Douglas v. Jefferson-Pilot Fire & Casualty Co. , 175 Ga. App. 457 ( 1985 )

175 Ga. App. 457 (1985) 333 S.E.2d 634

DOUGLAS
v.
JEFFERSON-PILOT FIRE & CASUALTY COMPANY et al.

70204.

Court of Appeals of Georgia.

Decided June 21, 1985. Rehearing Denied July 12, 1985.

William A. Dinges, for appellant.

Ward D. Hull, Walter B. McClelland, for appellees.

POPE, Judge.

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).

This case involves OCGA § 33-34-5 (b) as it existed prior to its amendment in Ga. L. 1982, p. 1234. The statute provided: "Each application for a policy of motor vehicle liability insurance sold in this state must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages listed in subsection (a) of this Code section and no such policy shall be issued in this state unless these spaces are completed and signed by the prospective insured." As is pertinent here, subsection (a) of OCGA § 33-34-5 provided: "Each insurer shall also make available on an optional basis the following coverage: (1) An aggregate limit of benefits payable without regard to fault up to $50,000.00 per person, which may be rejected or reduced to not less than an aggregate limit of benefits payable without regard to fault up to $5,000.00 per person by written consent of the policyholder." "[T]he intent of OCGA § 33-34-5 [cit.] is to ensure `that insurers offer optional coverages to applicants for no-fault insurance and that an applicant's waiver of his privilege to obtain optional coverages be made knowingly and in writing.' Jones, at p. 232. The purpose of the statute is to resolve conflicts which arise when an insured contends that he was not informed of his statutory right to optional benefits. When this claim is made, the resolution of the issue will be to look to the policy to determine if there was reduction or rejection of those benefits in conformance with the statutory scheme." Flewellen v. Atlanta Cas. Co., supra at 714.

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.

Judgment reversed. Deen, P. J., and Beasley, J., concur.