AETNA LIFE INSURANCE COMPANY v. CASH, 121 Ga. App. 8

Quillian, Judge. 1. Under the provisions of the Aetna policy the appellee, Cash, would not have been entitled to the $1,884.08 paid for his wife’s medical expenses if the same expenses had previously been paid by another insurance company. Cash contends that he is entitled to retain the $1,884.08 because his wife did not actually have coverage under the Pilot policy and Aetna may not take advantage of the payment made by Pilot whether made deliberately or through error.

Cash insists that his wife did not have coverage under the Pilot policy because she had coverage for the same expenses ■under the provisions of the Aetna policy in which Rich’s, Inc., was the “policyholder.” He bases his position on the clause of the Pilot policy which provides: “If the effective date of this policy is prior to the expiration date of any similar policy covering the same loss issued by Pilot Life or another company to the policyholder, the insurance hereunder with respect to any person who is insured under such similar policy shall not become effective until the day immediately following the expiration of his insurance under such similar policy.” The intent of this provision was that if the School Superintendent (“the policyholder”) held another policy which provided the same type coverage for the school personnel (“covering the same loss”), this Pilot policy would not become effective as to such personnel until the day immediately following the expiration of the other policy.

The appellee, Cash, argues: “Here, the clear intent of the verbiage of the contract of insurance was that any person who was insured under the Pilot policy would not be paid by Pilot if they were insured under any other policy of insurance, which was in effect at the time of the injury.” We cannot agree with appellee’s contention. The clause of the policy did not state that Pilot would not provide coverage if the person insured had the same coverage under any other insurance policy.

It only provided that there would be no payment if the insured had the same coverage under another policy which had been issued to the “policyholder” of the policy in question, being in this case the School Superintendent. Therefore the fact that insured had the same coverage under another policy issued to a different “policyholder,” Rich’s, Inc., would not under the clause in question affect the coverage of the Pilot policy. 2. Before the plaintiff would be entitled to

summary judgment, it must prove it had no knowledge of the insurance policy and payments made -under the Pilot Life policy at the time of paying under its policy, and for the defendant to assume a

summary judgment, the defendant must prove that Aetna Life Insurance Company, plaintiff, paid with notice of the Pilot Life policy and the payments made thereunder. Code § 20-1007. There was an affidavit of the assistant supervisor of Atlanta Group Claim Department of Aetna which stated that the claim was paid by Aetna without knowledge of any other policy or that payments had been made under any other policy.

However, this was not sufficient to prove Aetna’s lack of knowledge. “An official of the insurance company cannot testify as to the lack of knowledge on the part of the insurance company, or any of its officers other than himself, of the falsity of the- representations made in the application.” Brown v. Mutual Life Ins. Co., 29 Ga. App. 794 (6) (116 SE 559). See Bush & Hathaway v. McCarty Co., 127 Ga. 308 (6) (56 SE 430, 9 AC 240); Slaughter v. Heath, 127 Ga. 747, 759 (57 SE 69, 27 LRA (NS) 1); Brewer v. New England Mortgage Security Co., 144 Ga. 548 (4) (87 SE 657).

There being a lack of evidence on the issue of Aetna’s knowledge or lack of knowledge that Mrs. Cash was covered for the same loss by another policy, neither party was entitled to a

summary judgment. The trial judge was correct in denying the plaintiff’s motion for

summary judgment but erred in granting the defendant’s motion. Judgment affirmed in part; reversed in part. Pannell, J., concurs. Evans, J., concurs specially.