Virginia Mutual Insurance v. Hayes

McMurray, Presiding Judge. On February 21,1977, plaintiff made his application for automobile insurance under the provisions of the Georgia automobile insurance plan (assigned risk plan). Along with liability protection plaintiff accepted comprehensive coverage and protection against uninsured motorists. At the time of his application plaintiff made a deposit of a portion of the premium anticipated on the insurance policy. Plaintiffs policy was [757] assigned to defendant, and plaintiff was billed for a further installment payment on the premium and a policy issued in his name. On March 17,1977, plaintiffs automobile was stolen. Plaintiff notified defendant of the loss, and defendant refused to pay the claim, contending that the policy was void ab initio due to plaintiffs failure to disclose pertinent information in his written application for the insurance. Plaintiff brought this action demanding payment under the policy of insurance. Plaintiffs motion for summary judgment was granted and defendant appeals, contending that the insurance policy should be declared void ab initio due to misrepresentation by plaintiff in the application for insurance. Held: 1. The Georgia automobile insurance plan is regulated by rules promulgated by the Insurance Department of the Office of the Comptroller General of the State of Georgia. In accordance with Code Ann. § 3A-124 (Ga. L. 1967, p. 618) the contents of these rules are not filed with or published by the Secretary of State in the Official Compilation of the Rules and Regulations of the State of Georgia, but the names and designations of the rules are filed. These regulations are on file in the office of the Comptroller General and open for public examination and copying pursuant to Code Ann. § 3A-124, supra. 2. Defendant contends that due to material misrepresentations contained in the plaintiffs application for insurance, the trial court erred in granting summary judgment in favor of plaintiff. Contained in the application for insurance is plaintiffs statement to the effect that he held a valid driver’s license. In fact, plaintiffs driver’s license had been suspended at the time of application for insurance through the date plaintiffs automobile was stolen. Regulation 120-2 — 14.09 (3) provides "[a]n applicant shall not be entitled to insurance nor shall any subscriber [insurance company] be required to afford or continue insurance under the following circumstances: (a) If any person who usually drives a motor vehicle does not hold ... an operator’s license.” Because of this regulation the defendant insurance company in this case, unlike the insurance company in State Farm &c. Ins. Co. v. Reese, 116 Ga. App. 59, 60-61 (2, [758] 3) (156 SE2d 529), was not compelled to provide insurance to plaintiff. Although the uncontroverted evidence as to the motion for summary judgment is that plaintiff had no knowledge of the suspension of his driver’s license, this misrepresentation, if determined by the jury to be material, would be a sufficient basis for declaring the policy void ab initio. United Family Life Ins. Co. v. Shirley, 242 Ga. 235 (248 SE2d 635). Argued January 8,1979 Decided June 28, 1979 Rehearing denied July 16, 1979 Fulcher, Hagler, Harper & Reed, James Walker Harper, Duncan D. Wheale, for appellant. Allen W. Johnson, for appellee. Judgment reversed. Been, C. J., Smith, Banke and Underwood, JJ., concur. Carley, J., concurs specially. Quillian, P. J., and Birdsong, J., dissent in part. Shulman, J., not participating.