Stafford v. Allstate Insurance

Gregory, Justice.

Certiorari was granted to consider the opinion of the Court of Appeals in Allstate Ins. Co. v. Stafford, 166 Ga. App. 599 (305 SE2d 163) (1983). The trial court denied Allstate’s motion for summary judgment. The Court of Appeals reversed, and we affirm the Court of Appeals.

The Staffords, husband and wife, are insureds under a policy of automobile insurance issued by Allstate effective September 23, 1973. This was prior to the effective date of the Georgia Motor Vehicle Accident Reparations Act (No-Fault). Ga. L. 1974, p. 113. The Staffords were injured in an automobile collision on June 12, 1978. The issue to be decided is the amount of no-fault insurance coverage the Staffords are entitled to under the policy. They contend coverage is $50,000 for personal injury protection under the provisions of OCGA § 33-34-5(c) (Code Ann. § 56-3404b). Allstate contends coverage is limited to $5,000.

In the trial court Allstate offered evidence in the form of the affidavit of the Service Division Manager of the company who supervised mailing of no-fault notices in February of 1975. He averred that the company, through his supervision, mailed a notice to all named insureds at the address shown in the policy by first class mail. The notice included a letter explaining the options available under no-fault coverages and a “Georgia No-Fault Optional Coverages” chart on the back of which a “Selection Form” was provided. Copies of the coverages chart and the selection form are shown in Appendix A to this opinion. The Staffords filed counter-affidavits denying receipt of the notice.

1. The Court of Appeals relied on its decision in Wiard v. Phoenix Ins. Co., 166 Ga. App. 47 (303 SE2d 161) (1983). There the court analyzed OCGA § 33-34-5(c) (Code Ann. § 56-3404b) and held that an insurer had met its obligation to give the insured an “opportunity to accept or reject, in writing, the optional coverages” by making the following showing: “(1) [T]hat written notice of the optional coverages (2) bearing prepaid first-class postage and (3) directed to the insured at the address stated in the policy (4) was deposited in the United States mail.” 166 Ga. App. at 49. We granted certiorari in Wiard, supra, and reversed, not because we differed with the Court of Appeals’ analysis of the four-part mailing procedure, but because we found the document mailed to the insured to be inadequate. Wiard v. Phoenix Ins. Co., 251 Ga. 698 (310 SE2d 221) (1983). We held such a document must contain “(1) written information clearly stating the optional no-fault PIP coverage and the optional no-fault vehicle damage coverage, and (2) a means for the insured to make a written acceptance or rejection of each. Signatures, though acceptable, are not required. Mere blocks to be checked are sufficient.” Id. p. 700. In the documents Allstate mailed the Staffords the optional coverages are set forth and provision made for selection by checking appropriate blocks. A blank space for the insured’s signature is given at the bottom of the selection form. We hold the documents mailed to the Staffords meet the criteria of our decision in Wiard, supra. We further hold that OCGA § 33-34-5(c) (Code Ann. § 56-3404b) does not require actual receipt by the insured but only the four-part mailing procedure set forth above. We find no conflict in the evidence as to the issue of whether the insured was given an “opportunity to accept or reject, in writing, the optional coverages” as required by the statute. There is evidence of proper mailing of an adequate document. Actual receipt is not required and we hold that evidence of nonreceipt is not evidence of failure to mail. It was proper for the trial court to grant summary judgment to the insurer.

2. The Staffords contend it is a denial of equal protection under the United States Constitution for the legislature to require actual notice and opportunity for an insured in a new policy to accept or reject optional benefits as set out in OCGA § 33-34-5(b) (Code Ann. § 56-3404b) and interpreted in Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), but to merely require mailing of notice and opportunity to existing insureds under OCGA § 33-34-5(c) (Code Ann. § 56-3404b) as interpreted in Division One hereof. We note that, as to new insurance contracts, there is a necessity for contact by the applicant with the insurer. As to existing insureds, the insurer must make the contact. In the former situation the occasion for execution of a written application in the presence of the insurer is readily available. A conscious decision to acquire additional coverage at additional cost can be made. In the latter situation an opportunity for a personal contact by the insurer with the insured can at best only be invited by the insurer. We find the distinction between applicants for new policies and existing insureds a rational one in light of a legislative purpose to afford an opportunity for insureds to obtain optional coverages without imposing the coverage in the absence of a conscious choice. See Allrid v. Emory University, 249 Ga. 35, 38 (285 SE2d 521) (1982); L. Tribe, American Constitutional Law, § 16-2, p. 994 (1978).

Decided January 20, 1984. James K. Lange, for appellants. Dennis, Corry, Webb, Carlock & Williams, Thomas S. Carlock, R. Clay Porter, A. Martin Kent, R. Stephen Sims, for appellee. Roger F. fluff, John E. James, James E. Butler, Jr., Alfred L. Allgood, Andrew W. Estes, Don C. Keenan, Lamar W. Sizemore, Jr., William S. Stone, amici curiae.

3. The Staffords point out they made several appearances in the office of Allstate subsequent to the effective date of the no-fault statute and prior to the date of the automobile collision. They contend an offer of optional coverages should have been made during one of these visits. We do not find such a requirement in the statute. OCGA § 33-34-5(c) (Code Ann. § 56-3404b) applies to policies in existence on March 1, 1975. OCGA § 33-34-5(b) (Code Ann. § 56-3404b) applies to applications for policies beginning March 1, 1975. Each category of policies is governed by the respective requirements of the statute. Nowhere in the statute is there a requirement for an additional offer of optional coverages.

Judgment affirmed.

All the Justices concur, except Marshall, P. J., who concurs in the judgment only, and Smith, J., who dissents as to Division 1 and the judgment.

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