Occidental Fire & Casualty Co. v. Buyce , 173 Ga. App. 881 ( 1985 )

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I would affirm the trial court. In my view Bailey v. Ga. Mut. Ins. Co., 168 Ga. App. 706 (309 SE2d 870), and Dobbins v. Occidental Fire & Cas. Co., 171 Ga. App. 98 (319 SE2d 31), should be overruled because they are fundamentally inconsistent with the spirit of the Supreme Court’s holding in Perry v. Intl. Indem. Co., 251 Ga. 709 (309 SE2d 139). My reading of Perry leads me to conclude that an “insured,” as defined by OCGA § 33-34-2 (5), may demand coverage of $50,000 upon the tender of an additional premium “in a case in which the insurance applicant did not properly execute a signed rejection of optional benefits.” Perry v. Intl. Indem. Co., 251 Ga. 709, 710, supra. In pertinent part, OCGA § 33-34-2 (5) states: “ ‘Insured’ means, in addition to the insured named in the policy, his spouse and children if residing in the same household, the relatives of either the insured or his spouse if residents of the named insured’s household, any pedestrian struck by the insured vehicle, and any other person using or occupying the insured vehicle with the express or implied permission of the named insured or his spouse.” (Emphasis supplied.)

Since the claimant Buyce was an “insured” as the term is used in OCGA § 33-34-2 (5), and since the insurance applicant (Williams) did not properly execute a signed rejection of optional benefits, I would hold that the claimant was entitled to demand the benefit of $50,000 coverage upon the tender of the additional premium due.

I am authorized to state that Presiding Judge Deen joins in this dissent.