International Indem. Co. v. Enfinger, s. 66925
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | QUILLIAN; McMURRAY; DEEN |
| Citation | 170 Ga.App. 443,317 S.E.2d 841 |
| Parties | INTERNATIONAL INDEMNITY COMPANY v. ENFINGER. ENFINGER v. INTERNATIONAL INDEMNITY COMPANY. |
| Docket Number | Nos. 66925,66926,s. 66925 |
| Decision Date | 28 February 1984 |
Page 841
v.
ENFINGER.
ENFINGER
v.
INTERNATIONAL INDEMNITY COMPANY.
Rehearing Denied March 26, 1984.
Certiorari Granted May 2, 1984.
[170 Ga.App. 445] Michael L. Wetzel, Decatur, for appellant.
Ben Kirbo, Bainbridge, for appellee.
[170 Ga.App. 443] QUILLIAN, Presiding Judge.
This case involves the construction of the following provision of the no-fault automobile liability insurance statute: "On and after March 1, 1975, all named insureds in existing motor vehicle liability policies who have not previously responded to an offer to accept or reject the optional coverages required to be offered by this chapter shall be given an opportunity to accept or reject, in writing, the optional coverages required to be offered under this Code section; provided, however, that the failure of an insured to notify his insurer of his written acceptance or rejection within 30 days after written notice of the offer has been mailed by the insurer, postage prepaid, by first class mail to the address stated in the policy shall constitute a rejection of the optional coverage." OCGA § 33-34-5(c) (Code Ann. § 56-3404b(c)).
On August 26, 1980, appellant International Indemnity Company (IIC) issued an automobile liability insurance policy to cross-appellant Enfinger. Understanding the policy to provide only for $5,000 personal injury protection (PIP) benefits, on September 22, 1980, IIC sent Enfinger a letter
Page 842
following the requirements of the above statute, [170 Ga.App. 444] by first class mail and postage prepaid, advising him of optional PIP coverage and the additional premiums necessary for such coverage. By containing blocks to be checked, this letter conformed to the standard for such letters set down in Wiard v. Phoenix Ins. Co., 251 Ga. 698, 700, 310 S.E.2d 221. IIC received no response to the letter from Enfinger. On October 30, 1980, Enfinger was injured in an automobile accident, and IIC paid him $5000 PIP benefits under the policy.On May 11 and 20, 1982, Enfinger, through his wife, requested payment of $45,000 additional PIP benefits from IIC and tendered the additional premium therefor. IIC denied the additional coverage and Enfinger commenced this action seeking the additional PIP benefits, and penalties and attorney fees based on IIC's alleged bad faith refusal to pay the claim.
Following a pretrial hearing, the trial court held that the insurance policy issued to Enfinger provided for $50,000 PIP benefits from its inception because the application form therefor did not contain the signature spaces for the applicant to accept or reject optional coverage as required by OCGA § 33-34-5(a), (b) (Code Ann. § 56-3404b(a), (b)); that IIC's letter of September 22, 1980, was ineffectual to constitute a rejection of the $50,000 PIP coverage; and that Enfinger was not entitled to attorney fees and penalties because as a matter of law there had been no bad faith refusal to pay the claim. We granted IIC's interlocutory appeal from the ruling that its notice of September 22, 1980 did not effect a rejection of optional coverage by Enfinger; and Enfinger cross-appeals from the ruling denying attorney fees and bad faith penalties. Held:
1. IIC now concedes that its policy application form did not comply with the signature requirements of OCGA § 33-34-5(b), supra, and therefore the insurance policy provided for $50,000 PIP benefits from its inception. This court has already examined IIC's application form and concluded such. International Indem. Co. v. Reeves, 165 Ga.App. 730, 302 S.E.2d 611.
2. IIC contends that even though its application form did not give Enfinger the opportunity to accept or reject the optional coverage because of its noncompliance with the statutory signature requirement, rejection of any optional PIP coverage was effected by Enfinger's failure to respond to its letter of September 22, 1980.
We agree as we find that Enfinger had an "existing motor vehicle liability" policy "after March 1, 1975" and had "not previously responded to an offer to accept or reject the optional coverages required to be offered." Accordingly, we reverse the contrary ruling of the trial court. Nalley v. Select Ins. Co., 165 Ga.App. 345, 299 S.E.2d 172.
3. In view of the foregoing finding, Enfinger's cross-appeal for attorney fees and penalties becomes moot.
Judgment...
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International Indem. Co. v. Enfinger, s. 72824
...before the appellate courts of this state. The factual history of these cases can be found in International Indem. Co. v. Enfinger, 170 Ga.App. 443, 317 S.E.2d 841 (1984), rev'd. 253 Ga. 185, 317 S.E.2d 816 (1984), cert. denied 469 U.S. 1018, 105 S.Ct. 443, 83 L.Ed.2d 360 (1984), on remand ......
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