Dupree v. Georgia Mutual Insurance

Deen, Presiding Judge.

As a result of an automobile collision involving Ms. Ernestine Dupree’s car, she and three of her passengers were killed and four of her passengers were severely injured. Plaintiffs, who are the surviving passengers, the guardians of the surviving minor passengers, and the administrator of the estates of the deceased passengers, brought suit against defendant Georgia Mutual Insurance Company. Alleging that defendant had issued an automobile insurance policy to Ms. Dupree, plaintiffs sought to recover no-fault benefits under that policy and, in addition, damages pursuant to OCGA § 33-34-6 (b) and (c). Defendant answered, raising as a defense the cancellation of Ms. Dupree’s policy prior to the collision.

The case proceeded to trial before a jury. At the close of the evidence, defendant moved for a directed verdict as to its compliance with OCGA § 33-24-44 in notifying Ms. Dupree of her policy’s cancellation. See OCGA § 33-24-45 (d). The trial court granted defendant’s motion as to this issue. Cross-motions for a directed verdict were then made as to defendant’s compliance with former OCGA § 33-34-10 (a) in notifying the Department of Public Safety of the cancellation of Ms. Dupree’s policy. The trial court granted plaintiffs’ motion for a directed verdict as to this issue and held that, as the result of defendant’s failure to comply with former OCGA § 33-34-10 (a) (1), there was no effective cancellation of Ms. Dupree’s policy. Defendant then moved for a directed verdict as to its liability for damages pursuant to OCGA § 33-34-6 (b) and (c). The trial court granted defendant’s motion for a directed verdict as to this issue. As the result of these rulings, the trial court entered a judgment in favor of the plaintiffs, but only for contractual no-fault benefits under the insurance policy.

In Case No. 76595, plaintiffs appeal from the grant of defendant’s motion for a directed verdict pursuant to OCGA § 33-34-6 (b) and (c), and from the grant of directed verdict on the issue of notifying Ms. Dupree of the cancellation of the policy. In Case No. 76596, defendant cross-appeals from the grant of plaintiffs’ motion for a directed verdict with regard to construction of former OCGA § 33-34-10 (a). We will address the cross-appeal first.

Case No. 76596

1. In this case, the insurance policy was issued on October 18, 1984, to be effective through April 18, 1985. On January 3, 1985, the insurer mailed the insured a notice of cancellation, effective January 14, 1985. The insurer, however, did not notify the Georgia Department of Public Safety of the cancellation until February 1, 1985. In doing so, the insurer did not strictly comply with former OCGA § 33-34-10 (a) (1), which provided, in pertinent part, that “[t]he insurer, within five days after the effective date of a permitted cancellation of [no-fault] coverage, shall notify the Department of Public Safety in writing of the cancellation.”

Former OCGA § 33-34-10 (a) (1) did require “insurers to notify the Department of Public Safety before cancellation of no-fault automobile coverage can be effective. . . .” Georgia Farm Bureau Mut. Ins. Co. v. Phillips, 251 Ga. 244 (304 SE2d 725) (1983). However, an insurer’s failure to notify the Department of Public Safety within 5 days of the effective date of the cancellation would only result in the cancellation not being effective until such notification actually was made; it would not result in the total nullification of the insurer’s attempt to cancel the policy. The requirement of notifying the Department of Public Safety of a cancellation of an insurance policy obviously had no purpose of protecting the insured, but rather was intended to further the Department of Public Safety’s enforcement of the vehicle insurance laws. Accordingly, no persuasive reason exists for insisting upon strict compliance with the five-day notification requirement of former OCGA § 33-34-10 (a) (1).

The automobile collision underlying this action occurred on April 10, 1985. Because the cancellation of the insurance policy was effective upon the insurer’s notification to the Department of Public Safety on February 1, 1985, there was no coverage for the collision and the insurer was entitled to the directed verdict it sought.

Case No. 76595

2. Plaintiffs’ enumeration of error concerning the trial court’s grant of the insurer’s motion for a directed verdict as to its liability for statutory penalties, attorney fees, and punitive damages pursuant to OCGA § 33-34-6 (b) and (c) is rendered moot by our holding in Division 1.

3. Plaintiffs also contend that the trial court erred in its ruling that the insurer had complied with OCGA § 33-24-44 in notifying Ms. Dupree of the cancellation of the insurance policy. In this case, the insurer’s bulk mail clerk testified that she prepared a certificate of mailing for 370 notices of cancellation, one of which was addressed to Ms. Dupree. She then personally delivered to the postmaster the 370 pieces of mail along with the certificate of mailing and the P.O.R.S. list, and the post office certified receipt of the 370 pieces for bulk mailing. Under these uncontroverted circumstances, the notice of cancellation provisions of OCGA § 33-24-44 were satisfied, and the trial court properly directed verdict for the insurer on the issue. See Hill v. Allstate Ins. Co., 151 Ga. App. 542 (260 SE2d 370) (1979); State Farm &c. Ins. Co. v. Harris, 177 Ga. App. 826 (341 SE2d 472) (1986).

Judgment affirmed in Case No. 76595; judgment reversed in Case No. 76596.

Birdsong, C. J., Banke, P. J., Sognier, Pope, Ben-ham, and Beasley, JJ., concur. McMurray, P. J., and Carley, J., concur in part and dissent in part.