Butts v. Georgia Casualty & Surety Co.

348 S.E.2d 94, 179 Ga. App. 819, 1986 Ga. App. LEXIS 2041

• Court: Court of Appeals of Georgia
• Decided: July 3, 1986
• Docket: 72636
• Status: Published

Opinions

Birdsong, Presiding Judge.

The plaintiff, Roderick Butts, by and through his mother as next friend, Brenda Butts, appeals from the denial of her motion for summary judgment and the grant of summary judgment to the defendant, Georgia Casualty & Surety Co. Georgia Casualty issued an automobile insurance policy to Charlie Ingram, Sr., on February 22, 1977, which provided for the minimum personal injury protection in the amount of $5,000. While the policy was in full force and effect on June 30, 1977, the policyholder’s son, Charlie Ingram, Jr., was killed in an automobile accident in the insured vehicle. Georgia Casualty paid funeral and medical expenses of $1,599 to the deceased’s parents, the policyholder and his wife.

By letter dated November 21, 1984, plaintiff, the putative illegitimate son of Charlie Ingram, Jr., by and through his attorney, demanded that Georgia Casualty increase the aggregate personal injury protection amount from $5,000 to $50,000, tendered the additional premium, and made claim for $50,000 in lost wages, under the authority of Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623). Georgia Casualty denied the claim and plaintiffs filed this action. Both parties moved for summary judgment, and plaintiffs appeal the denial of their motion and the grant of defendant’s motion. Held:

The policyholder, Charlie Ingram, Sr., who is still alive, has never questioned the amount of insurance afforded by his policy and has never demanded that the personal injury protection be increased, nor has he tendered any additional premium for such increase. Our Supreme Court has held that “the intent of OCGA § 33-34-5 (c) (Code Ann. § 56-3404b) is to ensure that insurers offer optional coverages to applicants for no-fault insurance and that an applicant’s waiver of his privilege to obtain optional coverages be made knowingly and in writing.” (Emphasis partly in original.) Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 714 (300 SE2d 673). The court, in Bailey v. Ga. Mut. Ins. Co., 168 Ga. App. 706, 708 (309 SE2d 870), held that “the rationale of Jones, Flewellen, and [GEICO v.] Mooney [250 Ga. 760 (300 SE2d 799)] has efficacy only where there is a dispute between a policyholder and an insurer as to optional coverage. . . . [Therefore] 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.) Accord Dunham v. Grange Mut. Cas. Co., 176 Ga. App. 263, 265 (335 SE2d 666); Tompkins v. Aetna Cas. &c. Co., 174 Ga. App. 819 (331 SE2d 907); Occidental Fire &c. Co. v. Buyce, 173 Ga. App. 881, 882 (328 SE2d 574); Southeastern Fidelity Ins. Co. v. Timmons, 172 Ga. App. 366, 367 (323 SE2d 183); Dobbins v. Occidental Fire &c. Co., 171 Ga. App. 98 (319 SE2d 31).

The insurer produced a facsimile of the policyholder’s application in which he elected minimum PIP and rejected the other optional PIP selections. Such facsimile was admissible because the insurer had purged his record copy approximately five years after the file on this incident was closed as a routine business procedure of record keeping. Jefferson Pilot Fire &c. Co. v. Prickett, 176 Ga. App. 810 (338 SE2d 19). The policyholder has not contested the insurer’s claim that his selection of the minimum PIP was in accordance with the requisites of the Code. Accordingly, the claim of this alleged heir of the third-party beneficiary of the insurance contract is not legally cognizable. Bailey, supra at 709. The trial court did not err in denying plaintiffs’ motion for summary judgment and granting defendant’s motion.

Judgment affirmed.

Banke, C. J., and Sognier, J., concur.