Tolison v. Georgia Farm Bureau Mut. Ins. Co., s. 40404

Citation253 Ga. 97,317 S.E.2d 185
Decision Date12 June 1984
Docket Number40461,Nos. 40404,s. 40404
PartiesTOLISON v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. TOLISON.
CourtSupreme Court of Georgia

Donald M. Fain, Charles A. Wiley, Jr., Fain, Gorby, Reeves & Moraitakis, P.C., Atlanta, Denmark Groover, Jr., Groover & Chiles, Macon, for Georgia Farm Bureau Mut. Ins. Co. in No. 40461.

Alan Mullinax, Howard, Cook & Mullinax, Stone Mountain, Judy C. King, Stone Mountain, Georgia Trial Lawyer Assoc., c/o Al Allgood, Gainesville, for Harold E. Tolison in No. 40461.

Alan Mullinax, Howard, Cook & Mullinax, Stone Mountain, for Harold E. Tolison in 40404.

Donald M. Fain, Charles A. Wiley, Jr., Atlanta, Georgia Trial Lawyer Assoc., Al Allgood, Gainesville, for Georgia Farm Bureau Mut. Ins. Co. in 40404.

John E. James, James E. Butler, Jr., Ben B. Mills, Jr., Alfred L. Allgood, William S. Store, E. Estes, Lamar Sizemore, amicus curiae.

BELL, Justice.

These cases are here on certiorari. Tolison v. Georgia Farm Bureau Mutual Insurance Co., 168 Ga.App. 187, 308 S.E.2d 386 (1983). They present two questions: first, whether an application for motor vehicle insurance coverage is in substantial compliance with the requirements of OCGA § 33-34-5(b), see St. Paul Fire & Marine Insurance Co. v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984), and, second, whether, if an application form violates the requirements of OCGA § 33-34-5(b), a jury issue as to the insured's right to optional coverages may nevertheless be raised by conflicting testimony concerning whether the insured was aware of his right to optional coverages at the time of the completion of the application. We answer both questions in the negative.

About April 17, 1979, Helen Tolison, the wife of the appellant, Harold Tolison, applied, on behalf of herself and Harold, for a motor vehicle liability insurance policy with Georgia Farm Bureau Mutual Insurance Company (Georgia Farm Bureau). The application is a two-sided document. The front page, the majority of which is filled with standard information concerning the insured and the insured's car, contains a square on about the middle of the page which provides information concerning ten available insurance coverages, including the applicable benefit limits and deductibles for each type of coverage. The square is in graphic form, with the left hand column providing, in abbreviated form (e.g. "PIP" for Personal Injury Protection), the types of coverages available. To the right of the listed coverages, the different policy limits and deductibles available for each type of coverage are located in boxes, and, preceding each of these boxes is an empty box in which the insured is to place a check mark if he or she desires that amount of coverage. If no check mark precedes any limit for a type of coverage, then that coverage is not provided. In the instant case, the box providing for the basic $5,000 PIP coverage was checked. Immediately below the entire square is an acknowledgment statement in small, bold-faced capitals and a signature space for the insured. The acknowledgment provides that the insured "hereby acknowledges that I have accepted the coverages and/or limits that have a check ... placed in front of above items and the absence of a check ... indicates my rejection of that coverage and/or limit." Mrs. Tolison signed the form at the space provided under the acknowledgement and on the bottom of the back page. These two locations were the only signature spaces provided on the form.

On July 15, 1979, Harold was involved in an accident, and in the fall of 1981 he filed a complaint against Georgia Farm Bureau seeking retroactive increases in optional PIP benefits on the ground that he was not given the requisite opportunity to accept or reject those benefits. The parties filed cross-motions for summary judgment. In an affidavit given by Helen Tolison in support of her husband's motion for summary judgment, she states that the insurance agent did not explain the optional PIP coverage that was available, and that the separate spaces provided on the application for acceptance or rejection of optional coverages were not checked by her. Conversely, in an affidavit submitted in support of Georgia Farm Bureau's motion for summary judgment, the insurance agent who handled the Tolison application states that he explained each of the optional coverages in detail, that he explained each optional benefit would require an additional premium, and that Mrs. Tolison expressed an interest only in the most basic, inexpensive no-fault coverages.

The trial court granted Georgia Farm Bureau's motion for summary judgment and denied Tolison's. The Court of Appeals reversed the grant of summary judgment to Georgia Farm Bureau, finding that the application violated OCGA § 33-34-5(b); however, the court affirmed the denial of summary judgment to Tolison, finding that there was "sharp conflict" with reference to the taking of the application, and that issues for jury determination remained concerning whether Tolison "was aware of his application for the minimum coverage under no-fault law." Case No. 40404 is the grant of Tolison's application for certiorari, and Case No. 40461 is the grant of Georgia Farm Bureau's application for certiorari.

1). OCGA § 33-34-5(b) provides that on each application for motor vehicle liability insurance the insured must indicate by signature his or her acceptance or rejection of optional PIP and vehicle property damage coverages. See Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 711, 300 S.E.2d 673 (1983). In Flewellen, supra, at 711, 300 S.E.2d 673, we held that the requirements of OCGA § 33-34-5(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." Subsequently, in St. Paul Fire & Marine Insurance Co. v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984), we noted that although we held in Flewellen that two signatures satisfied the requirements of OCGA § 33-34-5(b), we did not hold that two signatures were required in every case, and we announced that the requirements of OCGA § 33-34-5(b) could be satisfied by substantial compliance therewith. See OCGA § 1-3-1(c) and Chief Justice Hill's 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). We then addressed the issue of whether the application form in the Nixon case was in substantial compliance with the requirements of OCGA § 33-34-5(b). Nixon, supra.

The policy application in Nixon consisted of two pages, and each was signed at the bottom. Notices on both the first and second pages directed the insured to complete the second page, which was titled "OFFER TO PURCHASE ADDITIONAL COVERAGE APPLICATION". Part 1 of the second page was titled "OPTIONAL PERSONAL INJURY PROTECTION COVERAGE", and immediately below this heading were two boxes, one below the other. The first box was followed by a statement which provided, "I do not want to purchase Optional Personal Injury Protection Coverage", and the second was followed by a statement which provided, "I want to purchase Optional Personal Injury Protection Coverage as indicated below." The line below the latter statement contained three boxes. To the right of each of these boxes were the aggregate benefit limits available for optional PIP coverage. They were $10,000, $25,000, or $50,000. The insured, if he or she desired to have optional PIP coverage, was to place an "x" in the box to the left of the amount desired. Nixon put an "x" in the box to the left of the statement "I do not want to purchase Optional Personal Injury Protection Coverage." Nixon, supra, p. 216.

Because we found it clear "from the form of the application that the intent of the insured [Nixon] was to reject optional PIP benefits and vehicle property damage protection", Nixon, supra, p. 217, we held that the form was in substantial compliance with the statutory requirements of OCGA § 33-34-5(b), and satisfied 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, 300 S.E.2d 673.' (emphasis in original.) Nalley v. Select Ins. Co., 251 Ga., supra, p. 724, 313 S.E.2d 465 (Hill, C.J., concurring specially)." Nixon, supra, p. 217.

In the instant case, as in Nixon, the form clearly does not contain both a signature indicating the insured's acceptance or rejection of optional PIP benefits and a signature indicating the insured's acceptance or rejection of vehicle damage...

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