defeated on such grounds whether the statements and representations were made in good faith or fraudulently. Metropolitan Life Ins. Co. v. Joye, 77 Ga. App. 357, 48 S.E.2d 751 (1948).
RESEARCH REFERENCES
ALR.
- Insurance: incontestable clause as excluding a defense based upon public policy, 13 A.L.R. 674; 35 A.L.R. 1491; 170 A.L.R. 1040.
Application for reinstatement as within statute requiring application to be endorsed upon, or attached to, policy, 67 A.L.R. 1489.
Effect on provisions of insurance policy as to vacancy, of agent's representations made, or knowledge acquired, prior to issuance of policy, 96 A.L.R. 1259.
Insurance: sufficiency of insurer's compliance with statutory requisites as to attaching copy of application to, or making it part of, policy, 18 A.L.R.3d 760.
Negligent misrepresentation as "accident" or "occurrence" warranting insurance coverage, 58 A.L.R.5th 483.