Stafford v. Allstate Ins. Co.

• Decision Date: 20 January 1984
• Docket Number: No. 40256,40256
• Citation: 311 S.E.2d 437,252 Ga. 38
• Court: Georgia Supreme Court
• Parties: Paul L. STAFFORD, et al. v. ALLSTATE INSURANCE CO.

Page 437

311 S.E.2d 437

252 Ga. 38

Paul L. STAFFORD, et al. v. ALLSTATE INSURANCE CO.

No. 40256.

Supreme Court of Georgia.

Jan. 20, 1984.

James K. Lange, James K. Lange, P.C., Savannah, for Paul L. stafford.

Thomas S. Carlock, R. Clay Porter, A. Martin Kent, R. Stephen Sims, Dennis, Corry, Webb, Carlock & Williams, Atlanta, for Allstate Ins. Co.

Roger F. Huff, John E. James, James E. Butler, Jr., Alfred L. Allgood, Andrew W. Estes, Don C. Keenan, Lamar W. Sizemore, Jr., William S. Stone, amici curiae.

GREGORY, Justice.

Certiorari was granted to consider the opinion of the Court of Appeals in Allstate Insurance Co. v. Stafford, 166 Ga.App. 599, 305 S.E.2d 163 (1983). The trial court denied Allstate's motion for summary judgment. The Court of Appeals reversed, and we affirm the Court of Appeals.

The Staffords, husband and wife, are insureds under a policy of automobile insurance issued by Allstate effective September 23, 1973. This was prior to the effective date of the Georgia Motor Vehicle Accident Reparations Act (No-Fault). Ga.L.1974, p. 113. The Staffords were injured in an automobile collision on June 12, 1978. The issue to be decided is the amount of no-fault insurance coverage the Staffords are entitled to under the policy. They contend coverage is $50,000 for personal injury protection under the provisions of OCGA § 33-34-5(c) (Code Ann. § 56-3404b). Allstate contends coverage is limited to $5,000.

In the trial court Allstate offered evidence in the form of the affidavit of the Service Division Manager of the company who supervised mailing of no-fault notices in February of 1975. He averred that the company, through his supervision, mailed a notice to all named insureds at the address shown in the policy by first class mail. The notice included a letter explaining the options available under no-fault coverages and a "Georgia No-Fault Optional Coverages" chart on the back of which a "Selection Form" was provided. Copies of the coverages chart and the selection form are shown in Appendix A to this opinion. The Staffords filed counter-affidavits denying receipt of the notice.

1. The Court of Appeals relied on its decision in Wiard v. Phoenix Insurance Company, 166 Ga.App. 47, 303 S.E.2d 161. There the court analyzed OCGA § 33-34-5(c) (Code Ann. § 56-3404b) and held that an insurer had met its obligation to give the insured an "opportunity to accept or reject, in writing, the optional coverages" by making the following showing: "(1) That written notice of the optional coverages (2) bearing prepaid first-class postage and (3) directed to the insured at the address stated in the policy (4) was deposited in the United States Mail." 166 Ga.App. at 49, 303 S.E.2d 161. We granted certiorari in Wiard, supra, and reversed, not because we differed with the Court of Appeals' analysis of the four-part mailing procedure, but because we found the document mailed to the insured to be inadequate. Wiard v. Phoenix Insurance Company, 251 Ga. 698, 310 S.E.2d 221 (1983). We held such a document must contain "(1) written information clearly stating the optional no-fault PIP coverage and the optional no-fault vehicle damage coverage, and (2) a means for the insured to make a written acceptance or rejection of each. Signatures, though acceptable, are not required. Mere blocks to be checked are sufficient." At p. 700, 310 S.E.2d 221. In the documents Allstate mailed the Staffords the optional coverages are set forth and provision made for selection by checking appropriate blocks. A blank space for the insured's signature is given at the bottom of the selection form. We hold the documents mailed to the Staffords meet the criteria of our decision in Wiard, supra. We further hold that OCGA § 33-34-5(c) (Code Ann. § 56-3404b) does not require actual receipt by the insured but only the four-part mailing procedure set forth above. We find no conflict in the evidence as to the issue of whether the insured was given an "opportunity to accept or reject, in writing, the optional coverages" as required by the statute. There is evidence of proper mailing of an adequate document. Actual receipt is not required and we hold that evidence of nonreceipt is not evidence of failure to mail. It was proper for the trial court to grant summary judgment to the insurer.

2. The Staffords contend it is a denial of equal protection under the United States Constitution for the legislature to require actual notice and opportunity for an insured in a new policy to accept or reject optional benefits as set out in OCGA § 33-34-5(b) (Code Ann. § 56-3404b) and interpreted in Flewellen v. Atlanta Casualty Co., 250 Ga. 709, 300 S.E.2d 673 (1983), but to merely require mailing of notice and opportunity to existing insureds under OCGA § 33-34-5(c) (Code Ann. § 56-3404b) as interpreted in Division One hereof. We note that, as to new insurance contracts, there is a necessity for contact by the applicant with the insurer. As to existing insureds, the insurer must make the contact. In the former situation the occasion for execution of a written application in the presence of the insurer is readily available. A conscious decision to acquire additional coverage at additional cost can be made. In the latter situation an opportunity for a personal contact by the insurer with the insured can at best only be invited by the insurer. We find the distinction between applicants for new policies and existing insureds a rational one in light of a legislative purpose to afford an opportunity for insureds to obtain optional coverages without imposing the coverage in the absence of a conscious choice. See Allrid v. Emory University, 249 Ga. 35, 38, 285 S.E.2d 521 (1982); L. Tribe, American Constitutional Law, § 16-2, p. 994 (1978).

3. The Staffords point out they made several appearances in the office of Allstate subsequent to the effective date of the no-fault statute and prior to the date of the automobile collision. They contend an offer of optional coverages should have been made during one of these visits. We do not find such a requirement in the statute. OCGA § 33-34-5(c) (Code Ann. § 56-3404b) applies to policies in existence on March 1, 1975. OCGA § 33-34-5(b) (Code Ann. § 56-3404b) applies to applications for policies beginning March 1, 1975. Each category of policies is governed by the respective requirements of the statute. Nowhere in the statute is there a requirement for an additional offer of optional coverages.

Judgment affirmed.

All the Justices concur, except MARSHALL, P.J., concurs in the judgment only, and SMITH, J., dissents to Division 1 and the judgment.

APPENDIX A

* Coverages VA02, VA03, VA04 are broader than coverages VB01, VB02, VB03, and VB04 and therefore are more expensive. The "average cost per vehicle" column is designed to show the relative differences in cost and is accurate for the "average" situation. However, costs do vary according to such variables as place of residence, age of drivers, use of car, etc. and may be above or below the figures shown. Commercial vehicle rates will vary drastically due to territory and use classification differences. Therefore, no average annual cost is shown for commercial vehicles. For exact information on the cost for you, contact your Allstate agent or the nearest Allstate office. For Allstate Indemnity policyholders the cost would be 25% to 40% higher than the cost shown above.

Georgia No Fault

Optional Coverages

We are required to add the basic Personal Injury Protection (VA01) to all

auto liability policies. In addition, we are required to offer additional

Personal Injury Protection coverages. The required protection and the options

are shown in the following chart.

                             Personal Injury Protection Coverage Comparison Chart
                                                                                        Average
                                                                                         Annual
                                                                                       Cost Per
                                                Wage                                    Private
                          Aggregate  Medical    Loss    Funeral  Survivors  Services  Passenger
                Coverage    Limit     Limit    Limit     Limit     Limit     Limit     Vehicle*
                -------------------------------------------------------------------------------
                  The following coverages provide benefits for you, your spouse, resident
                  relatives, guest passengers and pedestrians in or struck by the insured
                  vehicle
                VA01       $ 5,000   $2,500   $200/Wk.  $1,500      (1)     $20/Day      $12
                VA02       $10,000     (1)      (1)       (1)       (1)       (1)         22
                VA03       $25,000     (1)      (1)       (1)       (1)       (1)         32
                VA04       $50,000     (1)      (1)       (1)       (1)       (1)         46
                  The following coverages provide benefits up to $5000 for guests and
                  pedestrians and up to the limits shown for you, your spouse and resident
                  relatives
                VB01       $10,000     (1)    $200/Wk.  $1,500    $5,000    $20/Day       19
                VB02       $25,000     (1)    $200/Wk.  $1,500    $5,000    $20/Day       22
                VB03       $50,000     (1)    $200/Wk.  $1,500    $5,000    $20/Day       25
                VB04       $50,000     (1)    $400/Wk.  $1,500    $5,000    $20/Day       29
                

1) Subject to the aggregate limit

Note Coverages VA02, VA03, VA04 are broader than coverages VB01, VB02, VB03, and

Note VB04 and therefore are more expensive. The "average cost per vehicle" column

Note is designed to show the relative differences in cost and is accurate for the

Note "average" situation. However, costs do vary according to such variables as

Note place of residence, age of drivers, use of car, etc. and may be above or

Note below the figures shown. Commercial vehicle rates will vary drastically due

Note to territory and use classification differences. Therefore, no average annual

Note cost is shown for commercial vehicles. For exact information on the cost for

Note you,...