Vansant v. Allstate Ins. Co., 54098

• Decision Date: 13 June 1977
• Docket Number: No. 3,No. 54098,54098,3
• Citation: 142 Ga.App. 684,236 S.E.2d 858
• Parties: Ida P. VANSANT v. ALLSTATE INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 858

236 S.E.2d 858

142 Ga.App. 684

Ida P. VANSANT v. ALLSTATE INSURANCE COMPANY.

No. 54098.

Court of Appeals of Georgia, Division No. 3.

June 13, 1977.

Rehearing Denied June 29, 1977.

Marion A. Sams, Atlanta, for appellant.

Henning, Chambers & Mabry, Peter K. Kintz, Rex P. Smith, Atlanta, for appellee.

WEBB, Judge.

This appeal requires us to construe, for the first time, whether or not retirement income is "income or earnings" as contemplated by the "no-fault" provisions of the Georgia Motor Vehicle Accident Reparations Act (Ga.L.1974, pp. 113, 116, as amended; Code Ann. § 56-3403b).

Ida P. Vansant, the surviving spouse of Robert L. Vansant, who was killed as a result of an automobile-pedestrian accident involving an automobile insured by Allstate, filed an action seeking benefits under the driver's insurance policy for the loss of income or earnings under Code Ann. § 56-3403b(b)(2) and (4). At the time of his death Vansant was a retired federal employee receiving $13,167 a year, or $253.21 a week, from the Civil Service Retirement Fund. Immediately after his death, and as a direct result thereof, Mrs. Vansant began receiving only $111.69 a week, a loss to her of $141.52 a week from the fund.

Code Ann. § 56-3403b requires the owner of every registered vehicle to carry insurance coverage which provides "(b) compensation to insured injured persons, without regard to fault, up to an aggregate minimum limit of $5,000 per insured injured person for: . . .

"(2) 85 per cent. of the loss of income or earnings during disability with a maximum benefit of $200 per week; and

"(3) expenses, not to exceed $20 per day, reasonably incurred during a period of disability in obtaining ordinary and necessary services from others, excluding members of the injured person's household, in lieu of services that, had he or she not been injured, the injured person would have performed, not for income but for the benefit of his or her household; and

"(4) funeral services and burial expenses not to exceed $1,500 per person.

"In the event of the death of the injured person, survived by a spouse or dependent child or children, compensation under paragraphs (b)(2) and (b)(3) above shall be payable after such death as though the deceased were alive but totally disabled, such payment to be made to the spouse, if alive, otherwise to the child or children or the person having legal custody of any child or children, for use of such spouse or children as though awarded as a year's support for the spouse or children, or both. Survivor's benefits shall be payable until exhausted, at least monthly.

"The total benefits required to be paid under this section without regard to fault as the result of any one accident shall not exceed the sum of $5,000 per each individual covered as an insured person or such greater amount of coverage as has been purchased on an optional basis as provided elsewhere in this Chapter, regardless of the number of insurers providing such benefits or of the number of policies providing such coverage."

Allstate compensated Mrs. Vansant for funeral benefits in the amount of $1,530 under the above quoted provisions, but refused her claim for payment of 85 percent of the loss of her husband's income from the remaining $3,470. Citing no authorities, the trial court interpreted the term "loss of income or earnings during disability" to apply only during disability of the decedent and as a result of the fatal incident, and denied recovery.

While we agree with the conclusion of the trial court that "the statutory scheme (of the no-fault provisions) was to provide a means whereby direct payment, independent of common law liability, might be effected to parties...