Georgia American Ins. Co. v. Varnum

• Decision Date: 29 May 1984
• Docket Number: No. 68235,68235
• Citation: 171 Ga.App. 190,318 S.E.2d 814
• Parties: GEORGIA AMERICAN INSURANCE COMPANY v. VARNUM.
• Court: Georgia Court of Appeals

Page 814

318 S.E.2d 814

171 Ga.App. 190

GEORGIA AMERICAN INSURANCE COMPANY v. VARNUM.

No. 68235.

Court of Appeals of Georgia.

May 29, 1984.

Rehearing Denied June 14, 1984.

Certiorari Denied Sept. 4, 1984.

Richard B. Eason, Jr., Carolyn J. Kennedy, Atlanta, for appellant.

Kenneth M. Henson, Jr., Columbus, Millard D. Fuller, Americus, for appellee.

BANKE, Presiding Judge.

This is an action to recover optional "no-fault" (i.e., personal injury protection) benefits pursuant to the theory set forth in Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 300 S.E.2d 673 (1983). The trial court granted the plaintiff's motion for partial summary judgment on the issue of coverage, and the defendant insurer applied to this court for permission to file an interlocutory appeal. Since a grant of partial summary judgment is appealable in any event (see OCGA § 9-11-56(h)), we granted the application.

The defendant issued a policy of automobile insurance to the plaintiff on March 18, 1981, covering the period March 13, 1981 to March 13, 1982, and purporting to provide minimum PIP coverage in the amount of $5,000. The plaintiff was injured in an automobile accident on June 5, 1981, following which the defendant paid her the $5,000. The plaintiff later tendered the additional premium required for the purchase of optional PIP coverage in the amount of $45,000, but the defendant has refused to extend such coverage to her. The plaintiff maintains that she is entitled to purchase the additional benefits because the policy application form did not comply with the requirement set forth in OCGA § 33-34-5(b), as that code section existed in 1981, that a separate signature space be provided for indicating acceptance or rejection of optional no-fault coverage. The defendant asserts that regardless of whether the original application form complied with § 33-34-5(b), the plaintiff must be deemed to have rejected the optional coverage by failing to respond within 30 days to an offer of such coverage mailed to her on November 6, 1981, pursuant to the then existing version of OCGA § 33-34-5(c). Held:

1. The defendant initially contends that the notice provisions of OCGA § 9-11-56(c) were violated because, during the 30-day period immediately preceding the hearing on the motion for summary judgment, the plaintiff supplemented the record by amending her complaint and filing several depositions. However, the defendant has not suggested that any of this supplemental material was in any way germane to the issues involved in the motion for summary judgment, and the material already of record more than 30 days prior to the hearing was clearly adequate to support the court's ruling. Under these circumstances, there was no violation of the 30-day notice requirement set forth in OCGA § 9-11-56(c). Accord Smith v. Dixon Ford Tractor Co., 160 Ga.App. 885, 887-888, 288 S.E.2d 599 (1982). The defendant's reliance on Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga.App. 448, 278 S.E.2d 40 (1981), is misplaced, as the moving party there was relying on materials filed at the hearing on the motion for summary judgment. Furthermore, the opposing party in that case, unlike the defendant in the present case, objected to the court's consideration of these materials.

2. The defendant complains that it was not proper to grant summary judgment in the absence of proof of the provisions of the insurance policy in question. However, there has never been any dispute over the provisions of the policy. Rather, the issue is whether the policy application form complied with the requirement of former OCGA § 33-34-5(b) that a separate signature space be provided for use by the applicant in indicating her...