White v. Georgia Farm Bureau Mutual Insurance

Smith, Justice. Appellant, Omie White, sued appellee, Georgia Farm, to recover maximum optional personal injury protection (PIP) benefits under a no-fault insurance policy. We granted certiorari to consider the Court of Appeals’ reversal, in an unpublished opinion, of the trial court’s denial of the appellee’s motion for summary judgment. We reverse. The appellant’s husband purchased an automobile insurance policy from Georgia Farm in 1968. In 1974, Georgia Farm received a completed form that it had sent the appellant’s husband, upon which the appellant’s husband had rejected optional PIP coverage in excess of the statutory minimum. The form appeared to have been signed by the appellant’s husband. The appellant’s husband died in December 1975. The appellant applied to Georgia Farm for an insurance policy to cover a new car in Márch 1976. Georgia Farm issued a “continuous renewal policy” to the appellant. The policy number on the appellant’s husband’s policy carried over to the appellant’s policy. The continuous renewal policy listed the appellant, not her husband, as the insured, and it listed the new car as the insured vehicle. In October 1978, the appellant was injured in a car wreck. She sought maximum PIP benefits under Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983). When Georgia Farm denied those benefits, she filed this suit. 1. Our first question on certiorari is whether this case is controlled by Ga. Farm Bureau Mut. Ins. Co. v. Drexler, 254 Ga. 98 (326 SE2d 741) (1985). In Drexler, supra,1 one spouse acted in concert with the other spouse to change policy coverage from one to the other. Here, the appellant could not have acted in concert with her spouse in changing the policy since her spouse was deceased at the time of the policy change. We hold that an application for a policy by one spouse following the death of the other spouse constitutes an application for a new policy, notwithstanding an identical policy number. As such, OCGA § 33-34-5 (b) applied to the policy, and Georgia Farm should have presented the appellant with the opportunity to choose additional PIP coverage. The appellant’s claim for maximum PIP [299] benefits should thus have been honored. Flewellen, supra. Decided November 20, 1985 — Reconsideration denied December 19, 1985. Sutton & Reddick, Berrien L. Sutton, for appellant. Dillard & Landers, Bryant H. Bower, Jr., Terry A. Dillard, for appellee. 2. We need not reach the appellant’s remaining enumerations of error. Judgment reversed. All the Justices concur, except Marshall, P. J., and Weltner, J., who dissent. Footnotes [1] As well as in Cotton States Mut. Ins. Co. v. Lashley, 255 Ga. 71 (335 SE2d 855) (1985).