583 F2d 743 Taylor v. Time Insurance Company

583 F.2d 743

Deborah S. TAYLOR, Plaintiff-Appellant,

No. 78-2088

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Nov. 8, 1978.

Walter V. Beasley, Charles T. Bass, Decatur, Ga., for plaintiff-appellant.

Ben Kingree, Ronald T. Gold, Carter, Ansley, Smith & McLendon, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, GEE and FAY, Circuit Judges.


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On this Georgia diversity summary judgment against the beneficiary of a life insurance policy, the uncontradicted evidence showed that decedent in his application answered "no" to the question of whether he had "consulted or been treated by a physician or practitioner in the past five years." In fact, he had consulted and been treated by a psychiatrist numerous times within three years.


The district court held this to be a material misrepresentation as a matter of law under Ga.Code Ann. § 56-2409 (1977), and granted summary judgment for the insurer. This holding is in accord with Georgia law. New York Life Insurance Co. v. Hollis, 177 Ga. 805, 171 S.E. 288 (1933); Jefferson Standard Life Insurance Co. v. Bridges, --- Ga.App. ---, --- S.E.2d ---- (1978) (case No. 55633); National Life & Accident Insurance Co. v. Rouse, 145 Ga.App. 40, 243 S.E.2d 300 (1978); Prudential Insurance Co. of America v. Perry, 121 Ga.App. 618, 174 S.E.2d 570 (1970); National Life & Accident Insurance Co. v. Preston, 68 Ga.App. 614, 23 S.E.2d 526 (1942).




Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I