Government Employees Ins. Co. v. Mooney, s. 39193
| Decision Date | 16 March 1983 |
| Docket Number | 39224,39222,Nos. 39193,39223,39194,s. 39193 |
| Citation | 300 S.E.2d 799,250 Ga. 760 |
| Parties | GOVERNMENT EMPLOYEES INSURANCE COMPANY v. MOONEY et al. MOONEY v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al. GEORGE et al. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al. GOVERNMENT EMPLOYEES INSURANCE COMPANY v. MOONEY et al. MOONEY v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al. |
| Court | Georgia Supreme Court |
Joseph H. Chambless, John Burke Harris, III, Harris, Watkins, Davis & Chambless, Macon, for Government Employees Ins. Co. in Nos. 39193 and 39223.
E. Angela Emerson, c/o David W. Waddell, Milledgeville, Daniel Lee Dean, Atlanta, for William L. Mooney et al. in Nos. 39193 and 39223.
E. Angela Emerson, Waddell & Emerson, Milledgeville, for William L. Mooney in Nos. 39194 and 39224.
John Burke Harris, III, Harris, Watkins, Davis & Chambless, Macon, Daniel Lee Dean, Fred J. Stokes, Atlanta, for Government Employees Ins. Co. et al. in Nos. 39194 and 39224.
Daniel Lee Dean, Fred J. Stokes, Stokes & Dean, Atlanta, for Sanford George et al. in No. 39222.
John Burke Harris, III, Harris, Watkins, Davis & Chambless, Macon, E. Angela Emerson, c/o David W. Waddell, Milledgeville, for Government Employees Ins. Co. et al. in No. 39222.
Barwick, Bentley, Karesh, Seacrest, Gary L. Seacrest, Thomas S. Bentley, Edwin A. Tate III, Karl M. Terrell, O'Neal, Brown & Sizemore, Lama W. Sizemore, Jr., amicus curiae.
These cases involve an interpretation of an automobile insurance policy issued by Government Employees Insurance Company (GEICO) to William Mooney. The main issue is controlled by the requirements of OCGA § 33-34-5 (Code Ann. § 56-3404b) prior to its amendment in Ga.L.1982, p. 1234.
Mooney telephoned GEICO on February 18, 1981, to secure automobile insurance on three vehicles. A binder was issued and GEICO mailed a cover letter and three forms for Mooney to fill out, sign and return with payment to secure a policy. GEICO issued policies on the vehicles on March 6, 1981, effective February 19, 1981.
In July of 1981, Mooney was injured in an accident in his automobile; Jimmy George and Sanford George, who were passengers in Mooney's vehicle, were also injured. Mooney and the Georges began filing claims with GEICO under the "no-fault," PIP provisions of the GEICO policy issued on the vehicle.
Mooney contends that after the accident he first learned that his policy only provided the minimum personal injury protection (PIP) of $5,000. See OCGA § 33-34-4 (Code Ann., § 56-3403b). On August 31, 1981, Mooney tendered an additional premium to GEICO to obtain optional PIP benefits. See OCGA § 33-34-5 (Code Ann., § 56-3404b). GEICO refused to provide the additional coverage for the July accident and on October 30, 1981, filed an action for declaratory judgment on its rights and liabilities under the policy, naming Mooney, Jimmy George and Sanford George as defendants. Mooney and each of the Georges answered and filed counterclaims for optional PIP benefits as well as for statutory penalties alleging bad faith on GEICO's refusal to pay.
The issues raised in these appeals are whether Mooney is entitled under his insurance policy to optional PIP coverage, whether the Georges, as passengers in Mooney's automobile, are entitled to coverage, and whether GEICO is subject to statutory penalties and attorney fee penalties under the facts of this case.
1. GEICO mailed Mooney three forms to complete for the issuance of a policy, an application form, a rating statement and an information and option form.
The application, or order form, which was signed by Mooney has a notation for PIP which is designated as "5M" with no reference to other options. The only reference to optional coverage is on the Georgia Information and Option Form. The front page of this form has blocks to accept or reject additional PIP in aggregate amounts of $50,000, $25,000 and $10,000. This section of the form was not completed by Mooney. The rest of page one and all of page two provides detailed spaces for the insured to accept or reject loss of use, comprehensive and collision coverage with varying deductibles for each of his three vehicles. There is a signature line at the bottom of page two. Mooney completed the sections for comprehensive, collision and loss of use and signed the form at the space provided at the bottom of the second page.
The trial court held that GEICO had failed to demonstrate that it had obtained the written consent of Mooney to reduce or reject optional coverages for PIP, as required by OCGA § 33-34-5(a) and (b) (Code Ann. § 56-3404b(a, b)). We affirm.
OCGA § 33-34-5(b) (Code Ann. § 56-3404b(b)), states that "no such policy shall be issued in this state unless those spaces are completed and signed by the prospective insured." (Emphasis supplied.) GEICO contends that because Mooney did not accept the optional PIP coverage he must be deemed to have rejected the coverage on this vehicle. However, it is GEICO who is in violation of the statute. "We will not as a remedy read in the missing signed consent of the insured as it is the insurer who has violated its legal duty." Flewellen v. Atlanta Casualty Co. 250 Ga. 709, 714, 300 S.E.2d 673, 677(1983).
Mooney contends, as did the insured in Flewellen, that he did not knowingly reject optional PIP benefits. OCGA § 33-34-5 (Code Ann. § 56-3404b) requires the insurer to offer PIP coverage of not less than $50,000 and that this coverage can be reduced only with the written consent of the policyholder. The only form on which an offer of additional coverage was made is the document entitled Georgia Information and Option Form. The section with boxes for rejection or reduction of additional PIP is not marked in any manner. The absence of a written rejection will be interpreted as an acceptance of the additional coverage. Flewellen, supra. This absence of written rejection or reduction of additional benefits as required by the statute is dispositive of the issue of coverage regardless of the presence or absence of signatures or the propriety of the form itself.
Mooney has made a tender of the additional premium and submitted proof of loss statements to GEICO as required by Flewellen. We hold the trial court was correct in granting partial summary judgment to Mooney on the issue of his entitlement to PIP coverage in the amount of $50,000. The amount he may recover under this claim will be determined by the compensable injuries he is able to show.
2. We now turn to the issues raised in the appeals by Jimmy George and Sanford George, who were passengers of Mooney and injured in the accident. GEICO has paid certain of the Georges' claims under the basic PIP provisions of Mooney's policy. At the time the trial court entered its order in this case, the claims of Sanford George had exceeded the basic PIP of $5,000, which GEICO has paid; the claims of Jimmy George and the payments by GEICO had not exceeded the basic PIP at that time.
As pointed out in Division one, the trial court granted partial summary judgment to Mooney, holding that he was entitled to an additional $45,000 coverage under his policy. The trial court denied the motions for partial summary judgment by Sanford George and Jimmy George on this same issue, holding that they did not have standing to support their motions.
In Flewellen, we held that where the insurer's application does not comply with OCGA § 33-34-5 (Code Ann. § 56-3404b), the policy will be interpreted as providing the minimum optional coverage of $50,000. We also stated that "The only requirement for activation of the policy is the payment of any additional premium due and filing of proof of loss." Flewellen, 250 Ga., at 715, 300 S.E.2d 678. Mooney has complied with this requirement by tendering his premium and making demand; proofs of loss have been filed by all of the injured parties, including the Georges.
" 'Insured' means, in addition to the insured named in the policy ... any other person...
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