Georgia Mut. Ins. Co. v. Mims
| Decision Date | 22 June 1988 |
| Docket Number | No. 76389,76389 |
| Parties | GEORGIA MUTUAL INSURANCE COMPANY v. MIMS |
| Court | Georgia Court of Appeals |
Steven P. Gilliam, Donald T. Hunt, Gainesville, for appellant.
Lloyd E. N. Hall, for appellee.
We granted interlocutory review of the trial court's denial of appellant Georgia Mutual's motion for summary judgment. Two issues are involved in this case: (1) whether insurance agent Judy Radke and GMIC Premium Finance Company are agents of appellant such that their representations of an insurance policy term bind appellant, and (2) whether appellant's notice of the impending expiration of appellee's insurance policy, delivered to Radke, satisfied the requirements of OCGA § 33-24-45. The latter is a genuine issue of material fact. The former is not. The trial court's denial of summary judgment must be affirmed in part and reversed in part.
Appellee Vickie Mims, plaintiff below, applied for an automobile insurance policy from appellant Georgia Mutual through insurance agent Judy Radke of Insuron Insurance Agency. Appellee financed the premium through GMIC Premium Finance Company. Although the application stated that the policy would expire November 16, 1983, both Radke and the finance company represented that the policy would expire April 16, 1984.
In October 1983 appellant mailed Radke a list of policies due to expire on or before November 30, 1983. Appellee's policy was among those on the list. On December 1, 1983, 15 days after the expiration date listed on the policy application, appellee's automobile was involved in a collision. Both automobiles received extensive damage. When appellant refused to provide coverage under the policy, plaintiff filed the present action. Held:
1. Appellee Mims claims that Radke and the finance company are agents of appellant and that appellant is bound by their representations concerning the expiration date of the policy. Appellant denies that Radke and the finance company are its agents. Denial of an agency relationship by a purported party to that relationship is admissible as a statement of fact, rather than a mere conclusion of law. Lewis v. C & S Nat. Bank, 139 Ga.App. 855, 858, 229 S.E.2d 765 (1976); Salters v. Pugmire Lincoln-Mercury, 124 Ga.App. 414(1), 184 S.E.2d 56 (1971). Such a denial pierces the pleadings and is sufficient to support a motion for summary judgment. Withrow Timber Co. v. Blackburn, 244 Ga. 549, 551-52, 261 S.E.2d 361 (1979); Bush v. Vanguard Ins. Co., 172 Ga.App. 704, 706, 324 S.E.2d 554 (1984); National Property, etc., Ins. Co. v. Wells, 166 Ga.App. 281(2), 304 S.E.2d 458 (1983). Appellee failed to rebut appellant's prima facie showing of no agency. Summary judgment for appellant should have been granted on this issue.
2. The second issue to be addressed is whether appellant's notice was adequate as a matter of law. OCGA § 33-24-45 provides in pertinent part: "(e)(1) No insurer shall refuse to renew a policy to which this Code section applies unless a written notice of nonrenewal is mailed or delivered in person to the named insured ... (f) Subsection (e) of this Code section shall not apply in case of: (3) The insurer having manifested its willingness to renew by delivering a renewal policy, renewal certificate, or other evidence of renewal to the named insured or his representative or by offering to issue a renewal policy, certificate, or other evidence of renewal or having manifested such intention by any other means." Appellant claims that mailing the list of policies due to expire constitutes evidence of willingness to renew delivered to the insured's representative as required by the statute. To establish whether this notice was adequate, we must address two sub-issues: (1) whether Radke was appellee's representative and (2) whether the notice...
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