A clause in any policy of life insurance which provides that the policy shall be incontestable after a specified period shall preclude only a contest of the validity of the policy and shall not preclude the assertion at any time of defenses based upon provisions in the policy which exclude or restrict coverage, whether or not the restrictions or exclusions are excepted in the clause.
(Code 1933, § 56-2509, enacted by Ga. L. 1960, p. 289, § 1.)
Law reviews.- For note, "Incontestability Clauses in Georgia Insurance Contracts," see 13 Ga. L. Rev. 850 (1979).
JUDICIAL DECISIONSGeorgia legislature and judiciary fully intend to treat the question of incontestability the same regardless of the type of policy issued. Keaten v. Paul Revere Life Ins. Co., 648 F.2d 299 (5th Cir. 1981).
To determine the coverage of a policy is not to contest the policy, but to apply the policy properly. Keaten v. Paul Revere Life Ins. Co., 648 F.2d 299 (5th Cir. 1981).
After period of incontestability has run, insurer is only barred from contesting validity of policy itself, e.g., on grounds of fraud in the procurement, etc.; it still reserves the right to deny any claim if it is not within the coverage as stated under the policy's terms, and this is true regardless of the import of any statements made in the application for insurance. Keaten v. Paul Revere Life Ins. Co., 648 F.2d 299 (5th Cir. 1981).
Validity of insurance policy is all that becomes incontestable, while conditions of insurance and coverage are unaffected; the fact that the policy had become incontestable would not operate to change the rule, since, though incontestable, the liability, in the absence of any waiver, is measured by the terms and provisions of the policy itself. Keaten v. Paul Revere Life Ins. Co., 648 F.2d 299 (5th Cir. 1981).
Insurance company is not precluded from showing that particular claim is not covered within the terms and provisions of the policy because of restrictions and exclusions therein, although the company would have been precluded from asserting as a defense the invalidity of the policy because of the fraud in the policy's procurement or any other ground affecting the validity of the policy as a whole. Keaten v. Paul Revere Life Ins. Co., 648 F.2d 299 (5th Cir. 1981).
Cited in Gulf Life Ins. Co. v. Lanier, 114 Ga. App. 277, 151 S.E.2d 161 (1966); Ballinger v. C & S Bank, 139 Ga. App. 686, 229 S.E.2d 498 (1976); Schulman v. Federated Life Ins. Co., 154 Ga. App. 479, 268 S.E.2d 704 (1980).
RESEARCH REFERENCES
Am. Jur. 2d.
- 44 Am. Jur. 2d, Insurance, § 749 et seq.
C.J.S.- 46 C.J.S., Insurance, § 1222 et seq.
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.
Time when incontestable clause in life insurance policy becomes effective; death of insured before and of contestable period, 31 A.L.R. 108; 85 A.L.R. 234; 105 A.L.R. 992.
Incontestable clause in life or accident policy as affected by statute invalidating agreements fixing period of limitation different from that prescribed by the statute of limitations, 41 A.L.R. 1105.
Insurance: effect of incontestable clause on supplemental contracts, 45 A.L.R. 1369.
Express exception in incontestability clause as negativing other exceptions thereto, 88 A.L.R. 773.
Applicability of incontestable clause to defense based on false impersonation or mistake as to identity of person insured, 98 A.L.R. 710.
Incontestable clause as applicable to suit to reform insurance policy, 7 A.L.R.2d 504.
Incontestability clause as precluding insurer from defending on ground of particular clause in life policy limiting or precluding insurer's liability because of other life insurance, 22 A.L.R.2d 809.
What amounts to contest within contemplation of incontestable clause, 95 A.L.R.2d 420.
Misrepresentation as to employer- employee relationship as within incontestability clause of group insurance, 26 A.L.R.3d 632.
Suicide clause of life or accident insurance as affected by incontestable clause, 37 A.L.R.3d 337.
Liability under life or accident policy not containing a "violation of the law" clause, for death or injury resulting from violation of law by insured, 43 A.L.R.3d 1120.