St. Paul Fire & Marine Ins. Co. v. Nixon

• Citation: 252 Ga. 469,314 S.E.2d 215
• Decision Date: 04 April 1984
• Docket Number: No. 39850,39850
• Court: Supreme Court of Georgia
• Parties: ST. PAUL FIRE & MARINE INSURANCE COMPANY v. NIXON.

Page 215

314 S.E.2d 215

252 Ga. 469

ST. PAUL FIRE & MARINE INSURANCE COMPANY v. NIXON.

No. 39850.

Supreme Court of Georgia.

April 4, 1984.

Rehearing Denied April 24, 1984.

H. Anderson Owen, McCauley, Owen & Sweeney, Atlanta, for St. Paul Fire & Marine Insurance Co.

Charles A. Mullinax, Stone Mountain, for Randy Clark Nixon.

MARSHALL, Presiding Justice.

This case is here on certiorari. Nixon v. St. Paul Fire, etc., Ins. Co., 166 Ga.App. 38, 303 S.E.2d 158 (1983). It presents the question of whether an application for optional no-fault motor-vehicle insurance coverage is in substantial compliance with the requirements of OCGA § 33-34-5(b) (Code Ann. § 56-3404b) (Ga.L.1974, p. 113, § 4), where the application contains separate spaces for the insured to indicate his acceptance or rejection of the optional coverages, but the insured's signature appears only at the bottom of the page of the insurance application offering the optional coverages. We hold that such a policy application is in substantial compliance with § 33-34-5(b) (Code Ann. § 56-3404b). These are the facts:

St. Paul Fire & Marine Insurance Company brought this declaratory-judgment action, alleging that it issued the defendant, Randy Clark Nixon, a policy of motor-vehicle insurance; that this policy contains the minimum no-fault benefits required by Georgia law, inasmuch as the defendant specifically rejected optional no-fault coverages in his insurance application; that however, the defendant allegedly sustained various personal injuries as a result of an automobile collision in June of 1980; and that he is now seeking to tender an additional premium for the optional no-fault benefits on the ground that he was not given the requisite opportunity to reject such optional no-fault benefits.

The policy application in this case is in two pages. Each page is signed by the defendant at the bottom. The first page contains standard information concerning "Vehicle identification," "Vehicle use," "Limits on your coverage," and "Driver information." Under "Limits on your coverage," there is provided $5,000 in no-fault coverage, but there is also a statement directing the applicant to complete the supplementary form. The second page, titled "Offer to Purchase Additional Coverage Application," consists of Parts I, II, III and IV. Part I requires the applicant to specify if he does not want optional personal-injury-protection coverage, or, if he does want such coverage, whether he wants it in the amount of $10,000, $25,000, or $50,000. The defendant placed an X in the block at the left of the statement, "I do not want to purchase Optional Personal Injury Protection Coverage." Part II concerns full collision coverage without deductible. The defendant put an X in the block at the left of the statement, "I do not want to purchase Full Coverage Collision." Part III concerns full comprehensive coverage without deductible. In Part III, the defendant put an X in the block at the left of the statement, "I do not want to purchase Full Coverage Comprehensive." Part IV concerned loss-of-use coverage. As stated on the policy application, it provides reimbursement to the insured for transportation expense income not to exceed $10 per day or totaling more than $300 due to the loss of use of the motor vehicle. The defendant put an X in the block at the left of the statement, "I do not want to purchase Loss Of Use Coverage." As previously stated, the defendant signed this page of the policy application at the bottom.

The superior court denied the defendant's motion for partial summary judgment on the question of whether his rejection of optional no-fault benefits was in compliance with the requirements of Georgia law, ruling that the insurance company's policy application met the requirements of § 33-34-5(b) (Code Ann. § 56-3404b). On appeal, the Court of Appeals reversed, stating that in Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 711, 300 S.E.2d 673 (1983), this court held that "the requirements of subsection (b) are satisfied by two signatures, one for acceptance or rejection of optional PIP and another to indicate acceptance or rejection of vehicle damage coverage." Nixon, 166 Ga.App. 38, 303 S.E.2d 158; supra, p. 216. We granted certiorari. We reverse.

As stated by Chief Justice Hill in his special concurrence to our dismissal of the writ of certiorari in Nalley v. Select Ins. Co., 251 Ga. 722, 723, 313 S.E.2d 465 (1983), "While in deciding Flewellen, we held that two signatures satisfied the statutory requirements, we did not hold that two signatures were mandatory in every case." Here, as in Nalley, although the optional-coverage application has only one signature, it is clear from the form of the application that the intent of the insured was to reject optional PIP benefits and vehicle-damage protection. Therefore, we hold that, "the form is in substantial compliance with the statutory requirement, OCGA § 1-3-1(c) (Code Ann. § 102-102), and satisfies the intent of the General Assembly to ensure ' "that insurers offer optional coverages to applicants for no-fault insurance and that an applicant's waiver of his privilege to obtain optional coverages be made knowingly and in writing." ' Flewellen, supra, 250 Ga. at 714 ." (Emphasis in original.) Nalley v. Select Ins. Co., 251 Ga., supra, p. 724, 313 S.E.2d 465 (Hill, C.J., concurring specially).

Judgment reversed.

All the Justices concur, except CLARKE, SMITH and GREGORY, JJ., who dissent.

HILL, Chief Justice, concurring.

I join the majority opinion and write separately only to point out that the signature on the form in the Flewellen case, Atlanta Cas. Co. v. Flewellen, 164 Ga.App. 885, 300 S.E.2d 166 (1982) (rev'd, 250 Ga. 709, 300 S.E.2d 673), reproduced at page 893 of the Court of Appeals' opinion, was the signature on the application for insurance. That signature was not, as here, applicable only to the "Offer to Purchase Additional [No-Fault] Coverage" (matter in brackets added). Thus, in my view, there was not substantial compliance with the signature requirement of our no-fault law, OCGA § 33-34-5(b) (Code Ann. § 56-3404b), in Flewellen, supra.

CLARKE, Justice, dissenting.

The judicial history of OCGA § 33-34-5 (Code Ann. § 56-3404b) is not a happy or proud one. We have seen the interpretation of this statute fluctuate from strict to liberal, back to strict, and now, alas, back to liberal. See Jones v. State Farm Mutual Auto. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980); State Farm Mutual Auto. Ins. Co. v. Jones, certiorari unanimously dismissed, 248 Ga. 46, 280 S.E.2d 837 (1981); Georgia Casualty Co. v. Flewellen, 164 Ga.App. 885, 300...