St. Paul Fire & Marine Insurance v. Nixon , 252 Ga. 469 ( 1984 )

Marshall, Presiding Justice.

This case is here on certiorari. Nixon v. St. Paul Fire &c. Ins. Co., 166 Ga. App. 38 (303 SE2d 158) (1983). It presents the question of whether an application for optional no-fault motor-vehicle insurance coverage is in substantial compliance with the requirements of OCGA § 33-34-5 (b) (Code Ann. § 56-3404b) (Ga. L. 1974, p. 113, § 4), where the application contains separate spaces for the insured to indicate his acceptance or rejection of the optional coverages, but the insured’s signature appears only at the bottom of the page of the insurance application offering the optional coverages. We hold that such a policy application is in substantial compliance with § 33-34-5 (b) (Code Ann. § 56-3404b). These are the facts:

St. Paul Fire & Marine Insurance Company brought this declaratory-judgment action, alleging that it issued the defendant, Randy Clark Nixon, a policy of motor-vehicle insurance; that this policy contains the minimum no-fault benefits required by Georgia law, inasmuch as the defendant specifically rejected optional no-fault coverages in his insurance application; that however, the defendant allegedly sustained various personal injuries as a result of an automobile collision in June of 1980; and that he is now seeking to tender an additional premium for the optional no-fault benefits on the ground that he was not given the requisite opportunity to reject such optional no-fault benefits.

The policy application in this case is in two pages. Each page is signed by the defendant at the bottom. The first page contains standard information concerning “Vehicle identification,” “Vehicle use,” “Limits on your coverage,” and “Driver information.” Under “Limits on your coverage,” there is provided $5,000 in no-fault coverage, but there is also a statement directing the applicant to complete the supplementary form. The second page, titled “Offer to Purchase Additional Coverage Application,” consists of Parts I, II, III and IV. Part I requires the applicant to specify if he does not want optional personal-injury-protection coverage, or, if he does want such coverage, whether he wants it in the amount of $10,000, $25,000, or $50,000. The defendant placed an X in the block at the left of the statement, “I do not want to purchase Optional Personal Injury Protection Coverage.” Part II concerns full collision coverage without deductible. The defendant put an X in the block at the left of the statement, “I do not want to purchase Full Coverage Collision.” Part III concerns full comprehensive coverage without deductible. In Part III, the defendant put an X in the' block at the left of the statement, “I do not want to purchase Full Coverage Comprehensive.” Part IV concerned loss-of-use coverage. As stated on the policy application, it provides reimbursement to the insured for transportation expense income not to exceed $10 per day or totaling more than $300 due to the loss of use of the motor vehicle. The defendant put an X in the block at the left of the statement, “I do not want to purchase Loss Of Use Coverage.” As previously stated, the defendant signed this page of the policy application at the bottom.

Decided April 4, 1984 — Rehearing denied April 24, 1984.

The superior court denied the defendant’s motion for partial summary judgment on the question of whether his rejection of optional no-fault benefits was in compliance with the requirements of Georgia law, ruling that the insurance company’s policy application met the requirements of OCGA § 33-34-5 (b) (Code Ann. § 56-3404b). On appeal, the Court of Appeals reversed, stating that in Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 711 (300 SE2d 673) (1983), this court held “ ‘that the 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.’ ” Nixon, 166 Ga. App. 38, supra, p. 39. We granted certiorari. We reverse.

As stated by Chief Justice Hill in his special concurrence to our dismissal of the writ of certiorari in Nalley v. Select Ins. Co., 251 Ga. 722, 723 (310 SE2d 918) (1983), “While in deciding Flewellen, we held that two signatures satisfied the statutory requirements, we did not hold that two signatures were mandatory in every case.” Here, as in Nalley, although the optional-coverage application has only one signature, it is clear from the form of the application that the intent of the insured was to reject optional PIP benefits and vehicle-damage protection. Therefore, we hold that, “the form is in substantial compliance with the statutory requirement, OCGA § 1-3-1 (c) (Code Ann. § 102-102), and satisfies the intent of the General Assembly 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.” ’ Flewellen, supra, 250 Ga. at 714.” (Emphasis in original.) Nalley v. Select Ins. Co., 251 Ga., supra, p. 724 (Hill, C. J., concurring specially).

Judgment reversed.

All the Justices concur, except Clarke, Smith and Gregory, JJ., who dissent. McCauley, Owen & Sweeney, H. Andrew Owen, Jr., for appellant. Charles A. Mullinax, for appellee.