Ryals v. Southeastern Fidelity Insurance
Ryals v. Southeastern Fidelity Insurance
Concurring Opinion
concurring specially.
While I concur in the judgment affirming the grant of summary judgment to appellee, I arrive at the result by different means. Even if appellants had affirmatively shown from the record that the policyholder, Brice, had tendered the premium in a manner sufficient to activate the optional benefits coverage of $45,000, I believe that appellants are precluded from recovery in excess of the maximum coverage, $5,000 basic PIP and $45,000 optional coverage. See OCGA § 33-34-5 (a).
My opinion is based upon both statute and case law. OCGA § 33-34-4 (c) provides: “The total benefits required to be paid under this Code section without regard to fault as the result of any one accident shall not exceed the sum of $5,000.00 per each individual covered as an insured person or such greater amount of coverage as has been purchased on an optional basis as provided in Code Section 33-34-5, regardless of the number of insurers providing such benefits or of the number of policies providing such coverage.” (Emphasis supplied.)
Moreover, although dictum in that case, I find the factual posture of this case to be analogous to the illustration presented in Situation 5 of Ga. Cas &c. Co. v. Waters, 146 Ga. App. 149 (246 SE2d 202) (1978). “A, covered by basic PIP and $45,000 additional PIP, is struck
Opinion of the Court
The appellee, Southeastern Fidelity Insurance Company, brought
The appellee concedes in its complaint that the application for each policy contained only one signature, contrary to the provisions of OCGA § 33-34-5 (b), as that statute existed prior to its amendment in 1982. Conceding that appellants were thus entitled to $45,000 in additional coverage under one of the two policies, the appellee tendered that amount into the registry of the court, and these funds have now been paid to the appellants and their attorney by order of the court. However, appellants contend that they are entitled to $45,000 in optional coverage under both policies.
The trial court granted appellee’s motion for summary judgment, declaring that the $45,000 paid to the appellants “represents all optional no-fault benefits to which the defendants are entitled under the policies issued . . ., the [appellee] having previously paid to the [appellants] $5,000 basic personal injury protection benefits under the Brice policy.” The court denied a motion by the appellant to strike an affidavit submitted by appellee’s senior vice-president in support of the motion for summary judgment. Both the grant of summary judgment and the denial of the motion to strike are enumerated as error on appeal. Held:
Pretermitting whether the motion to strike should have been granted, we agree that the appellee was entitled to summary judgment. In the recent case of Bailey v. Ga. Mut. Ins. Co., 168 Ga. App. 706, 708 (309 SE2d 870) (1983), we held “that a demand for increased coverage by the policyholder is necessary before those who would be incidental or third-party beneficiaries as ‘other insureds’ can seek optional benefits.” (Emphasis supplied.) The appellee asserted in its complaint that Brice did not request “that his policy be amended or
Judgment affirmed.
Reference
- Full Case Name
- RYALS v. SOUTHEASTERN FIDELITY INSURANCE COMPANY
- Cited By
- 1 case
- Status
- Published