Atlanta Cas. Co. v. Flewellen

CourtUnited States Court of Appeals (Georgia)
Citation164 Ga.App. 885,300 S.E.2d 166
Docket Number64511,Nos. 64501,s. 64501
Decision Date01 December 1982

William C. Sanders, Thomasville, for appellant in No. 64501.

William H. Hedrick, Albany, for appellee in No. 64501.

Martin Kent, Thomas S. Carlock, R. Clay Porter, for appellee.

A. Terry Sorrells, Anthony J. McGinley, Robert M. Travis, Thomas D. Harper, N. Forest Montet, Atlanta, John R. Rogers, Ashburn, James E. Butler, Jr., Alfred L. Allgood, Andrew W. Estes, Don C. Keenan, Lamar W. Sizemore, Jr., William S. Stone, William Lewis Spears, James G. Jackson, Oliver B. Dickins, Jr., Bryon F. Dorsey Columbus, H. Andrew Owen, Timothy J. Sweeney, Atlanta, for amicus curiae in No. 64501.

Don C. Keenan, O.J. Mullininx, Savannah, for appellant in No. 64511.

Martin Kent, Savannah, Thomas S. Carlock, R. Clay Porter, Atlanta, for appellee in No. 64511.

Lamar W. Sizemore, Jr., Macon, Wm. Lewis Spearman, James G. Jackson, Atlanta, for amicus curiae in No. 64511.


Insurance Coverage. Each of the cases considered in this decision reached this court as a separate appeal. Atlanta Cas. Co. v. Flewellen, Case No. 64501, resulted in summary judgment being entered for the insured, Mrs. Flewellen. In Van Dyke v. Allstate Ins. Co., Case No. 64511, the opposite result occurred with summary judgment for Allstate, the insurer. However, the facts are substantially the same and the pivotal issue presented to this court in each case simply stated is whether the optional coverages of Code Ann. § 56-3404b(b), effectively were offered to and rejected by Flewellen and Van Dyke. This one issue can be resolved in a single opinion; therefore, the court in the interest of judicial economy consolidates the two cases as one. Nevertheless, the facts will be separately stated.

In No. 64501, Flewellen, the facts show that Mrs. Flewellen was issued automobile insurance by Atlanta Cas. Co. effective March 6, 1979 for one year. This policy was issued pursuant to an application accepted by Atlanta Casualty on March 5. The application consisted of two pages. Page 1 is entitled "Private Passenger Auto Application." This page contained general personal information pertaining to mandatory minimum coverage for liability and no fault coverage. On the obverse of the application there appeared at the top of the page in large capital letters "OFFER TO PURCHASE ADDITIONAL COVERAGE." (See Appendix I.) Only the statutorily required optional coverages of no-fault insurance appear on this obverse side. The first offer related to optional, additional personal injury protection required by Code Ann. § 56-3404b(a). The application provided as follows: "I elect the following aggregate personal injury protection (PIP) and reject all other options. Additional benefits include the basic $5,000." The form then set forth spaces providing for a possible choice of $10,000, $25,000, $50,000 and finally a rejection of all PIP options (Code Ann. § 56-3404b(a)(1) (OCGA § 33-34-5(a)(1) (Michie 1982) (Editorial Change only)). The form reflects by a written entry in each appropriate space that Mrs. Flewellen rejected all offered optional coverage. The second offer pertained to additional property loss coverage and specifically offered full coverage collision; full coverage comprehensive; and loss of use coverage. (Code Ann. § 56-3404b(a)(2) (OCGA 33-34-5(a)(2) (Michie 1982) (Editorial change only)). These optional coverages provided spaces for acceptance or rejection, and reflected that Mrs. Flewellen rejected this coverage by appropriate execution in the space provided.

Immediately below these separate offers, the language appears: "IMPORTANT: All above coverages must indicate accepted or rejected before application is signed by applicant." Then immediately above the space reserved for the applicant's signature appears the following, all in capital letters: "APPLICANT'S STATEMENT--READ BEFORE SIGNING." Thereafter on the same page as that containing the offer to purchase the optional coverage and fully separated from the other provisions pertaining to the application which appear on the front side of the application, there is affixed the signature of Mrs. Flewellen.

In Case No. 64511, Van Dyke v. Allstate Ins. Co., the facts are slightly different. Allstate issued Vera Van Dyke an auto insurance policy based upon an application dated December 10, 1975 for a period of five years with a premium renewal each six months. This application consisted of three pages. The first page was entitled "Application for Automobile Insurance." This first page reflected personal information concerning mandatory minimum liability and PIP coverage and contained the signature of the applicant. Page 2 listed the operators, driving records and insurance record, likewise signed by the applicant. Page 3 was entitled "ACCEPTANCE/REJECTION OF OPTIONAL COVERAGES." (See Appendix II.) The following advice was provided on page 3: "You have the right to reject these coverages or to select other options if available." Under this advice, there appear the two types of optional coverage required by Code Ann. § 56-3404b(a)(1) and (2) supra, i.e., personal injury protection with spaces for accepting or rejecting $10,000, $25,000 or $50,000 additional coverage; and property damage coverages with spaces for accepting coverages for collision, comprehensive, and loss of use--rental reimbursement. All spaces were executed reflecting Van Dyke had rejected all options except for her acceptance of comprehensive coverage. Separately under each of these four offers indicating her choice, there appears the signature of Mrs. Van Dyke.

Each of these cases reached this court following the grant of summary judgment by the trial court based upon its interpretation of the recent decision of this court in Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623. The confusion created by Jones is manifested by the fact that the two trial judges each reached opposite conclusions. Thus in Case No. 64501, the trial court granted summary judgment to Mrs. Flewellen and denied summary judgment to the insurer, American Casualty. In the case of Van Dyke, the trial court granted summary judgment to the insurer Allstate and denied same to Van Dyke. The respective appeals followed. Held:

The question posed by each of these cases arises out of the interpretation placed upon the controlling statute by this court in the Jones case. In that case, this court held at p. 233, 274 S.E.2d 623: "We construe Code Ann. § 56-3404b as imposing an evidentiary burden upon no-fault insurers to demonstrate that optional coverages were expressly offered to, and knowingly accepted or rejected in writing by, each of their applicants for no-fault insurance. This evidentiary burden is satisfied if and when an insurer can demonstrate that its applicants completed and signed separate spaces on the no-fault insurance application form indicating their acceptance or rejection of each of the optional coverages listed in Code Ann. § 56-3404b(a)."

The insurers in the case under review, Atlanta Casualty and Allstate, now ask this court to re-examine the language of Code Ann. § 56-3404b(a)(2) as interpreted by the Jones case and reverse the requirement of that case which called for a separate space and a separate signature by or at each space setting forth each choice contained as a subpart of the two optional coverages mentioned in Code Ann. § 56-3404b(a); i.e., PIP and property damage. Thus, each insurer contends that the intent of the statute is satisfied where there is a separate election shown in writing as to optional property coverage and one of the optional amounts of $10,000, $25,000, or $50,000, followed by a signature reflecting that the writing shows the selected choice was personally and knowledgeably made by the applicant for the particular coverage.

We accept that responsibility and have carefully re-examined the statute to glean from it the intent of the General Assembly. The cardinal rule of statutory construction is to ascertain the intent of the legislature. It is equally fundamental that it is our duty to look first to the language of the statute and if the legislative intent is plain and expressed unambiguously, there is no interpretation required before the court executes its sworn duty to enforce the statute. Thus our primary concern is whether Code Ann. § 56-3404b(b) is plain and unambiguous as this court has stated in Jones. Bauer International Corp. v. Cagles, 225 Ga. 684, 686, 171 S.E.2d 314. To resolve this issue one must look not only to the literal language of the statute but also to the recognized rules of statutory construction as well as equally well recognized rules of reason and logic, among the foremost of which is to read and construe a statute so as to give effect to its author's intent. Where language, rules of construction, and logic coincide the answer is apparent and simple. But where the literal language, that is the diction, grammar, and syntax, does not square with reason or intent, then the literal must yield. With full benefit of hindsight, aided by the insights of both bench and bar, we now conclude particularly that the portion of Code Ann. § 56-3404b(b) requiring "these spaces [to be] completed and signed " is neither clear nor free from ambiguity.

It appears manifest from a reading of Code Ann. § 56-3404b(b) that the legislature was addressing the subject of applications for motor vehicle liability insurance. Inasmuch as this code section referred to optional coverages, the legislature also required separate spaces designed to inform the applicant of his choice of additional coverage of PIP and property damage. Because of the position of words in a subordinate clause appearing at the end of an independent clause referring to policies of insurance for which...

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