Nationwide Mutual Insurance v. Gay

299 S.E.2d 611, 165 Ga. App. 293, 1983 Ga. App. LEXIS 1850
CourtCourt of Appeals of Georgia
DecidedJanuary 14, 1983
Docket64658
StatusPublished
Cited by5 cases

This text of 299 S.E.2d 611 (Nationwide Mutual Insurance v. Gay) 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.

Bluebook
Nationwide Mutual Insurance v. Gay, 299 S.E.2d 611, 165 Ga. App. 293, 1983 Ga. App. LEXIS 1850 (Ga. Ct. App. 1983).

Opinions

Shulman, Chief Judge.

Appellant raises a single question of law in this appeal: Is the personal representative of the estate of one spouse, who survived by one and one-half hours the automobile-related death of the other spouse, entitled to recover full survivor’s benefits under an automobile insurance policy providing $5,000 basic coverage and $45,000 optional coverage pursuant to the no-fault provisions of the Georgia Motor Vehicle Accident Reparations Act (Code Ann. Ch. 56-34B, Ga. L. 1974, p. 113 et seq.) (OCGA § 33-34-1 et seq.)? This appears to be a question of first impression. The trial court held in this declaratory judgment action that the personal representative/appellee may recover survivor’s benefits and, accordingly, denied the appellant’s motion for judgment on the [294]*294pleadings and granted appellee’s motion for summary judgment on this issue. Appellant enumerates as error the rulings on these motions and the court’s legal determination that appellee could recover survivor’s benefits.

The facts of this case relevant to the sole issue presented on appeal are undisputed. Appellee’s decedent, Carl Beebe, and his wife expired on August 22, 1980, as a result of injuries sustained in an automobile accident. Both were insured by appellant pursuant to a policy providing the maximum $50,000 personal injury protection (“PIP”) benefits under the Georgia No-Fault Act. Appellee’s decedent survived his spouse approximately one and one-half hours. They had no surviving children. The personal representative made timely application to appellant for PIP benefits, including survivor’s benefits up to the $50,000 policy limits. Appellant denied liability for the survivor’s benefits and filed this action seeking a judgment declaring its liability or non-liability on appellant’s claim for such benefits. Appellee answered and counterclaimed for an award of the unpaid benefits allegedly due.

1. Appellee initially attacks this appeal on the ground that it cannot be considered by this court due to the lack of a transcript of either hearing held by the trial court. This contention is wholly without merit, since the appeal presents a pure legal question properly framed by the pleadings and other matters contained in the record.

2. Appellee claims entitlement to survivor’s benefits, pursuant to Code Ann. §§ 56-3403b (b) (OCGA § 33-34-4) and 56-3404b (a)(2) (OCGA § 33-34-5), for disability benefits and expenses that would have been paid to Mrs. Beebe, pursuant to Code Ann. § 56-3403b (a)(2)(B) and (a)(2)(C), if she had survived. Appellant has refused to pay these benefits on the ground that no-fault survivor’s benefits are payable only to Mr. Beebe and are not payable to his estate subsequent to his death. Appellee does not argue that the personal representative of Mr. Beebe’s estate is among the class of persons who may receive no-fault survivor’s benefits. See Cannon v. Ga. Farm &c. Ins. Co., 240 Ga. 479 (241 SE2d 238). Rather, appellee’s claim is premised on the argument that Mr. Beebe was a surviving spouse within the contemplation of Code Ann. §§ 56-3403b (b) and 56-3404b (a)(2) and that his rights to full no-fault survivor’s benefits vested upon his wife’s demise, thus permitting the personal representative of his estate to recover all benefits to which Mr. Beebe would have been entitled.

Code Ann. § 56-3403b (b), which pertains to minimum no-fault coverage, provides: “In the event of the death of the injured person who is survived by a spouse or dependent child or children, [295]*295compensation under subparagraphs (a)(2)(B) and (a)(2)(C) of this Code section shall be payable after the death as though the deceased were alive but totally disabled, the payment to be made to the spouse, if alive, and otherwise to the child or children or the person having legal custody of any child or children for the use of the spouse or children as though awarded as a year’s support for the spouse or children, or both. Survivor’s benefits shall be payable at least monthly until exhausted.” Subsections (a) (2) (B) and (a) (2) (C) of this statute provide, respectively, for loss of earnings during disability and expenses for services from others normally performed by the insured. These are the only benefits that may survive the death of the insured. State Farm &c. Ins. Co. v. Five Transp. Co., 246 Ga. 447, 448 (fn. 5) (271 SE2d 844). Code Ann. § 56-3404b (a)(2), which pertains to optional no-fault coverage, contains language identical in substance to that of § 56-3403b (b). Code Ann. § 56-3404b (a) provides that payment of all no-fault benefits “must be made periodically on a monthly basis as expenses are incurred or, in the case of total disability, as disability continues.”

An analysis of the applicable provisions of the No-Fault Act fails to support appellee’s claim. It is clear that the class of persons who may receive no-fault survivor’s benefits is limited to spouses and children. Cannon v. Ga. Farm &c. Ins. Co., supra. It is also clear that the legislature, in its effort to provide “certain minimal insurance coverage for automobile accident victims” (Id., p. 482), determined that certain benefits should survive to assure certain minimal financial protection, “as though awarded as a year’s support” (Code Ann. §§ 56-3403b (b) and 56-3404b (a)(2)), for those “most likely to suffer financially from the death [of the insured].” Cannon, supra, p. 482. The statutes specifically state that payments are “to be made to the spouse, if alive, otherwise to the child or children . . . for use of such spouse or children . . .” (Emphasis supplied.) Code Ann. §§ 56-3403b (b) and 56-3404b (a)(2). The No-Fault Act, in addition to providing a certain and severely proscribed class of beneficiaries for survivor’s benefits, does not provide that a surviving spouse’s rights shall survive his or her own death. Nor does the Act state that the surviving spouse has a vested right to the limits of coverage under the policy immediately upon the death of the insured; on the contrary, the spouse is to receive periodic payments only if he or she is alive. Further, the Act contains no provision for lump sum payment.

Appellee places heavy reliance on the reference to “year’s support” in Code Ann. §§ 56-3403b (b) and 56-3404b (a)(2). Appellee argues that since a spouse’s right to year’s support survives her death (Smith v. Sanders, 208 Ga. 405 (67 SE2d 229)), the legislature intended no-fault survivor’s benefits to survive the surviving spouse [296]*296or child. However, we do not interpret the reference to “year’s support” in the No-fault Act as meaning that survivor’s benefits are to be treated as a year’s support award for all purposes. If this were the case, appellee’s claim would be barred by the fact that Mr. Beebe made no claim for benefits prior to his death. See Code Ann. § 113-1002. Unlike year’s support, there is no provision for lump sum payment of no-fault survivor’s benefits. We conclude that the reference to “year’s support” in Code Ann. §§ 56-3403b (b) and 56-3404b (a)(2) was intended by the legislature to illustrate further the nature and purpose of no-fault survivor’s benefits: to provide certain minimum financial protection for those “most likely to suffer financially from the death [of the insured].” Cannon, supra, p. 482.

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Nationwide Mutual Insurance v. Gay
299 S.E.2d 611 (Court of Appeals of Georgia, 1983)

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Bluebook (online)
299 S.E.2d 611, 165 Ga. App. 293, 1983 Ga. App. LEXIS 1850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mutual-insurance-v-gay-gactapp-1983.