Phoenix Ins. Co. v. Womack

• Decision Date: 11 March 1985
• Docket Number: No. 69632,69632
• Citation: 329 S.E.2d 282,174 Ga.App. 140
• Parties: PHOENIX INSURANCE COMPANY v. WOMACK.
• Court: Georgia Court of Appeals

Page 282

329 S.E.2d 282

174 Ga.App. 140

PHOENIX INSURANCE COMPANY v. WOMACK.

No. 69632.

Court of Appeals of Georgia.

March 11, 1985.

Rehearing Denied March 25, 1985.

Certiorari Denied April 24, 1985.

Jeffrey S. Gilbert, Atlanta, for appellant.

G.G. Joseph Kunes, Jr., Tifton, for appellee.

BENHAM, Judge.

After an injury to appellee, an insured under a policy issued by appellant to appellee's father in January 1982, appellee's father tendered additional premiums and demanded $45,000 of personal injury protection ("PIP") coverage in addition to the $5,000 PIP coverage provided by the policy. When appellant denied the additional coverage, appellee brought suit. This appeal is from the grant of summary judgment to appellee and the concomitant denial of summary judgment to appellant on the issue of whether appellee was entitled to the additional PIP coverage.

1. As was the case in Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 300 S.E.2d 673 (1983), and St. Paul Fire etc. Ins. Co. v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984), the central issue here is the adequacy of the form employed by appellant in offering additional PIP coverage to appellee's father.

In St. Paul Fire etc., supra, the Supreme Court adopted a test of "substantial compliance" with the statutory requirements relating to offers of optional coverages. The form at issue in that case had a space for only one signature, but had separate spaces for rejecting various optional coverages. Finding that it was "clear from the form of the application that the intent of the insured was to reject optional PIP benefits...." the Supreme Court held the form to be in substantial compliance with OCGA § 33-34-5-(b). 252 Ga. at 470, 314 S.E.2d 215.

On the form at issue here, entitled "Supplementary Automobile Application--Georgia," spaces were provided for the applicant to place marks indicating acceptance or rejection of four optional coverages: collision, comprehensive, loss of use, and additional personal injury protection. For collision and comprehensive coverages, checks appeared in boxes indicating acceptance of specific coverages, and appellee's father's signature accompanied each of those elections. In the spaces provided for acceptance or rejection of loss of use and additional PIP coverages, checks appeared in boxes indicating rejection of those coverages, and appellee's father's signature accompanied each of those elections. Finally, appellee's father's signature appeared at the foot of the document along with that of the agent. It appears, then, that appellant required a signature to accompany each election to accept or reject optional coverages. "[I]t is clear from the form of the application that the intent of the insured was to reject optional PIP benefits ... Therefore, we hold that 'the form is in substantial compliance with the statutory requirement ... and satisfies the intent of the General Assembly to ensure " 'that insurers offer optional coverages to applicants for no-fault insurance and that an applicant's waiver of his privilege to obtain optional coverages be made knowingly and in writing.' " ' [Cits.]" 252 Ga. at 470, 314 S.E.2d 215.

2. In its order granting summary judgment to appellee, the trial court expressly found that "no separate spaces are provided on any application relative to this policy whereby the applicant could accept or reject each coverage ..." (Emphasis supplied.) The court went on to note, in apparent explanation of that finding, that the "application in question was to 'The Travelers' Insurance Company but the Insurance Company that issued the...