805 F.2d 1484 (11th Cir. 1986), 85-8958, Tatum v. Dairyland Ins. Co.

Docket Nº:85-8958.
Citation:805 F.2d 1484
Party Name:Penny M. TATUM, f/k/a Penny M. Thompson, Plaintiff-Appellant, v. DAIRYLAND INSURANCE COMPANY, Defendant-Appellee.
Case Date:December 16, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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805 F.2d 1484 (11th Cir. 1986)

Penny M. TATUM, f/k/a Penny M. Thompson, Plaintiff-Appellant,



No. 85-8958.

United States Court of Appeals, Eleventh Circuit

December 16, 1986

L. Zack Dozier, Macon, Ga., for plaintiff-appellant.

Richard B. Eason, Jr., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before KRAVITCH, CLARK and EDMONDSON, Circuit Judges.

KRAVITCH, Circuit Judge:

Appellant Tatum appeals from the district court's grant of summary judgment on her claim of right under Georgia law to optional no-fault personal injury protection (PIP) on her automobile insurance policy with appellee Dairyland Insurance Company. The sole issue on appeal is whether appellee's offer of optional PIP was in substantial compliance with the requirements of O.C.G.A. Sec. 33-34-5(b). We hold that appellee's application form was not in substantial compliance with Georgia statutory requirements and that appellant has the right to claim the optional benefits.

The undisputed facts in this case indicate that appellant executed the application at issue in April 1979. The application (Appendix I) included a section labeled "Optional No-Fault Coverage Benefits," which appellant signed just below printed language that stated "I have read and understood the offer to purchase additional coverages as set forth above, and hereby reject all additional coverages that have not been marked Accept " (emphasis in original).

Appellant was injured during the policy period in two automobile accidents in September and October 1980. After the September accident, Dairyland paid Tatum a

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total of $2,590.24 for lost wages and medical expenses. Following the October accident, Dairyland paid Tatum $5,000 in benefits for lost wages and medical expenses and then notified her that no further benefits would be paid because $5,000 was the policy limit. Tatum's claims for additional benefits arising out of her October accident and her tender of an additional premium for $50,000 in retroactive PIP coverage were rejected.

In June 1982, appellant filed suit in Georgia state court seeking retroactive PIP coverage for unpaid medical bills and lost income. Appellant also sought attorney fees, statutory penalties and punitive damages. Dairyland removed the case to the United States District Court on the basis of diversity of citizenship. Dairyland continued to decline to extend any additional PIP coverage to Tatum.

In March 1983, after the decision in Flewellen v. Atlanta Casualty Co., 250 Ga. 709, 300 S.E.2d 673 (1983), Dairyland offered to extend optional benefits upon proof of loss. Appellant declined the offer because she objected to the quoted premium amount for the additional coverage. In April 1983, Dairyland sent appellant a check for $3,098.73 with a letter indicating that the payment was for optional benefits after taking credit for prior payments and the quoted premium. Appellant returned this check because, in her view, the amount was improperly calculated. After a series of correspondence as to why the amount was or was not proper, appellant accepted a check for the same amount along with a letter from appellee stating that negotiation of the check would be without prejudice to appellant's claims for additional benefits.

Both sides moved for summary judgment and the district court, relying upon St. Paul Fire & Marine Insurance Co. v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984), granted summary judgment for defendant Dairyland. Tatum appealed.

Georgia law requires that motor vehicle insurers offer a minimum of $50,000 in optional PIP coverage. O.C.G.A. Sec. 33-34-5(a). Although the statute allows applicants to reduce the coverage to no less than $5,000, appellant has the right under Georgia law to $50,000 PIP coverage unless in Dairyland's insurance application "optional coverages were expressly offered to, and knowingly rejected in writing" by the insured. Jones v. State Farm Mutual Automobile Insurance Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980), cert. dismissed, 248 Ga. 46, 280 S.E.2d 837 (1981); Flewellen v. Atlanta Casualty Co., 250 Ga. 709, 300 S.E.2d 673 (1983); Tolison v. Georgia Farm Bureau Mutual Insurance Co., 253 Ga. 97, 317 S.E.2d 185 (1984). Failure to reject the optional coverages in the manner provided in the statute forms a contract for $50,000 PIP coverage from the inception of the contract. Flewellen, 250 Ga. at 714, 300 S.E.2d at 678. The offer and knowing rejection in writing must appear on the face of the application itself; oral communications have no relevance to the insured's right to recover optional PIP benefits. See Voyager Casualty Insurance Co. v. Colwell, 166 Ga.App. 17, 303 S.E.2d 152, modified, 251 Ga. 744, 309 S.E.2d 617 (1983).

Dairyland contends that summary judgment was properly granted in its favor because Dairyland's application satisfied statutory requirements as articulated in St. Paul Fire & Marine Insurance Co. v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984) (see Appendix II). 1 In Nixon, the Georgia Supreme Court held that an application form satisfies the statutory requirements where: (1) the form is in substantial compliance with the statutory requirement; and (2) the form satisfies the intent of the Georgia legislature to ensure that insurers offer optional coverages to applicants and that an applicant's waiver of his privilege to obtain optional coverages be made knowingly and in writing. Id. at 470, 314 S.E.2d at 217. Nixon made it clear that Flewellen did not hold that separate signatures for acceptance or rejection of each of the optional coverages are mandatory. Instead,

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Flewellen only indicated that the statutory requirements are satisfied by separate signatures.

Dairyland concedes that its application form did not completely comply with section 33-34-5(b). 2 In its applicable form, 3 section 33-34-5(b) states: "Each application for a policy of motor vehicle liability insurance sold in this state must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages...." (emphasis added). Dairyland's application form had separate spaces for the applicant to indicate acceptance of any of the optional coverages but no separate spaces to indicate rejection of any of the optional coverages. Rejection of the optional coverages on the Dairyland application was done simply by signing below the preprinted language regarding rejection. 4

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We cannot accept Dairyland's position that, even in the absence of separate...

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