TRW, Inc. v. Ebersole

Deen, Presiding Judge.

Pauline Ebersole was employed by TRW, Inc., and filed for benefits under the company’s long-term disability insurance plan in 1981. Benefits were awarded in March 1982 and terminated effective May 1982 because Ebersole’s physician filed a report stating that she was not disabled and was capable of returning to work. The plan required her to file a notice of appeal from the decision terminating her benefits within 60 days of the decision. Ebersole did not present the claim for review prior to filing suit approximately eighteen months after the diagnosis, but, at the request of TRW’s counsel, she granted the company an indefinite extension of time so that the Administrative Committee could review her claim. This agreement was confirmed in a letter dated November 15, 1983, from TRW’s senior counsel which states “I suggested, and you agreed that we treat the complaint as á formal request for review of Ms. Ebersole’s claim by the committee.” The chairman of the committee reviewed the file and denied the claim. An answer was then filed by TRW. Nine months later, TRW filed a motion for summary judgment to which was attached the affidavit of the chairman of the committee stating that during the review of Ms. Ebersole’s claim he discovered that the appeal was untimely and that the denial was also justified on the merits of her claim. The trial court found there was no mention of the timeliness of the appeal when it was considered by the committee, and denied the motion finding there was a genuine issue of material fact to be determined by a jury as to whether TRW granted an untimely appeal and/or the defendant waived the right to claim the appeal was untimely. TRW appeals. Held:

Appellant claims it was error for the trial court to deny its motion because Ms. Ebersole failed to exhaust her administrative remedies as required by the plan before filing suit. We believe the real issue was identified by the trial court and is whether TRW’s agent made a knowing and intelligent waiver of the filing of a timely appeal. “[Provisions of a policy of insurance, made for the insurer’s benefit, may be waived either expressly or impliedly by the company’s actions.” Barnum v. Sentry Ins., 160 Ga. App. 213, 216 (286 SE2d 445) (1981). Whether an insurer has waived strict compliance with a plan provision is normally a jury question. Employees Assurance Society v. Bush, 105 Ga. App. 190 (123 SE2d 908) (1962). Appellant claims that the representations in the letter of its attorney do not constitute a waiver by its agent. We, however, agree with the trial court that a jury can find that the conduct of counsel can waive a policy provision. See State Farm Mut. Auto. Ins. Co. v. Penrow, 142 Ga. App. 463 (236 SE2d 275) (1977). Moreover, the affidavit of the chairman of the committee raised for the first time the issue that an untimely appeal was filed. We therefore affirm the trial court and find that issues of fact are raised which require jury resolution.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Sognier, Pope, and Benham, JJ., concur. Carley, J., concurs in the judgment only. Birdsong, P. J., and Beasley, J., dissent.