Nalley v. Select Ins. Co., 64744

• Decision Date: 12 January 1983
• Docket Number: No. 64744,64744
• Citation: 299 S.E.2d 172,165 Ga.App. 345
• Parties: NALLEY, et al. v. SELECT INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 172

299 S.E.2d 172

165 Ga.App. 345

NALLEY, et al. v. SELECT INSURANCE COMPANY.

No. 64744.

Court of Appeals of Georgia.

Jan. 12, 1983.

Rehearing Denied Feb. 7, 1983.

Charles B. Graham, Jr., Patrick J. Fox, Jonesboro, for appellant; John R. Rogers, Ashburn, James E. Butler, Jr., Columbus, Wm. S. Stone, Blakely, Lamar W. Sizemore, Macon, Alfred L. Allgood, Andrew W. Estes, Savannah, Don C. Keenan, Atlanta, for amicus curiae.

Glenn Frick, Robert P. Bleiberg, Atlanta, for appellee.

QUILLIAN, Presiding Judge.

This is an appeal from a summary judgment in favor of an insurer in an action to recover optional personal injury protection (PIP) benefits on an automobile insurance policy.

Mrs. Kay Nalley had a no-fault auto liability insurance policy with appellee insurer and was struck and killed by a hit and run driver. Appellants, Mrs. Nalley's surviving children and the administrator of her estate, demanded payment of the basic and full optional PIP benefits under the policy, totalling $50,000, tendering the premium therefor. Appellee paid the basic $5,000 PIP but refused to pay any additional PIP benefits because the policy did not include any optional PIP coverage. Appellants thereupon initiated this suit to collect the full optional coverage alleging that they were entitled to such coverage because appellee failed to offer Mrs. Nalley the opportunity to accept or reject the optional PIP coverage as required by Code Ann. § 56-3404b(b) (Ga.L.1974, pp. 113, 117; as amended through 1975, pp. 1202, 1206). Cross motions for summary judgment resulted in the grant of such judgment to appellee and denial of same to appellants. Held:

Although the policy provided that Mrs. Nalley was insured for basic PIP of $5,000 only, appellants contend that the trial court erred in granting appellee summary judgment as they were entitled to recover the maximum $50,000 PIP because Mrs. Nalley had not been offered the opportunity to accept or reject the optional PIP coverage as required by Code Ann. § 56-3404b(b), supra, and as construed by Jones v. State Farm, etc., Ins. Co., 156 Ga.App. 230(1), 274 S.E.2d 623. This case has been overruled by Atlanta Cas. Co. v. Flewellen, 164 Ga.App. 885, 300 S.E.2d 166 (1982) and is now pending review by the Supreme Court after grant of certiorari.

The record shows that Mrs. Nalley had an existing motor vehicle liability policy with appellee on August 23, 1977 when she executed a supplemental insurance application which gave her the opportunity to select the basic $5,000 PIP coverage or one of three optional PIP coverages up to $50,000. On the single sheet supplemental application there is a box next to each of the four possible PIP coverages, arranged in a vertical row, and the box next to the line entitled "Basic coverage--$5,000" has an X written in it, while the boxes in front of the other PIP options are blank. Further down on the application is the following: "NOTE: STATEMENT OF REJECTION BY NAMED INSURED: I reject all Optional Coverages not requested and completed on application for Family Automobile Insurance Coverages and Supplemental Application for Personal Injury Protection Coverages." Immediately following is Mrs. Nalley's signature and the date. The parties stipulated that the supplemental application was...