Peterson v. Liberty Mut. Ins. Co., 76955

• Decision Date: 15 September 1988
• Docket Number: No. 76955,76955
• Citation: 188 Ga.App. 420,373 S.E.2d 515
• Parties: PETERSON et al. v. LIBERTY MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 515

373 S.E.2d 515

188 Ga.App. 420

PETERSON et al. v. LIBERTY MUTUAL INSURANCE COMPANY.

No. 76955.

Court of Appeals of Georgia.

Sept. 15, 1988.

David L. Hirsch, Columbus, for appellants.

Ray L. Allison, Columbus, for appellee.

BIRDSONG, Chief Judge.

This is an appeal from the order of the superior court granting the appellee/defendant's motion for summary judgment.

On August 18, 1986, appellant Bernice Peterson, the wife of appellant Abraham Peterson, contacted Mr. Glidewell who was an agent for the appellee, Liberty Mutual Insurance Company, in order to obtain automobile insurance coverage for appellants' cars. Acting as agent for her husband, Bernice Peterson signed an application for automobile insurance and tendered a check in the amount of $159 as an advance payment thereon. She also signed certain other documents including the following acknowledgment: "I hereby acknowledge and agree that the automobile insurance I have applied for (Date) 8-18-86 from Liberty Mutual Fire Insurance Company will take effect on the specified date as indicated on the application after I am notified of approval by a Liberty Mutual Representative." Nothing contained in the forms, at the time she signed them, expressly provided for any earlier insurance effective date, provided that the insurance had been approved, or that an insurance binder had been issued thereon. However, the receipt for payment of $159 did contain an entry of "To be assigned" in a block entitled "Complete 15 Digit Policy No.," although this same form also had blocks entitled "Binder No." and "Effective Date," respectively, which were left blank. Bernice Peterson testified by way of deposition that, Mr. Glidewell "told me ... he had to do a license check on my husband, and after a couple of days, then the insurance would take effect, but I assumed I had a binder on the insurance after I walked out ... the door, because he accepted my down payment." She also testified that Mr. Glidewell said he would notify her by mail "when I was covered," and that he would send "a letter or a policy number through the mail." Appellant Abraham Peterson testified that he let his wife make the arrangements concerning automobile insurance, and that he was not present when she talked with Mr. Glidewell. Appellant Abraham Peterson does not recall seeing the insurance forms or ever seeing any card or policy from the appellee. However, he testified that several days after his wife's return from Mr. Glidewell's office, he received a telephone call from "a man" who indicated that there was a Social Security number discrepancy that needed to be corrected and he gave him the correct information. Later he received another call from the same individual who said that his "insurance was okay," "insurance went through," "you have got insurance coverage with Liberty Mutual," or words to this effect. He does not know who the man is with whom he talked, and the record is otherwise silent either as to whom this man might be or as to what his position, if any, might be with the appellee.

Subsequently on August 30, 1986, Bernice Peterson was injured when she was struck by an uninsured motorist while she was driving one of appellants' cars. The appellants' car was damaged beyond repair. On or about September 5, 1986, appellee without explanation returned the amount of $159 to appellant Abraham Peterson. Thereafter, on or about September 23, 1986, appellee sent a letter to appellant Abraham Peterson informing him that the application for insurance had been denied.

The insurance application form signed by Bernice Peterson has a block at the bottom of the last page thereof labeled "Applicant's Authorization." Within this block is space in which the time and date when the policy is to commence can be written; this space has been left blank. At the very bottom of this same block is a space where a manager or supervisor of the appellee can sign acknowledging his review of the application. Although this space also is blank, closely adjacent thereto appears the handprinted notation "Approved by Tim Gramig on 8-15-86." This notation has been initialed by some unknown person. In addition the record contains an affidavit from the Tax Commissioner of Muscogee County who has reviewed the insurance application and asserts that based upon his experience he "would find sufficient evidence of insurance as of August 15, 1986, as shown by the approval thereon to issue a motor vehicle tag in this County."

The appellants assert three enumerated errors as follows: (1) It was error to grant summary judgment to the defendant holding that there was no genuine issue of material fact; (2) It was error for the trial court to rule as a matter of law that there is no contract between the parties; and (3) It was error to dismiss the case on its merits. We will address these three enumerations simultaneously.

On a motion for summary judgment, "the movant has the burden of showing affirmatively that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law. Moreover, when the movant is the defendant, he has the additional burden of piercing the plaintiff's allegations and affirmatively negating at least one essential element of the plaintiff's case." Burns v. Gleason, 183 Ga.App. 245, 247, 358 S.E.2d 646. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Bridges v. Interstate Truck Leasing, 171 Ga.App. 361, 319 S.E.2d 531; see Dickson v. Dickson, 238 Ga. 672, 675, 235 S.E.2d 479.

Under the facts of this case, the appellants would have received the benefit of insurance coverage from the appellee only if either the appellee duly accepted appellants' application (offer) for insurance before the accident occurred or an insurance binder was in effect before and at the time of the...