United Services Auto. Ass'n v. Gottschalk

• Decision Date: 15 February 1994
• Docket Number: No. A93A1954,A93A1954
• Citation: 441 S.E.2d 281,212 Ga.App. 88
• Parties: UNITED SERVICES AUTOMOBILE ASSOCIATION v. GOTTSCHALK.
• Court: Georgia Court of Appeals

Page 281

441 S.E.2d 281

212 Ga.App. 88

UNITED SERVICES AUTOMOBILE ASSOCIATION v. GOTTSCHALK.

No. A93A1954.

Court of Appeals of Georgia.

Feb. 15, 1994.

Savell & Williams, John C. Parker, and Swift, Currie, McGhee & Hiers, Michael A. Ryder, and Kelli A. Andrew, Atlanta, for appellant.

Geiger & Pierce, James N. Geiger, Perry, McKenney, Jordan & Carey, Jane M. Jordan, and Martin, Snow, Grant & Napier, Cubbedge Snow, Jr., Macon, for appellee.

ANDREWS, Judge.

United Services Automobile Association (USAA) appeals from judgment entered on the jury's finding that a policy of insurance was in place on Gottschalk's automobile when his son was involved in an accident on September 9, 1988.

1. USAA's first enumeration is that the court erred in not granting its motion for j.n.o.v.

" 'A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.' [Cit.] Even 'slight' evidence was regarded as sufficient to prevent the devastations of a directed verdict, in Worth v. Ga. Farm & c. Ins. Co., [174 Ga.App. 194 (330 SE2d 1) (1985) ]. Where there is 'some evidence,' or 'any evidence' supporting the respondent's assertions, disputed issues are created which are for the jury resolution." Grabowski v. Radiology Assoc., 181 Ga.App. 298, 301(3), 352 S.E.2d 185 (1986). The same standard applies when considering the denial of a j.n.o.v. Brandvain v. Ridgeview Institute, 188 Ga.App. 106, 112(1a), 372 S.E.2d 265 (1988), aff'd 259 Ga. 376, 382 S.E.2d 597 (1989); Ostroff v. Coyner, 187 Ga.App. 109, 115(3b), 369 S.E.2d 298 (1988).

Here, USAA moved for directed verdict on the sole ground that "at the time the notice of cancellation was sent out to Mr. Gottschalk he was clearly 60 days or more in arrears [on his premium payments]."

Viewed with all inferences in favor of Gottschalk, the evidence was that he had carried insurance with USAA since 1969, including home and automobile insurance. The 1983 Subaru involved in the wreck was listed on the policy, along with three other automobiles. On June 16, 1988, USAA issued an "Amended Declarations" page, reflecting the auto policy's renewal date of July 6, 1988 to January 6, 1989. The policy itself stated that "if this is a renewal or continuation policy, we will cancel only: a. for nonpayment of premium; or [reasons not involved here]."

Prior to 1988, if payments were not timely, USAA had included on the face of the premium notices a statement that the account was delinquent; a certain amount needed to be paid by a certain date; if not paid and the account became 60 days delinquent, the policy would be cancelled. USAA is a membership association and the membership objected to this language. In its place, the following appeared: "Amount billed on previous statement was not received by closing date. If you have made a recent payment that is not shown on this statement, please subtract it from the payment plan of your choice and remit the difference. Thank you."

Each notice contained a "closing date," for example, December 21, 1987, and a "next closing date," for example, January 21, 1988. The removable payment coupon stated, for this example, "To avoid a late fee, payment is due in our office by 01-11-88."

Gottschalk lived in Perry and was working in north Georgia as a real estate appraiser. For that purpose, he maintained an Atlanta apartment and returned home on the weekends. His wife picked up the mail at their post office box and left bills on his desk for his attention on the weekends. His practice was to pay the bills once a month.

The premium notices provided three payment options, payment in full, payment by the "regular plan," and payment on the "extended plan." This last option provided for the lowest periodic payment, required monthly, and was used by Gottschalk. In 1987, Gottschalk experienced some financial difficulties and was one payment behind. He contacted the 800 number maintained by USAA and was told that if a payment had been sent late and crossed the next billing statement in the mail, the payment would not have been credited. In that case, Gottschalk was told to deduct "that payment from the current billing statement and pay the balance, ... and that's what I've been doing ever since 1987 and there's never been anything to alert me to the fact that that's not something that they wanted me to do."

The payment history of Gottschalk reflected that payments were made in this fashion throughout 1988. ¹ The last statement received by Gottschalk was that showing a closing date of August 19, 1988, and no "next closing date." The statement of mailing by USAA reflected this statement had been mailed on August 23, 1988 from San Antonio, Texas. This statement included a cancellation notice that the account had not been paid as required and that the insurance "will be cancelled for nonpayment of premium ... effective September 7, 1988." It further provided that, upon receipt of payment postmarked before September 7, 1988, the coverage would continue. The amount shown as due was $821.65. This statement was not opened by Gottschalk until after the September 9th wreck.

In response to the statement showing next closing date of July 21, 1988, Gottschalk sent a payment for $269.55 on August 21, 1988. He received the statement with next closing date of August 19, 1988, which showed a total premium due of $545.60 and did not reflect the $269.55 payment. At this point, Gottschalk believed that he was only 30 days in arrears and not subject to cancellation under the terms of the policy and the notices printed on the statements. On September 19, he sent $276.05, the remainder of the $545.60.

When Gottschalk had called to report the accident, sometime between its occurrence and September 19, he was told that there was some question about coverage.

On September 19, he opened the last statement, including the cancellation notice, as well as a letter dated August 26, 1988. That letter acknowledged the payment of $269.55, but stated that USAA was holding the partial payment "pending receipt of the additional amount of $552.10 postmarked prior to September 7, 1988. If payment ... is not received as required, the cancellation will take effect and your partial payment will be returned." On September 20, a postal money order for the $552.10 was sent by overnight mail to USAA. Gottschalk's last two premium checks, including the one being held, were both processed by USAA on September 29th, and no money was returned.

On September 21, USAA sent a letter reflecting cancellation effective September 7 and a "total return premium" of $590.68. This was explained as a computer resolution and no money was actually returned to Gottschalk. A "new" policy declaration was issued dated September 28, reflecting coverage from September 21, 1988 through March 21, 1989.

In 1986, Gottschalk had received a cancellation notice due to late payment but, upon payment, was notified that the cancellation was rescinded and coverage was continued without a lapse.

a. In this light, it cannot be said as a matter of law that Gottschalk was 60...