Georgia Farm Bureau Mutual Insurance v. Caldwell , 172 Ga. App. 560 ( 1984 )

Sognier, Judge.

Georgia Farm Bureau Mutual Insurance Company filed this appeal from the order of the Superior Court of Murray County granting F. L. Caldwell’s summary judgment motion on his claim for optional personal injury protection (PIP) benefits. The application form used by Georgia Farm Bureau in this case is identical to the one found defective in Tolison v. Ga. Farm Bureau &c. Ins. Co., 168 Ga. App. 187 (308 SE2d 386) (1983), affirmed on this issue and reversed on another issue by the Supreme Court in Tolison v. Ga. Farm Bureau &c. Ins. Co., 253 Ga. 97 (317 SE2d 185) (1984); Montgomery v. Ga. Farm Bureau &c. Ins. Co., 253 Ga. 169 (317 SE2d 837) (1984) and Ga. Farm Bureau &c. Ins. Co. v. Smith, 171 Ga. App. 475 (320 SE2d 261) (1984). Those decisions control the case sub judice and we therefore affirm the trial court’s grant of summary judgment in favor of Caldwell on the basis that Georgia Farm Bureau’s application form did not meet the requirements of OCGA § 33-34-5 (b).

Decided November 8, 1984. James H. Phillips, for appellant. William W. Keith III, for appellee.

Georgia Farm Bureau appeals from that part of the trial court’s order granting Caldwell statutory penalties, punitive damages, and attorney fees. Caldwell applied to Georgia Farm Bureau for automobile liability insurance on or about January 31, 1980; the automobile accident which is the basis for Caldwell’s claim occurred on October 5, 1981; suit was filed October 27, 1982; and the trial court’s judgment was handed down on March 6, 1984. Since this suit was filed under identical conditions with Montgomery, supra, that is, during the pendency of Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), we are constrained to follow the holding in Montgomery where the Supreme Court stated that “this is an inappropriate case for imposition of such damages.” Id. at 171 (3). Therefore, we reverse that part of the trial court’s order granting Caldwell’s motion for summary judgment as to statutory penalties, punitive damages and attorney fees.

Judgment affirmed in part; reversed in part.

McMurray, C. J., and Deen, P. J., concur.