Ryals v. Southeastern Fidelity Insurance

Banke, Presiding Judge. The appellee, Southeastern Fidelity Insurance Company, brought [429] this action for declaratory judgment against the appellants, Stephen and Mari-Lucinda Ryals, seeking to determine its liability to them under the personal injury protection (PIP) provisions of two automobile insurance policies. Mrs. Ryals was injured while a passenger in a vehicle owned and operated by Henry Brice III. The Brice vehicle was covered by a policy of insurance issued by the appellee. Mrs. Ryals was also insured by the appellee under the terms of a separate policy issued to her husband, Stephen. Both policies provided basic PIP coverage in the minimum amount of $5,000, which was inadequate to cover the amount of lost earnings and medical expenses suffered by Mrs. Ryals. The appellee paid Mrs. Ryals the $5,000 in basic PIP coverage provided by the Brice policy, and the appellants then sought to elect an additional $45,000 in “optional” PIP coverage under each policy. See generally GEICO v. Mooney, 250 Ga. 760 (300 SE2d 799) (1983), and Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983). Toward this end, their attorney forwarded separate checks to the appellee to cover the additional premiums for the optional coverage on each policy. 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 [430] endorsed to add optional no-fault benefits, nor has he tendered premiums to the [appellee] in payment of such benefits.” In response to this allegation, the appellants stated in their answer that the additional premium was tendered by Mrs. Ryals, and it appears without dispute from the record that the appellants’ attorney sent in the optional premiums on both policies. There is no suggestion in the record, nor do appellants argue, that their attorney also represents Brice. It follows that the appellant was not entitled to optional benefits under the Brice policy. We reject the appellants’ argument that, having accepted payment of the additional premium from their attorney, the appellee is now estopped to deny coverage under the Brice policy, for there is absolutely no indication in the record that the appellants acted to their detriment in reliance upon such conduct by the appellee. See generally OCGA § 24-4-24. Compare Ga. Cas. & Surety Co. v. Rainwater, 132 Ga. App. 170 (207 SE2d 610) (1974). Decided February 9, 1984 Rehearing denied June 29, 1984 Jack J. Helms, Willis H. Blacknall III, for appellants. F. Thomas Young, William A. Turner, for appellee. Judgment affirmed. Birdsong, J., concurs. Pope, J., concurs specially.