Johnson v. Southeastern Fidelity Ins. Co.

• Decision Date: 10 March 1986
• Docket Number: No. 71175,71175
• Citation: 178 Ga.App. 431,343 S.E.2d 709
• Parties: JOHNSON v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al.
• Court: Georgia Court of Appeals

Page 709

343 S.E.2d 709

178 Ga.App. 431

JOHNSON v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al.

No. 71175.

Court of Appeals of Georgia.

March 10, 1986.

Rehearings Denied March 27, 1986.

Certiorari Granted May 30, 1986.

Larry D. Ruskaup, James M. Aaron, Jr., Rossville, for appellant.

Richard B. Eason, Jr., W. Meade Burns, Jr., Roger Mills, Atlanta, for appellees.

POPE, Judge.

Appellant Homer LeRoy Johnson brought this action seeking recovery of personal injury protection (PIP) benefits under separate motor vehicle liability insurance policies issued by appellees Southeastern Fidelity Insurance Company and Protective Insurance Company. Appellant's complaint averred that on May 28, 1980 he suffered an accidental bodily injury arising out of the operation, maintenance or use of a motor vehicle owned by Cedartown--Atlanta Freight Lines, Inc., and incurred medical expenses and lost income or earnings in excess of $67,000. Appellant sought recovery of $5,000 basic PIP from Protective which had issued a policy to Cedartown-Atlanta, covering the tractor-trailer vehicle in which he was injured. He further sought recovery of $45,000 optional PIP from Southeastern, which had issued a personal policy to him. The complaint also sought recovery of penalty, attorney fees, and punitive damages against both appellees. Answers were filed by both appellees, each admitting the issuance of the insurance policies, but denying that appellant's injury was compensable under the policies and asserting various other defenses. Following discovery, all parties moved for summary judgment. This appeal arises from the trial court's grant of appellees' motions and the denial of appellant's motion.

The injury for which appellant seeks recompense from appellees is a heart attack he suffered allegedly as the result of pushing heavy freight while in the trailer attached to his employer's truck inthe course of unloading same. Although this incident occurred on May 28, 1980, written notice of appellant's claim as to Protective was by virtue of a letter from appellant's employer dated October 23, 1981; as to Southeastern, notice of appellant's claim was given by letter from his attorney dated November 27, 1981. Appellant has filed no claim for workers' compensation benefits. ¹ In their motions for summary judgment both Protective and Southeastern argued that appellant's injury was not of the type covered by the Georgia Motor Vehicle Accident Reparations Act, the no-fault law. Also, both appellees argued that appellant had failed to timely comply with the notice of accident provisions of the respective policies. In addition to these arguments, Southeastern contends that its policy contained an endorsement which excluded coverage of commercial vehicles and also that the policy did not contain optional PIP coverage. Appellant's motion sought summary judgment only as to optional PIP benefits under the policy issued to him by Southeastern pursuant to the holdings in Jones v. State Farm etc. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980), and Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 300 S.E.2d 673 (1983).

1. We first turn to the issue of notice. The policies of both appellees provide as a condition precedent to coverage that written notice of an accident by or on behalf of an eligible insured be made "as soon as practicable." Appellant acknowledges the relatively long delay in providing such notice to appellees here. However, he seeks to justify the delay based upon his lack of knowledge that the policies in question might afford coverage for his heart attack.

(a) As to Protective, appellant testified that after his heart attack he was told by his employer that it would take care of all insurance matters; he was not informed of the name of the insurance company providing coverage on the vehicle in which he suffered his heart attack. Further, he was often told by the company that it had no insurance on its vehicles. The company also told appellant that he was ineligible for workers' compensation benefits as the result of his heart attack. He avers that once he found out he was not going to receive benefits of any kind, he contacted an attorney who then filed a claim on his behalf with Protective.

"As is true generally with regard to issues relating to reasonableness and sufficiency of compliance with stated conditions, questions of the adequacy of the notice and the merit of [appellant's] claim of justification are ones of fact which must be resolved by a jury as they are not susceptible to being summarily adjudicated as a matter of law. [Cits.] ... It is our opinion that [these] issue[s] must be decided contrary to [Protective's] position on the basis of Ga. Mut. Ins. Co. v. Criterion Ins. Co., 131 Ga.App. 339, 206 S.E.2d 88 (1974). In Ga. Mut. this court affirmed the denial of summary judgment to the insurer--who had raised the identical contention advanced here--where the record showed that the delay in giving notice for approximately four months was because the insureds '... did not know their policy might afford coverage for the collision.' " State Farm etc. Ins. Co. v. Sloan, 150 Ga.App. 464, 466, 468, 258 S.E.2d 146 (1979). Cf. First of Ga. Underwriters Co. v. Beck, 170 Ga.App. 68 (4), 316 S.E.2d 519 (1984). Compare Bates v. Holyoke Mut. Ins. Co., 171 Ga.App. 164, 318 S.E.2d 777 (1984), aff'd. 253 Ga. 697, 324 S.E.2d 474 (1985), and Southeastern Stages v. Gen. Fire etc. Co., 151 Ga.App. 487 (1A), 260 S.E.2d 399 (1979), wherein the insureds offered no excuse for their lengthy delay in filing a claim. See also Intl. Indem. Co. v. Smith, 178 Ga.App. 4 (1), 342 S.E.2d 4 (1986), wherein this court held that ignorance of the terms of an insurance policy due to illiteracy, in and of itself, provided no excuse for an insured's failure to comply with the policy's notice provisions; and Golder v. United Svcs. Auto. Assn., 177 Ga.App. 194 (1), 338 S.E.2d 771 (1985), wherein this court held that an insured's hope and impression that another insurance company would be liable for a claim against him also provided no basis for his failure to comply with the notice provisions of the policy.

Protective also relies heavily on the holding in Flamm v. Doe, 167 Ga.App. 587, 307 S.E.2d 105 (1983), wherein an employee's failure to comply with the 30-day notice provision of his employer's uninsured motorist coverage resulted in summary judgment in favor of the insurer. This court affirmed the summary adjudication on the grounds that the employee seeking coverage under the policy was under a duty to inform himself of his responsibilities thereunder and also that the benefits sought did not involve compulsory insurance coverage. Since the coverage sought by appellant from Protective in the case at bar is the minimum no-fault coverage mandated by statute, OCGA § 33-34-4(a), the circumstances here are distinguishable from those which form the basis of the holding in Flamm v. Doe, supra. Thus, we cannot say as a matter of law that notice was not given in the case at bar "as soon as practicable."

(b) As to Southeastern, appellant testified that shortly after he got out of the hospital following his heart attack he spoke with the insurance agent through whom he had obtained the Southeastern policy. Although he did not make a claim at that time, he told the agent about his "trouble and everything ... what all happened." In light of the cases cited above in subdivision (a), we cannot say as a matter of law that appellant's 18-month delay in providing written notice of his claim to Southeastern was unjustified. See Kitt v. Shield Ins. Co., 240 Ga. 619, 241 S.E.2d 824 (1978).

2. Appellees also both contend that appellant's injury, i.e., his heart attack, is not compensable under the no-fault law. "Georgia's Motor Vehicle Accident Reparations Act requires and restricts payment of no-fault insurance benefits in and to those instances specified in OCGA § 33-34-7 as the terms therein used are defined in the no-fault act, OCGA § 33-34-2." Kelley v. Integon Indem. Corp., 253 Ga. 269, 274, 320 S.E.2d 526 (1984). In order to recover no-fault benefits, appellant must show that he suffered an "accidental bodily injury," which is defined by OCGA § 33-34-2(1) as "bodily injury, sickness, or disease ... arising out of the operation, maintenance, or use of a motor vehicle which is accidental to the person claiming basic no-fault benefits ... Bodily injury is accidental as to the claimant unless sustained intentionally by the person injured or caused intentionally by the claimant." A "motor vehicle" includes "a trailer drawn by or attached to such a vehicle." OCGA § 33-34-2(6). "Operation, maintenance, or use of a motor vehicle" includes "conduct in the course of loading or unloading the vehicle [if] the conduct occurs while occupying it." OCGA § 33-34-2(9).

As noted above, the injury for which appellant seeks recovery of no-fault benefits is a heart attack he suffered allegedly as the result of his pushing heavy freight in the trailer of his employer's truck in the course of unloading it. There is expert witness testimony of record which both substantiates and refutes appellant's claim of where and when his heart attack occurred and its cause. In light of the definitions cited above and construing the facts most strongly in favor of appellant as the non-moving party, we cannot say as a matter of law that appellant's heart attack is not compensable under the no-fault law. Accord Franklin v. Southern Guaranty Ins. Co., 160 Ga.App. 279, 287 S.E.2d 274 (1981). It follows, also, that the trial court misplaced its reliance on Jones v. Continental Ins. Co., 169 Ga.App. 153, 312 S.E.2d 173 (1983), in concluding that the facts in the case at bar did not set forth an "insured event" under the no-fault law. In Jones the evidence clearly showed that the claimant was not "occupying" her vehicle at the time she was injured while unloading it.

3. Appellee Southeastern also...