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Colonial Life & Accident Insurance Co. v. Heveder6/28/2005
SMITH, P. J., ELLINGTON and ADAMS, JJ.
We granted the application for interlocutory appeal of defendant Colonial Life & Accident Insurance Company to review the trial court's denial of its motion for summary judgment. This action was brought by William Robert Heveder against numerous defendants for various claims arising out of the death of his father William Robert Heveder, Sr. Heveder brought a wrongful death claim against his father's widow, Debra Ann Heveder, and Lance McKinnen, her son from another relationship, alleging that they conspired to murder his father to prevent him from divorcing Mrs. Heveder because of her meretricious relationship with another man. Heveder also sued four life insurance companies, including Colonial, seeking a declaration that he and the minor child of the marriage owned all right, title and interest in the proceeds of the insurance on his father's life.
Colonial answered, denying that it was obligated to Heveder. It asserted that it had made payment in accordance with the terms of the policy before receiving written notice of a claim by or on behalf of Heveder or anyone other than the named beneficiary and that, pursuant to OCGA § 33-24-41, it therefore was discharged from all claims. After discovery, Colonial filed a motion for summary judgment on this basis. After Heveder withdrew his request for oral argument, the trial court denied the motion in a brief order and granted a certificate of immediate review. Colonial's unopposed application for interlocutory appeal was granted, and this appeal followed.
The significant facts are not in dispute. Colonial issued to Heveder's father an "on and off-job accident only" insurance policy which included an accidental death benefit. Mrs. Heveder was the named beneficiary. After the death of Heveder's father on January 10, 2000, the Coffee County Sheriff's Department opened a murder investigation. On January 24, 2000, Mrs. Heveder filed a claim with Colonial, and Colonial hired an investigator to look into the circumstances of the death and the sheriff's investigation. The insurance investigator's report, dated April 28, 2000, reported that there were four potential suspects in the murder, including Mrs. Heveder, and that Mrs. Heveder had not cooperated with sheriff's investigators. The insurance investigator's source, a detective with the sheriff's office, believed the murder to be "a planned conspiracy."
On September 26, 2000, Mrs. Heveder sent a letter to Colonial enclosing a copy of a June 15, 2000 letter signed by the Sheriff of Coffee County on department letterhead, stating that "Mrs. Heveder was not at the marital home when the homicide was committed and is not a suspect or suspected as being the person who committed the murder." On October 10, 2000, Colonial paid the policy proceeds to Mrs. Heveder. As far as indicated by the record or the parties' briefs, the official investigation remains open, and no one has been charged with the murder of Heveder's father.
In his responses to Colonial's first request for admissions, Heveder admitted that as of October 10, 2000, neither he nor anyone acting on his behalf had sent to Colonial's home office or any other Colonial office any written notice of any kind, including notice that he or anyone other than Mrs. Heveder claimed to be entitled to payment of or an interest in the policy proceeds.
OCGA § 33-24-41 provides:
Whenever the proceeds of or payments under a life or accident and sickness insurance policy or annuity contract become payable in accordance with the terms of the policy or contract or the exercise of any right or privilege under the policy or contract and the insurer makes payment
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