TITLE 33 INSURANCE

Section 29. Individual Accident and Sickness Insurance, 33-29-1 through 33-29-22.

ARTICLE 4 UNDERWRITING AND RATE RISKING

33-29-3. Required policy provisions.

Each accident and sickness policy delivered or issued for delivery in this state shall contain the provisions specified in subsection (b) of this Code section in the words in which the same appear in subsection (b) of this Code section, except that the insurer may, at its option, substitute for one or more of such provisions corresponding provisions of different wording approved by the Commissioner which are in each instance not less favorable in any respect to the insured or the beneficiary. The provisions shall be preceded individually by the captions appearing in this Code section, or, at the option of the insurer, by such appropriate individual or group captions or subcaptions as the Commissioner may approve. If any such provision is in whole or in part inapplicable to or inconsistent with the coverage provided by a particular form of policy, the insurer, with the approval of the Commissioner, shall omit from such policy any inapplicable provision or part of a provision and shall modify any inconsistent provision or part of a provision in such manner as to make the provision as contained in the policy consistent with the coverage provided by the policy.
1. ENTIRE CONTRACT; CHANGES. This policy, including the endorsements and the attached papers, if any, constitutes the entire contract of insurance. No change in this policy shall be valid until approved by an executive officer of the insurer and unless such approval is endorsed hereon or attached hereto. No agent has authority to change this policy or to waive any of its provisions.
  1. After two years from the date of issue of this policy and in the absence of fraud, no misstatements made by the applicant in the application for such policy shall be used to void the policy or to deny a claim for loss incurred or disability, as defined in the policy, commencing after the expiration of such two-year period. In order for the insurer to void the policy or to deny a claim for loss incurred or disability based upon an applicant's fraudulent misstatement in an application, a copy of such application must be furnished to the policyholder or his or her beneficiary, and such fraudulent misstatement must have been in writing, must be material to the risk assumed by the insurer, and, in the case of a claim, must also relate to the specific type of loss or disability for which the claim is made.
    1. The policy provision in subparagraph (A) of this paragraph shall not be so construed as to affect any legal requirements for avoidance of a policy or denial of a claim during such initial two-year period, nor to limit the application of paragraphs (1) through (3) of subsection (b) of Code Section 33-29-4 in the event of misstatement with respect to age or occupation or other insurance. For purposes of this paragraph, fraud means the willful misrepresentation of a material fact.
    2. A policy which the insurer has the right to continue in force subject to its terms by the timely payment of premium until at least age 60 or, in the case of a policy issued after age 54, for at least five years from its date of issue may contain in lieu of the provisions of subparagraph (A) of this paragraph the following provision, from which the clause in brackets may be omitted at the insurer's option, under the caption "incontestable": In the absence of fraud and after this policy has been in force for a period of two years during the lifetime of the insured, excluding any period during which the insured is disabled, it shall become incontestable as to the statements contained in the application.
  2. In the absence of fraud, no claim for loss incurred or disability, as defined in the policy, commencing after two years from the date of issue of this policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of this policy.
    GRACE PERIOD. A grace period of ________ days will be granted for the payment of each premium falling due after the first premium, during which grace period the policy shall continue in force. The insurer shall insert in the blank space a number not less than "seven" for weekly premium policies, "ten" for monthly premium policies and "30" for all other policies. A policy in which the insurer reserves the right to refuse renewal shall have at the beginning of the above provision the following language: "unless not less than 30 days prior to the premium due date the insurer has delivered to the insured or has mailed to his last address as shown by the records of the insurer written notice of its intention not to renew this policy beyond the period for which the premium has been accepted. . . ."
  3. If any renewal premium is not paid within the time granted the insured for payment, a subsequent acceptance of any premium by the insurer or by any agent duly authorized by the insurer to accept the premium, without requiring in connection therewith an application for reinstatement, shall reinstate the policy; provided, however, that, if the insurer or such agent requires an application for reinstatement and issues a conditional receipt for the premium tendered, the policy will be reinstated upon approval of such application by the insurer or, lacking such approval, upon the forty-fifth day following the date of such conditional receipt unless the insurer has previously notified the insured in writing of its disapproval of such application. The reinstated policy shall cover only loss resulting from any accidental injury as may be sustained after the date of reinstatement and loss due to such sickness as may begin more than ten days after that date. In all other respects the insured and insurer shall have the same rights thereunder as they had under the policy immediately before the due date of the defaulted premium, subject to any provisions endorsed hereon or attached hereto in connection with the reinstatement. Any premium accepted in connection with a reinstatement shall be applied to a period for which premium has not been previously paid, but not to any period more than 60 days prior to the date of reinstatement.
  4. The last sentence of subparagraph (A) of this paragraph may be omitted from any policy which the insured has the right to continue in force subject to its terms by the timely payment of premiums, until at least age 60, or, in the case of a policy issued after age 54, for at least five years from its date of issue.
  5. Written notice of claim must be given to the insurer within 20 days after the occurrence or commencement of any loss covered by the policy or as soon thereafter as is reasonably possible. Notice given by or on behalf of the insured or the beneficiary to the insurer at ______________ (insert the location of such office as the insurer may designate for the purpose), or to any authorized agent of the insurer, with information sufficient to identify the insured, shall be deemed notice to the insurer.
  6. In a policy providing a loss-of-time benefit which may be payable for at least two years, an insurer may at its option insert the following provision between the first and second sentences of subparagraph (A) of this paragraph:
    "Subject to the qualifications set forth below, if the insured suffers loss of time on account of disability for which indemnity may be payable for at least two years, he shall at least once in every six months after having given notice of claim give to the insurer notice of continuance of said disability, except in the event of legal incapacity. The period of six months following any filing of proof by the insured or any payment by the insurer on account of such claim or any denial of liability in whole or in part by the insurer shall be excluded in applying this provision. Delay in the giving of such notice shall not impair the insured's right to any indemnity which would otherwise have accrued during the period of six months preceding the date on which such notice is actually given."
    
    TIME OF PAYMENT OF CLAIMS. The policy shall include a provision incorporating and restating the substance of the provisions of subsections (b) and (c) of Code Section 33-24-59.5, relating to time limits for payment of claims for benefits under health benefit policies and sanctions for failure to pay timely. If a policy provides benefits for loss of time, such policy shall also provide that, subject to proof of such loss, all accrued benefits payable under the policy for loss of time will be paid not later than at the expiration of each period of 30 days during the continuance of the period for which the insurer is liable and any balance remaining unpaid at the termination of such period will be paid immediately upon receipt of such proof.
    
    PROOFS OF LOSS. Written proof of loss must be furnished to the insurer at its office, in case of a claim for loss for which this policy provides any periodic payment contingent upon continuing loss, within 90 days after the termination of the period for which the insurer is liable and, in case of claim for any other loss, within 90 days after the date of such loss. Failure to furnish proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity, later than one year from the time proof is otherwise required.
    
    CLAIM FORMS. The insurer, upon receipt of a notice of claim, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If the forms are not furnished within ten working days after the giving of the notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting, within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, the character, and the extent of the loss for which claim is made.
  7. Indemnity for loss of life will be payable in accordance with the beneficiary designation and the provisions respecting such payment which may be prescribed herein and effective at the time of payment. If no such designation or provision is then effective, such indemnity shall be payable to the estate of the insured. Any other accrued indemnities unpaid at the insured's death may, at the option of the insurer, be paid either to such beneficiary or to such estate. All other indemnities will be payable to the insured.
  8. The following provisions, or either of them, may be included with the provisions of subparagraph (A) of this paragraph at the option of the insurer:
    1. If any indemnity of this policy shall be payable to the estate of the insured or to an insured or beneficiary who is a minor or otherwise not competent to give a valid release, the insurer may pay such indemnity, up to an amount not exceeding $________ (insert an amount which shall not exceed $1,000.00), to any relative by blood or connection by marriage of the insured or beneficiary who is deemed by the insurer to be equitably entitled thereto. Any payment made by the insurer in good faith pursuant to this provision shall fully discharge the insurer to the extent of such payment;
    2. Subject to any written direction of the insured in the application or otherwise, all or a portion of any indemnities provided by this policy on account of hospital, nursing, or medical services may, at the insurer's option and unless the insured requests otherwise in writing not later than the time of filing proofs of such loss, be paid directly to the hospital or person rendering such services; but it is not required that the service be rendered by a particular hospital or person.
The first clause of paragraph (12) of subsection (b) of this Code section, relating to the irrevocable designation of beneficiary, may be omitted at the insurer's option.
The provisions of this Code section shall also apply to individual accident and sickness insurance policies issued by a fraternal benefit society, a health care corporation, a health maintenance organization, or any other similar entity.

(2) T IME LIMIT ON CERTAIN DEFENSES.

(4) R EINSTATEMENT.

(5) N OTICE OF CLAIM.

(9) P AYMENT OF CLAIMS.

PHYSICAL EXAMINATIONS AND AUTOPSY. The insurer at its own expense shall have the right and opportunity to examine the person of the insured when and as often as it may reasonably require during the pendency of a claim hereunder and to make an autopsy in case of death where it is not forbidden by law.

LEGAL ACTION. No action at law or in equity shall be brought to recover on this policy prior to the expiration of 60 days after written proof of loss has been furnished in accordance with the requirements of this policy. No action shall be brought after the expiration of three years after the time written proof of loss is required to be furnished.

CHANGE OF BENEFICIARY. Unless the insured makes an irrevocable designation of beneficiary, the right to change of beneficiary is reserved to the insured and the consent of the beneficiary or beneficiaries shall not be requisite to surrender or assignment of this policy or to any change of beneficiary or beneficiaries, or to any other changes in this policy.

(Code 1933, § 56-3004, enacted by Ga. L. 1960, p. 289, § 1; Ga. L. 1982, p. 3, § 33; Ga. L. 1982, p. 1678, §§ 2, 5; Ga. L. 1983, p. 3, § 24; Ga. L. 1984, p. 22, § 33; Ga. L. 1990, p. 8, § 33; Ga. L. 1995, p. 745, § 2.8; Ga. L. 1998, p. 1064, § 7; Ga. L. 1999, p. 289, § 3; Ga. L. 2017, p. 164, § 38/HB 127.)

The 2017 amendment, effective July 1, 2017, deleted "a hospital service nonprofit corporation, a nonprofit medical service corporation," following "fraternal benefit society," in the middle of subsection (d).

Editor's notes.

- Ga. L. 1981, p. 1009, § 3, not codified by the General Assembly, provides that the amendment of this Code section shall apply to policies issued, delivered, issued for delivery, renewed, or amended in this state on or after July 1, 1981.

Ga. L. 1999, p. 289, § 6, not codified by the General Assembly, provides that this Act shall apply to plans, policies, or contracts issued, delivered, issued for delivery, or renewed on or after July 1, 1999.

Law reviews.

- For review of 1998 legislation relating to insurance, see 15 Ga. St. U.L. Rev. 153 (1998). For note, "Incontestability Clauses in Georgia Insurance Contracts," see 13 Ga. L. Rev. 850 (1979). For note, "Wrongful Refusal to Pay Insurance Claims in Georgia," see 13 Ga. L. Rev. 935 (1979).

JUDICIAL DECISIONS

Application.

- In an action by an insurer seeking rescission of a policy, O.C.G.A. § 33-29-3 did not apply since the policy was issued and delivered in another state. World Ins. Co. v. Branch, 966 F. Supp. 1203 (N.D. Ga. 1997), vacated on other grounds, 156 F.3d 1142 (11th Cir. 1998).

If applicant for insurance does not read application, applicant is still charged with the knowledge of the application's contents. Keaten v. Paul Revere Life Ins. Co., 648 F.2d 299 (5th Cir. 1981).

Implied waiver and estoppel unavailable.

- Doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, or the insurer's agent, are not available to bring within the coverage of a policy risks not covered by the policy's terms, or risks expressly excluded therefrom. Keaten v. Paul Revere Life Ins. Co., 648 F.2d 299 (5th Cir. 1981).

Grace period as part of policy.

- Paragraph (b)(3) of O.C.G.A. § 33-29-3 provides that as to each premium after the first, there shall be a 30-day grace period on policies whose premiums are not payable weekly or monthly, which provision is as much a part of the policy of insurance as though written therein. Iowa State Travelers Mut. Ass'n v. Cadwell, 113 Ga. App. 128, 147 S.E.2d 461 (1966).

Payment of premium after grace period no defense.

- When the liability attaches under the contract of insurance during the grace period, the fact that the premium is not paid or tendered until after the grace period expires is no defense to an action on the policy for a loss sustained while the policy was in full force. Iowa State Travelers Mut. Ass'n v. Cadwell, 113 Ga. App. 128, 147 S.E.2d 461 (1966).

Waiver of timely notice by insurer.

- Causing the insured to procure and transmit information regarding medical history, physician's statements, and admission and discharge statements from the hospital amounts to a waiver of timely notice by the insurer. Browder v. Aetna Life Ins. Co., 126 Ga. App. 140, 190 S.E.2d 110 (1972).

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 the claim 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).

Pay or notify provisions not triggered without completed claim form.

- Medical bills submitted by the insured to the insurer did not trigger the pay or notify provisions of paragraph (b)(8) of O.C.G.A. § 33-29-3, since the bills were not accompanied by a completed claim form. Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79, 380 S.E.2d 751, cert. denied, 191 Ga. App. 923, 380 S.E.2d 751 (1989).

Incontestability clauses are valid and render contracts of insurance incontestable, precluding all defenses, inclusive of fraud, save as those defenses may come within clear exceptions. Blue Cross & Blue Shield of Ga., Inc. v. Sheehan, 215 Ga. App. 228, 450 S.E.2d 228 (1994).

Two-year period of incontestability in a health insurance policy was not tolled by the insured's fraudulent misrepresentations on the application and subsequent failure to file claims for more than two years. Blue Cross & Blue Shield of Ga., Inc. v. Sheehan, 215 Ga. App. 228, 450 S.E.2d 228 (1994).

Cited in Thompson v. Metropolitan Life Ins. Co., 115 Ga. App. 724, 155 S.E.2d 728 (1967); Mutual Benefit Health & Accident Ass'n v. Reed, 144 Ga. App. 853, 242 S.E.2d 731 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

- 43 Am. Jur. 2d, Insurance, §§ 280, 457, 842. 44 Am. Jur. 2d, Insurance, § 1323 et seq.

C.J.S.

- 44 C.J.S., Insurance, § 486 et seq. 45 C.J.S., Insurance, § 882. 46A C.J.S., Insurance, §§ 1783, 1788, 1789, 1974, 1975.

ALR.

- Accident insurance: reasonableness of time of notice of accident or injury as a question for the jury, 7 A.L.R. 186.

Provisions for autopsy in policy of life or accident insurance, 15 A.L.R. 614; 88 A.L.R. 984; 30 A.L.R.2d 837.

Denial of liability as waiver of proofs of loss required by insurance policy, 22 A.L.R. 407; 49 A.L.R.2d 161.

Liability of insurer under policy payable to representatives or estate as between domiciliary and ancillary representative, 24 A.L.R. 148.

Accident insurance: time for giving notice of accident as affected by delay in learning that disability or death was due to accident, 29 A.L.R. 500.

Death or injury resulting from insured's voluntary act as caused by accident or accidental means, 35 A.L.R. 1191; 42 A.L.R. 243; 45 A.L.R. 1528, 71 A.L.R. 1437, 111 A.L.R. 628; 71 A.L.R. 1437, 111 A.L.R. 628; 111 A.L.R. 628.

Construction of provision in accident insurance policy in relation to injury incident to robbery, burglary, etc., 36 A.L.R. 1124; 46 A.L.R. 1083.

Incontestable clause as affecting failure to comply with provisions as to proofs of loss, 41 A.L.R. 382.

Accident insurance: when insured deemed to be totally and continuously unable to transact all business duties, 41 A.L.R. 1376; 51 A.L.R. 1048; 79 A.L.R. 857; 98 A.L.R. 787; 39 A.L.R.3d 1026.

Effect of insured's failure to demand the payments at the time they are due under an accident policy providing for period payments of indemnity, 49 A.L.R. 1527.

Right to recover under policy of accident insurance as affected by inability to assign time when, or place at which, injury was received, 64 A.L.R. 966.

Forfeiture of life or accident insurance for nonpayment of premium due to failure or neglect of one authorized by insured to pay same, 67 A.L.R. 180.

Constitutionality, construction, and application of statutes relating to contractual time limitation provisions of insurance policies, 112 A.L.R. 1288.

Date at which coverage begins upon reinstatement, renewal, or revival of insurance policy after default, 167 A.L.R. 333.

Right of insurer to restitution of payments made under mistake, 167 A.L.R. 470.

Insurer's demand for additional or corrected proof of loss as waiver or estoppel as to right to assert contractual limitation provision, or as suspending running thereof, 15 A.L.R.2d 955.

Power of court to order disinterment and autopsy or examination for evidential purposes in civil case, 21 A.L.R.2d 538.

Effect of failure to give notice, or delay in giving notice or filing of proofs of loss, upon fidelity bond or insurance, 23 A.L.R.2d 1065.

Injury to or death of insured while assaulting another as due to accident or accidental means, 26 A.L.R.2d 399.

Time for making autopsy or demand therefor under insurance policy, 30 A.L.R.2d 837.

Liability under accident policy, or accident feature of life policy, for injury or death from freezing or exposure to cold, 4 A.L.R.3d 1177.

Physician's duties and liabilities to person examined pursuant to physician's contract with such person's prospective or actual employer or insurer, 10 A.L.R.3d 1071.

Beneficiary's ignorance of existence of life or accident policy as excusing failure to give notice, make proofs of loss, or bring action within time limited by policy or statute, 28 A.L.R.3d 292.

Construction and effect of "visible sign of injury" and similar clauses in accident provision of insurance policy, 28 A.L.R.3d 413.

Life or accident insurance: sufficiency of showing that death from drowning was due to accident or accidental means, 43 A.L.R.3d 1168.

Liability insurance: timeliness of notice of accident by additional insured, 47 A.L.R.3d 199.

Heart attack following exertion or exercise as within terms of accident provision of insurance policy, 1 A.L.R.4th 1319.

Modern status of rules requiring liability insurer to show prejudice to escape liability because of insured's failure or delay in giving notice of accident or claim, or in forwarding suit papers, 32 A.L.R.4th 141.

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