Clark v. State Farm Mutual Insurance

Court of Appeals of Georgia

Clark v. State Farm Mutual Insurance

320 S.E.2d 380, 171 Ga. App. 554, 1984 Ga. App. LEXIS 2266

CourtCourt of Appeals of Georgia

DecidedJune 26, 1984

Docket68298

StatusPublished

Cited by2 cases

This text of 320 S.E.2d 380 (Clark v. State Farm Mutual Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Clark v. State Farm Mutual Insurance, 320 S.E.2d 380, 171 Ga. App. 554, 1984 Ga. App. LEXIS 2266 (Ga. Ct. App. 1984).

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Banke, Presiding Judge.

This is a suit by the appellant to recover for injuries allegedly sustained in a motor vehicle collision. Evidently because the damage initially appeared minor to her, she indicated to the investigating officer that she did not intend to pursue any claim against the other driver. The officer accordingly did not make a report of the accident, and for this reason, the name and whereabouts of the other driver are unknown. Thereafter, the appellant filed a John Doe action against the unknown motorist, pursuant to OCGA § 33-7-11 (d), and caused a copy to be served upon her motor vehicle insurance carrier. The trial court granted summary judgment to the insurer based upon the appellant’s failure to comply with the notice requirement of her insurance policy, and the appellant filed this appeal.

Under the uninsured motorist provisions of the policy, the insurer is obligated to pay for damage caused by a motor vehicle owner or operator whose identity cannot be ascertained. In order to recover under this provision, however, the policy requires that the “insured . . . shall have filed with the company within 30 days [after the collision] a statement under oath that the insured or his legal representative has a cause of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof . . .” The appellant contends that the appellee waived compliance with this sworn notice requirement by failing to respond to a letter written by her attorney six days after the accident, providing the date of the accident, several possible [555]*555tag numbers of the offending vehicle, and the name and phone number of the officer who investigated the accident. The letter concluded with the statement that PIP documentation would be forwarded to the insurer upon receipt. It is stipulated by the parties that the letter was received by the appellee. Held:

Decided June 26, 1984 Rehearing denied July 13, 1984 Robert S. Windholz, Jordan Lubin, for appellant. John F. Daugherty, Neal C. Scott, for appellees.

Provisions of an insurance policy which are included for the insurer’s benefit may be waived either expressly or impliedly by the company. Barnum v. Sentry Ins., 160 Ga. App. 213 (286 SE2d 445) (1981); Rogers v. American Nat. Ins. Co., 145 Ga. 570 (1) (89 SE 700) (1916). Whether the insurer has waived strict compliance with a notice provision is normally a question for a jury to determine. Accord Employees Assurance Society v. Bush, 105 Ga. App. 190 (123 SE2d 908) (1962). Consequently, we hold that the trial court erred in granting the appellee’s motion for summary judgment.

Judgment reversed.

Benham, J., concurs. Pope, J., concurs specially.

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Banke, Presiding Judge.

This is a suit by the appellant to recover for injuries allegedly sustained in a motor vehicle collision. Evidently because the damage initially appeared minor to her, she indicated to the investigating officer that she did not intend to pursue any claim against the other driver. The officer accordingly did not make a report of the accident, and for this reason, the name and whereabouts of the other driver are unknown. Thereafter, the appellant filed a John Doe action against the unknown motorist, pursuant to OCGA § 33-7-11 (d), and caused a copy to be served upon her motor vehicle insurance carrier. The trial court granted summary judgment to the insurer based upon the appellant’s failure to comply with the notice requirement of her insurance policy, and the appellant filed this appeal.

Under the uninsured motorist provisions of the policy, the insurer is obligated to pay for damage caused by a motor vehicle owner or operator whose identity cannot be ascertained. In order to recover under this provision, however, the policy requires that the “insured . . . shall have filed with the company within 30 days [after the collision] a statement under oath that the insured or his legal representative has a cause of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof . . .” The appellant contends that the appellee waived compliance with this sworn notice requirement by failing to respond to a letter written by her attorney six days after the accident, providing the date of the accident, several possible [555]*555tag numbers of the offending vehicle, and the name and phone number of the officer who investigated the accident. The letter concluded with the statement that PIP documentation would be forwarded to the insurer upon receipt. It is stipulated by the parties that the letter was received by the appellee. Held:

Decided June 26, 1984 Rehearing denied July 13, 1984 Robert S. Windholz, Jordan Lubin, for appellant. John F. Daugherty, Neal C. Scott, for appellees.

Provisions of an insurance policy which are included for the insurer’s benefit may be waived either expressly or impliedly by the company. Barnum v. Sentry Ins., 160 Ga. App. 213 (286 SE2d 445) (1981); Rogers v. American Nat. Ins. Co., 145 Ga. 570 (1) (89 SE 700) (1916). Whether the insurer has waived strict compliance with a notice provision is normally a question for a jury to determine. Accord Employees Assurance Society v. Bush, 105 Ga. App. 190 (123 SE2d 908) (1962). Consequently, we hold that the trial court erred in granting the appellee’s motion for summary judgment.

Judgment reversed.

Benham, J., concurs. Pope, J., concurs specially.

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320 S.E.2d 380, 171 Ga. App. 554, 1984 Ga. App. LEXIS 2266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-state-farm-mutual-insurance-gactapp-1984.

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