Johnson v. Southeastern Fidelity Insurance
Johnson v. Southeastern Fidelity Insurance
Opinion of the Court
Appellant Homer LeRoy Johnson brought this action seeking recovery of personal injury protection (PIP) benefits under separate motor vehicle liability insurance policies issued by appellees Southeastern Fidelity Insurance Company and Protective Insurance Company. Appellant’s complaint averred that on May 28, 1980 he suffered an accidental bodily injury arising out of the operation, maintenance or use of a motor vehicle owned by Cedartown-Atlanta Freight Lines, Inc., and incurred medical expenses and lost income or earnings in excess of $67,000. Appellant sought recovery of $5,000 basic PIP from Protective which had issued a policy to Cedartown-Atlanta, covering the tractor-trailer vehicle in which he was injured. He further sought recovery of $45,000 optional PIP from Southeastern, which had issued a personal policy to him. The complaint also sought recovery of penalty, attorney fees, and punitive damages against both appellees. Answers were filed by both appellees, each admitting the issuance of the insurance policies, but denying that appellant’s injury was compensable under the policies and asserting various other defenses. Following discovery, all parties moved for summary judgment. This appeal
The injury for which appellant seeks recompense from appellees is a heart attack he suffered allegedly as the result of pushing heavy freight while in the trailer attached to his employer’s truck in the course of unloading same. Although this incident occurred on May 28, 1980, written notice of appellant’s claim as to Protective was by virtue of a letter from appellant’s employer dated October 23, 1981; as to Southeastern, notice of appellant’s claim was given by letter from his attorney dated November 27, 1981. Appellant has filed no claim for workers’ compensation benefits.
1. We first turn to the issue of notice. The policies of both appellees provide as a condition precedent to coverage that written notice of an accident by or on behalf of an eligible insured be made “as soon as practicable.” Appellant acknowledges the relatively long delay in providing such notice to appellees here. However, he seeks to justify the delay based upon his lack of knowledge that the policies in question might afford coverage for his heart attack.
(a) As to Protective, appellant testified that after his heart attack he was told by his employer that it would take care of all insurance matters; he was not informed of the name of the insurance company providing coverage on the vehicle in which he suffered his heart attack. Further, he was often told by the company that it had no insurance on its vehicles. The company also told appellant that he was ineligible for workers’ compensation benefits as the result of his heart attack. He avers that once he found out he was not going to receive benefits of any kind, he contacted an attorney who then filed a claim on his behalf with Protective.
“As is true generally with regard to issues relating to reasonable
Protective also relies heavily on the holding in Flamm v. Doe, 167 Ga. App. 587 (307 SE2d 105) (1983), wherein an employee’s failure to comply with the 30-day notice provision of his employer’s uninsured motorist coverage resulted in summary judgment in favor of the insurer. This court affirmed the summary adjudication on the grounds that the employee seeking coverage under the policy was under a duty to inform himself of his responsibilities thereunder and also that the benefits sought did not involve compulsory insurance coverage. Since the coverage sought by appellant from Protective in the case at bar is the minimum no-fault coverage mandated by statute, OCGA § 33-34-4 (a), the circumstances here are distinguishable from those which form the basis of the holding in Flamm v. Doe, supra. Thus, we cannot say as a matter of law that notice was not given in the case at bar “as soon as practicable.”
(b) As to Southeastern, appellant testified that shortly after he got out of the hospital following his heart attack he spoke with the insurance agent through whom he had obtained the Southeastern pol
2. Appellees also both contend that appellant’s injury, i.e., his heart attack, is not compensable under the no-fault law. “Georgia’s Motor Vehicle Accident Reparations Act requires and restricts payment of no-fault insurance benefits in and to those instances specified in OCGA § 33-34-7 as the terms therein used are defined in the no-fault act, OCGA § 33-34-2.” Kelley v. Integon Indem. Corp., 253 Ga. 269, 274 (320 SE2d 526) (1984). In order to recover no-fault benefits, appellant must show that he suffered an “accidental bodily injury,” which is defined by OCGA § 33-34-2 (1) as “bodily injury, sickness, or disease . . . arising out of the operation, maintenance, or use of a motor vehicle which is accidental to the person claiming basic no-fault benefits. . . . Bodily injury is accidental as to the claimant unless sustained intentionally by the person injured or caused intentionally by the claimant.” A “motor vehicle” includes “a trailer drawn by or attached to such a vehicle.” OCGA § 33-34-2 (6). “Operation, maintenance, or use of a motor vehicle” includes “conduct in the course of loading or unloading the vehicle [if] the conduct occurs while occupying it.” OCGA § 33-34-2 (9).
As noted above, the injury for which appellant seeks recovery of no-fault benefits is a heart attack he suffered allegedly as the result of his pushing heavy freight in the trailer of his employer’s truck in the course of unloading it. There is expert witness testimony of record which both substantiates and refutes appellant’s claim of where and when his heart attack occurred and its cause. In light of the definitions cited above and construing the facts most strongly in favor of appellant as the non-moving party, we cannot say as a matter of law that appellant’s heart attack is not compensable under the no-fault law. Accord Franklin v. Southern Guaranty Ins. Co., 160 Ga. App. 279 (287 SE2d 274) (1981). It follows, also, that the trial court misplaced its reliance on Jones v. Continental Ins. Co., 169 Ga. App. 153 (312 SE2d 173) (1983), in concluding that the facts in the case at bar did not set forth an “insured event” under the no-fault law. In Jones the evidence clearly showed that the claimant was not “occupying” her vehicle at the time she was injured while unloading it.
3. Appellee Southeastern also attempts to bar appellant’s no-fault claim on the basis of a “Wholesale and Retail Delivery Endorsement” attached as a rider to appellant’s policy because of his employment as a truck driver. The endorsement provides as pertinent here: “In consideration of the premium charged, insurance is not afforded
4. Appellee Southeastern further argues that its application for insurance in this case was in substantial compliance with OCGA § 33-34- 5 (b) in effect in 1980 when the application was completed. Southeastern does not assert that OCGA § 33-34-5 (c) in effect at that time is applicable to this case. As best as we can determine due to the poor record quality of the reproduction of this application,
“In order for a document to be in substantial compliance with OCGA § 33-34-5 (b) in its pre-November 1, 1982 version, the form on its face should show the prospective insured, as a reasonable man or woman, the offered coverages and the action needed to accept or reject with such clarity so as not to require speculation as to whether there was a knowing election. In other words, does the form show that the applicant, as an ordinary reasonable man or woman, understood what was being offered and what choices he or she was making?” As
5. Finally, Southeastern argues that appellant is not entitled to any bad faith penalty, attorney fees or punitive damages under OCGA § 33-34-6 (b) and (c) as a matter of law. “Ordinarily, the question of good or bad faith is reserved for the jury, but where there is no evidence of a frivolous or unfounded reason to pay, or if the issue of liability is a close one, the court should disallow imposition of bad faith penalties. [Cit.]” Govt. Employees Ins. Co. v. Presley, 174 Ga. App. 562, 566 (330 SE2d 779) (1985). Applying this rule to the record here, we find no basis for the imposition of bad faith penalties and therefore affirm the trial court’s grant of summary judgment in this regard. See Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155 (1) (308 SE2d 382) (1983); Ga. Farm Bur. Mut. Ins. Co. v. Matthews, 149 Ga. App. 350 (2) (254 SE2d 413) (1979).
6. In light of our holding in Division 1, supra, that the issues in regard to notice are not susceptible to summary adjudication in this case, the trial court properly denied appellant’s motion for partial summary judgment against Southeastern. See First of Ga. Underwriters Co. v. Beck, supra at (4).
Judgment affirmed in part; reversed in part.
Appellant’s receipt of workers’ compensation benefits would not bar recovery of no-fault benefits from his employer or the recovery of no-fault benefits under a personal policy. See Brown v. Boston Old Colony Ins. Co., 247 Ga. 287 (275 SE2d 651) (1981).
We have utilized appellant’s 1981 application in reaching our conclusion here as it appears to be identical to the 1980 application and is cited in the record to us by Southeastern in its brief.
Dissenting Opinion
dissenting in part.
I would affirm the grant of summary judgment to Protective, the employer’s motor vehicle insurer, on the ground that claimant failed to give timely notice to the insurer. This is a different basis than the trial court’s reason, but the result is the same. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (307 SE2d 914) (1983).
It is undisputed that the first notice Protective had, written or otherwise, of the occurrence or of the claim, was the letter from claimant Johnson’s attorney nearly one-and-a-half years (17 months) after the heart attack. This conclusively exceeds the requirement that
Thus Johnson places the blame for the delay on his employer. But the insurer has no control whatsoever on what its insured tell? the latter’s employees with respect to coverage. The employer is not an agent of the insurer in this regard. The contract provisions govern, and as has been recognized, proper notice was a condition precedent to recovery. Bates v. Holyoke Mut. Ins. Co., 171 Ga. App. 164, 165 (318 SE2d 777) (1984), aff'd 253 Ga. 697 (324 SE2d 474) (1985). The law acknowledges that there is “a compelling need on the part of the insurer to receive timely notice of the events giving rise to a claim.” Flamm v. Doe, 167 Ga. App. 587, 588 (307 SE2d 105) (1983). Reliance on a third party’s statements about coverage should not be a legal factor to elasticize the “as soon as practicable” prerequisite until it elongates the period for notice so that the purpose of requiring timely notice is frustrated.
This is one of those situations where the issue of satisfactory compliance, normally one for the jury, is resolvable as a matter of law. See Bates v. Holyoke Mut. Ins. Co., 253 Ga. 697, supra; Golder v. U. S. Auto. Assn., 177 Ga. App. 194 (1) (338 SE2d 771) (1985). Here the claimant simply relied upon the say-so and action of a third party, rather than pursuing his claim. “The insured seeking to avail himself of the coverage afforded by the policy is under a duty to acquaint himself with his responsibilities thereunder.” Flamm v. Doe, supra at 588. Since it is incumbent on the insurer to investigate the circumstances giving rise to the claim, “which it may not be able to accomplish in the absence of timely notice,” Flamm, supra at 588, and the one who decided to make the claim has control over whether he wishes to pursue it and what he relies on in making that determination, I would not find that a jury question remains, based on the excuse for delay being reliance on the employer.
Whether this would give rise to a claim or claims against the employer arising out of the contractual relationship with the employee, is not a question to be addressed here. Before us is whether the claimant gave notice as soon as practicable to the risk-bearer.
I do believe there is a question of fact with respect to the notice
In all other respects, I agree with my brethren. I am authorized to state that Presiding Judge Deen, Presiding Judge Birdsong and Judge Sognier join in this dissent.
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