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Lawskills.com Georgia Caselaw
DOUGLAS v. JEFFERSON-PILOT FIRE & CASUALTY COMPANY et al.
70204.
POPE, Judge.
Action on policy. DeKalb Superior Court. Before Judge Weeks.
Pursuant to the holdings in Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), and Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), appellant brought this action against his insurer, appellee, seeking inter alia the recovery of $45,000 in optional personal injury protection (PIP) benefits under the Georgia "no-fault" law, OCGA 33-34-1 et seq. Appellant made application for automobile insurance coverage on March 18, 1976; the resultant policy was effective on that date and remained in effect through the date of the accident for which appellant now seeks benefits thereunder, November 2, 1977. The sole issue presented for resolution by this appeal is the correctness of the trial court's grant of appellee's motion for summary judgment on the ground that the application form provided by appellee and completed by appellant was in substantial compliance with OCGA 33-34-5 (b).
The optional coverages portion of the application form in the case at bar is found on the reverse side of the application form on the lower half of the page. This portion of the application is reproduced in Appendix I of this opinion. "OCGA 33-34-5 (a) [cit.] requires 'written consent' to either reject or reduce the coverage required to be offered. OCGA 33-34-5 (b) [cit.] mandates that rejections or acceptances be accompanied by a signature, and it specifies the optional coverages to be those listed in subsection (a). The optional coverages listed there are PIP and property damage. [Cit.] . . . [T]he requirements of subsection (b) are satisfied by two signatures, one for acceptance or rejection of optional PIP and another to indicate acceptance or rejection of vehicle damage coverage." Flewellen v. Atlanta Cas. Co., supra at 711. Since it contains only one signature space, the subject application form, like the one set forth in Appendix I of Atlanta Cas. Co. v. Flewellen, 164 Ga. App. 885, 893 (300 SE2d 166) (1982), is patently not in full compliance with OCGA 33-34-5 (b). Nevertheless, is the application form in substantial compliance with the statute?
In St. Paul Fire &c. Ins. Co. v. Nixon, 252 Ga. 469 (314 SE2d 215) (1984), the Supreme Court held that the application form under review in that case was in substantial compliance with OCGA 33-34-5 (b). That application contained separate spaces for the insured to indicate his acceptance or rejection of the optional coverages, but the insured's signature appeared only at the bottom of the page offering the optional coverages. A full verbal description of the pertinent portions of the application is set forth in the opinion. For further elucidation, the optional coverages portion of the Nixon application is set forth in Appendix II of this opinion. Following the holding in Nixon, this court found a similar application form in Reed v. Ga. Farm Bureau Mut. Ins. Co., 171 Ga. App. 126 (318 SE2d 746) (1984), to be in substantial compliance with the statute. The optional coverages portion of this application form is set forth in Appendix III of this opinion. The applications approved by the courts in Nixon and Reed clearly reveal that the intent of the insured was to reject optional PIP benefits and vehicle-damage protection. The optional coverages information in those cases was prominently displayed in a separate part of the form and was provided in clear and easily readable sentences. Although prominently displayed, the information on the subject application is provided in abbreviated form, with no explanation of the meanings of the abbreviations. In our view, this application is essentially the same as the one found to be non-complying in Flewellen v. Atlanta Cas. Co., 250 Ga. 709, supra. See Appendix I, Atlanta Cas. Co. v. Flewellen, 164 Ga. App. at 893, supra. See also Tolison v. Ga. Farm Bureau Mut. Ins. Co., 253 Ga. 97 (1) (317 SE2d 185) (1984). Therefore, we conclude that the application form in the case at bar was not in substantial compliance with OCGA 33-34-5 (b) as said statute existed prior to the 1982 amendment. Accordingly, the trial court's order granting summary judgment to appellee insurer must be reversed.
APPENDIX III William A. Dinges, for appellant.
Ward D. Hull, Walter B. McClelland, for appellees.
DECIDED JUNE 21, 1985 -- REHEARING DENIED JULY 12, 1985 -- CERT. APPLIED FOR.
Thursday May 21 16:26 EDT


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