Travelers Indem. Co. v. Thomas

• Decision Date: 13 November 1984
• Docket Number: 69045,Nos. 69041,s. 69041
• Parties: TRAVELERS INDEMNITY COMPANY et al. v. THOMAS. PHOENIX INSURANCE COMPANY v. THOMAS.
• Court: Georgia Court of Appeals

Page 735

324 S.E.2d 735

172 Ga.App. 816

TRAVELERS INDEMNITY COMPANY et al. v. THOMAS.

PHOENIX INSURANCE COMPANY v. THOMAS.

Nos. 69041, 69045.

Court of Appeals of Georgia.

Nov. 13, 1984.

Rehearing Denied Dec. 3, 1984.

Bryan F. Dorsey, Atlanta, for appellants.

Kenneth M. Henson, Jr., Columbus, Millard D. Fuller, Americus, for appellee.

DEEN, Presiding Judge.

The two cases appealed here involve the same parties and arise out of the same transaction or series of transactions. Appellant Travelers Indemnity Co. (Travelers), as a holding company of which appellant Phoenix Insurance Co. (Phoenix) is a subsidiary, filed an action (case no. 69041) seeking a declaratory judgment establishing the rights of the parties with respect to benefits due appellee Mrs. Pearl Thomas, widow of Phoenix' insured who died as a result of an automobile accident; appellee Thomas brought an action (case no. 69045) against Phoenix, seeking payment of maximum Personal Injury Protection (PIP) benefits pursuant to Jones v. State Farm etc. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980); and appellant Phoenix was added to the former action (no. 69041) as a party plaintiff upon motion of Travelers. The two cases were treated as one in the trial court, and we consider them together on appeal.

The late Rev. Daniel Thomas and his wife, appellee here, first obtained automobile insurance with Phoenix in 1969, or prior to enactment of Georgia's No-Fault Insurance law, OCGA § 33-34-1 et seq. The policy was renewed every six months. At all times the PIP coverage was $5,000, the basic or minimum amount available. On December 30, 1974, in response to a mailing from appellants, Rev. or Mrs. Thomas apparently executed a form indicating that they wished to reject the higher coverages offered and accept the basic $5,000. Although the election form bore Rev. Thomas' name on the single signature line, there is some dispute as to whether it was actually signed by him or by his wife, or even by a third person. The form bears the notation, written in yet another hand (presumably that of an employee of the insurance agent), "Only wants basic PIP coverage."

On March 11, 1982, four days before the policy was due for renewal, Thomas was injured in an automobile accident and died seven days later. In the meanwhile, on or about March 5, 1982, Travelers/Phoenix' home office in Hartford, Conn., prepared a mailing to all its automobile insurance policyholders offering the opportunity to update existing coverage by indicating acceptance or rejection of various optional coverages, including higher PIP coverages. This form had separate boxes to be checked for each coverage and contained two signature lines. The mailing took place on or about March 10, 1982, one day before Thomas' fatal accident. Mrs. Pearl Thomas denied that such a mailing was ever received and further denied that she had ever heard of optional no-fault coverages; the record, however, contains a form of the sort mailed on the above date which was taken from the insurance agent's files and on which there appear checked boxes indicating rejection of all optional PIP coverages and acceptance of the basic $5,000. This form is dated March 15, 1982 (that is, during the time of Thomas' hospitalization and three days before his death), and bears a signature purporting to be that of the Rev. Mr. Thomas. The form also contains a space for the insured to indicate the effective date of any optional coverages he may have elected; this space was left blank on this particular form.

On April 14, 1982, Mrs. Thomas' attorney notified appellant Phoenix by letter that Rev. Thomas was electing the maximum PIP coverage under authority of Jones v. State Farm, supra, and its progeny, and was formally tendering the premiums for such coverage. When Phoenix declined to accept the tender or to pay the sums demanded, the actions noted above were instituted. Both parties moved for summary judgment, and the trial court initially denied both motions. Upon appellee's renewal of her motion, however, the court reconsidered the evidence, granted summary judgment in favor of appellee Thomas, and dismissed appellants' motion for summary judgment. Appellants enumerate as error the following: (1), (2), (3), the trial court's holding as a matter of law that the March 15, 1982, rejection applied only prospectively and did not apply to a policy expiring on that date, and that the signature was unauthorized and therefore ineffective; (4) the trial court's finding as a matter of fact that the Rev. Mr. Thomas was unconscious from March 12, 1982, until the date of his death on March 18, 1982; (5) the trial court's alleged abuse of discretion in allowing appellee to renew her motion for summary judgment on allegedly identical record and legal grounds; and (6) the court's granting summary judgment to appellee and dismissing appellants' motion for a declaratory judgment. Held:

1. Evidence was adduced in the court below that the original application form allegedly executed by Rev. Thomas in 1969 was systematically destroyed, along with similar old records, when Phoenix/Travelers removed its place of business prior to 1982. An authorized official of appellants testified that the information contained on such original documents was routinely, in the ordinary course of business, transcribed in a permanent "History Journal" at a time almost simultaneous with the generation of such documents; that the originals thereby became merely duplicates of the entries in the History Journal; that they were therefore considered expendable and were...