Georgia Farm Bureau Mut. Ins. Co. v. Middleton, s. 67973

• Decision Date: 02 July 1984
• Docket Number: Nos. 67973,67974,s. 67973
• Citation: 319 S.E.2d 909,171 Ga.App. 454
• Parties: GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. MIDDLETON; MIDDLETON v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 909

319 S.E.2d 909

171 Ga.App. 454

GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. MIDDLETON;

MIDDLETON v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.

Nos. 67973, 67974.

Court of Appeals of Georgia.

July 2, 1984.

Thomas S. Chambless, Mark A. Gonnerman, Albany, for appellant.

B. Samuel Engram, Jr., Albany, for appellee.

BANKE, Judge.

Case No. 67973 is an appeal from a grant of partial summary judgment to the insured in yet another action to recover optional PIP benefits under the "continuing offer" theory first announced in Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980). The policy was applied for in August 1976, and the accident occurred in October 1979. The trial court concluded that the application did not comply with OCGA § 33-34-5, as it existed prior to the enactment of Ga.L.1982, p. 1234, thus enabling the insured to claim optional PIP coverage in the amount of $45,000. See Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 711, 300 S.E.2d 673 (1983). Case No. 67974 is the insured's cross-appeal from the denial of her motion for summary judgment. This ruling was based on the trial court's determination that a jury issue remained as to the amount of her medical expenses.

Held:

1. As the insurer concedes in its brief, the application is identical in form to the one considered and found deficient by this court in Tolison v. Ga. Farm Bur. Mut. Ins. Co., 168 Ga.App. 187, 308 S.E.2d 386 (1983). However, in reliance upon Tolison, the insurer argues a material issue of fact is nevertheless created by conflicting evidence as to whether the agent orally explained to the insured her options concerning PIP coverage. The holding of Tolison as it pertains to this question has been overruled by the Supreme Court. Ga. Farm Bur. Mut. Ins. Co. v. Tolison, 253 Ga. 97, 317 S.E.2d 185 (1984). "[T]he intent of OCGA § 33-34-5 (Code Ann. 56-3404b) is 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,' Jones, [v. State Farm, etc., Ins. Co., supra 156 Ga.App.] at p. 232 . The purpose of the statute is to resolve conflicts which arise when an insured contends that he was not informed of his statutory right to optional benefits. When this claim is made, the resolution of the issue will be to look to the policy to determine if there was reduction or rejection of those benefits in conformance with the statutory scheme." Flewellen, supra 250 Ga. at p. 714, 300 S.E.2d 673. See also Colwell v. Voyager Cas. Ins. Co., 251 Ga. 744, 309 S.E.2d 617 (1983). The trial court did not err in granting the insured's motion for summary judgment on the issue of coverage.

2. In support of her motion for summary judgment, the insured submitted an affidavit in which she itemized her medical expenses and to which she attached her corresponding medical bills. Although she averred that these expenses were for treatment necessitated by the collision, the trial court denied the motion for summary judgment on the ground that the evidence "set out only matters which are of necessity mere conclusions and opinions ..."

OCGA § 24-7-9 provides that "(a) Upon the trial of any civil case involving injury or disease, the...