Tolison v. Georgia Farm Bureau Mut. Ins. Co.

• Decision Date: 07 September 1983
• Docket Number: No. 66173,66173
• Parties: TOLISON v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 386

308 S.E.2d 386

168 Ga.App. 187

TOLISON v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.

No. 66173.

Court of Appeals of Georgia.

Sept. 7, 1983.

Rehearings Denied Sept. 28, 1983.

Certiorari Granted Oct. 20, 1983.

Certiorari Denied Jan. 5, 1984.

C. Alan Mullinax, Judy C. King, Stone Mountain, for appellant.

Denmark Groover, Jr., Macon, Charles A. Wiley, Jr., Donald M. Fain, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This case is another one of a series of cases reaching this court on appeal involving automobile insurance on a policy issued with reference to the question of whether the insurer has provided its no-fault insureds with "an opportunity to accept or reject, in writing, the optional coverages required to be offered" (OCGA § 33-34-5 (Code Ann. § 56-3404b), prior to its amendment by Ga.L.1982, p. 1234, which amendment is not applicable here) and whether the optional coverages were therein accepted or rejected by the insured.

The main issue is the same as that found in such cases as Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623; Atlanta Cas. Co. v. Flewellen, 164 Ga.App. 885, 300 S.E.2d 166, reversed in Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 300 S.E.2d 673; Nixon v. St. Paul Fire etc. Ins. Co., 166 Ga.App. 38, 303 S.E.2d 158; and Government Employees Ins. Co. v. Mooney, 250 Ga. 760, 300 S.E.2d 799.

Helen (Mrs. Harold E.) Tolison, on behalf of her husband, made application for vehicle insurance with Georgia Farm Bureau Mutual Insurance Company on or about May 31, 1979, using the insurer's application form which was very abbreviated, having only initials and numbers for the types of coverage requested in which she signed for same only once, acknowledging that she accepted (apparently for her husband) "the coverages and/or limits that have a check ... placed in front of above items and the absence of a check ... indicates my rejection of that coverage and/or limit." Apparently, a policy was issued and thereafter Harold E. Tolison was injured in a vehicular incident. Based on Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623, supra, Tolison expressed that he wished to accept the statutory continuing offer of optional personal injury protection of the maximum ($50,000), and the insurer and insured having failed to reach agreement with reference to his demands for payment under the policy, Tolison brought suit against the insurer contending the insurer had violated the law by failing to make available to him the optional coverages as required by (OCGA § 33-34-5 (Code Ann. § 56-3404b) prior to its recent amendment as shown above) and he had elected to accept the maximum personal injury coverage and had tendered to the defendant the premiums due for such coverage. The defendant having failed and refused to pay these optional benefits lawfully due the plaintiff, the plaintiff brought this action to recover those benefits and also to recover the statutory penalty for defendant's non-payment, that is, 25% of the claimed amount, plus punitive damages and attorney fees.

The defendant answered in substance denying the claim. Thereafter considerable discovery has occurred and both parties have moved for summary judgment. By affidavit, Mrs. Tolison contends (in support of the plaintiff's motion for partial summary judgment) that she alone had signed and executed the application for the insurance, her husband being out of town and that the "Defendant, by and through its authorized agent, did not explain ... the optional personal injury protection coverage available. The separate spaces as provided on said application to indicate by a checkmark the acceptance or rejection of each of the proffered optional coverages were not checked by [her]." In opposition and in support of the defendant's motion for summary judgment an insurance agent with the defendant, by affidavit, contends he took the application from Mr. and Mrs. Harold E. Tolison and his affidavit seemingly reflects that more than one meeting was had with the Tolisons, although it is uncertain when and where he explained in detail (as he so contends) "each of the optional coverages available to the Plaintiff under the No-Fault Law ... [and] that the optional benefits would require an additional premium [and] they [the Tolisons] were only interested in the most basic, inexpensive coverage possible as far as no-fault coverage was concerned." In consideration of both motions, the court held "the policy application is in substantial compliance with the statute and is not subject to the criticism voiced in [Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623, supr...