Bituminous Cas. Co. v. Renfroe, 48699
| Decision Date | 24 January 1974 |
| Docket Number | No. 48699,No. 2,48699,2 |
| Citation | 130 Ga.App. 621,204 S.E.2d 317 |
| Parties | BITUMINOUS CASUALTY COMPANY et al. v. Kathy RENFROE |
| Court | Georgia Court of Appeals |
VanGerpen & Bovis, John M. Bovis, William M. Schiller, Atlanta, for appellants.
Savell, Williams, Cox & Angel, John M. Williams, Elmer L. Nash, Atlanta, for appellee.
Syllabus Opinion by the Court
In this appeal stemming from an award by the Workmen's Compensation Board the insurance carrier for the employer contended there was no coverage. Bituminous Casualty Co. contends it had effectively canceled its policy prior to July 22, 1971, the date on which Jerry Renfroe, an employee of Charles Schaar trading as Charles Schaar Waterproofing Co., sustained a compensable accident which caused his death.
The insurer's contention is based upon the mailing of a cancellation notice in compliance with the requirements of Code Ann. § 56-2430. The evidence presented by it included the testimony of its employee that he personally mailed a notice of cancellation at the Briarcliff Branch of the Atlanta Post Office on June 17, 1971.
Although this letter was certified it was not accompanied by a 'return receipt requested' form. Our statute does not impose the requirement that such notice be other than 'dispatched by at least first class mail to the last address of record of the insured and receiving therefor the receipt provided by the United States Post Office Department.' Such Post Office receipt of mailing was introduced verifying that a certified letter was mailed to Charles R. Schaar Waterproofing Co., P.O. Box 418, Union City, Georgia 30291. This address was the same shown on the face of the insurance policy. Another company employee testified she had personally prepared this cancellation notice. She also testified she had typed the form known as 'B' which Workmen's Compensation rule No. 5 requires for its files upon cancellation of workmen's compensation policies. This too purportedly was mailed to the state board.
In support of its position another company's agent testified Charles Schaar had applied to him for workmen's compensation insurance on July 27, 1971, which was five days after the accident. This agent testified Schaar had said the only insurance he had was with another company for automobile and home insurance. Although the testimony was objected to as being irrelevant since it occurred after the date of the accident, insurer contends it to be relevant and material in that it served to impeach Schaar's testimony who had sworn that he had never received the cancellation notice and that he only purchased new insurance after he found out his old insurance had been canceled.
Schaar not only denied receiving the cancellation notice, but testified that the only Post Office Box he had was numbered 482. Supportive of his testimony was that of the Postmistress of the Union City Post Office. She said she had held her position in that Post Office since May of 1970, that she personally knew Charles Schaar and that if a letter had been mailed to him at P.O. Box 418, Union City, Georgia, it would have been delivered to him even though this differed from his correct box number of 482. She further testified that she maintained a list of all certified mail 'regardless whether it's marked Return Receipt Requested or not.' (R. 133).
The records of the state board showed that a coverage card (Form A) required by its rule No. 3 had been on file showing the Bituminous Casualty Co. was the insurer for Charles Schaar Waterproofing Co. for successive twelve-months periods from April 21, 1969, including the date of the accident. The board's records also showed that the cancellation notice (Form B) required to be filed by it under its rule No. 5 had an effective cancellation date of June 28, 1971, but this was not received by the Board until December 8, 1971. In the deputy director's award the comment was made that 'The overwhelming evidence in this case shows that it is no mere coincidence that neither Charles Schaar nor Charles Schaar Waterproofing Co. nor the State Board of Workmen's Compensation has received the notice of cancellation.' (T. 126).
The deputy director's finding of fact stated (T. 126). Accordingly, an award was made to the defendant minor child of deceased employee.
An appeal was taken to the full board with a majority affirming the award. The minority commissioner concurred in part and dissented in part. (R. 166, 167). He stated his dissent was based on the view that the policy had been effectively canceled but further stated that 'I am not too sure but what the employer got actual notice of the cancellation, but assuming that he did not, the requirements of law affecting cancellation was (sic) met by the insurer . . . The insurer proved posting and a receipt for such posting of cancellation notice in the U.S. Mail as provided by the terms of the contract of insurance and by Code § 56-2430.' (R. 167).
Thereafter the employer appealed to the superior court which affirmed the award. This appeal followed.
1. What is required of the insurer in order to effect a cancellation by mail 1 of an insurance policy under the terms of Code Ann. § 56-2430? These statutory requirements are: (1) The policy must by its terms and conditions provide for cancellation; (2) a Post Office receipt must be obtained (Ga. Farm Bureau Mutual Ins. Co. v. Gordon, 126 Ga.App. 215, 190 S.E.2d 447); (3) it must be 'dispatched by at least first class mail to the last address of record of the insured'; and (4) the evidence adduced must show the mailed envelope contained the statutory cancellation notice. (Allstate Insurance Co. v. Cody, 123 Ga.App. 265, 180 S.E.2d 596).
It should be noted there is no requirement that the mailing should be either certified or registered and there is nothing in the statute with reference to 'return receipt requested.'
It should also be noted there is no requirement that it be shown that the insured actually received the notice. Prior to the enactment in 1968 of this statutory provision in our Insurance Code dealing with cancellation the Supreme Court held in Genone v. Citizens Ins. Co. of N.J., 207 Ga. 83, 87, 60 S.E.2d 125, 127, that when the provisions of a policy permitted cancellation by mailing, then 'the method prescribed in the policy provides a reasonable way to terminate the policy, and that it was unnecessary for the insurers, in proving notice of cancellation to show, in addition to proof of mailing the written notice in the manner provided in the policy, that the insured actually received the notice.' After enactment of the statute our court recognized in Ga. Mutual Ins. Co. v. Ragan, 122 Ga.App. 56, 58, 176 S.E.2d 230 that the statute made no change in this general proposition of law.
What happens then, when, as here, the insured contends that he never received the notice and supports such denial by evidence from the postmistress? The answer is found in Allstate Ins. Co. v. Buck, 96 Ga.App. 376, 100 S.E.2d 142 and New Amsterdam Cas. Co. v. Russell, 102 Ga.App. 597, 117 S.E.2d 239. Both of these cases point out that evidence a letter was never received is admissible as a circumstance to show it was never mailed. Both of these cases are cited in Powell v. Lititz Mutual Ins. Co., 5 Cir., 419 F.2d 62, in which that tribunal noted the absence of any decision from the Georgia courts following the passage of our statute codified as § 56-2430 requiring it 'to make an Eriemandated guess as to what the Georgia courts would hold if the question (was) before them.' Our reply conforms with the reasoning...
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