Rutherford v. Government Employees Insurance

Court of Appeals of Georgia

Rutherford v. Government Employees Insurance

353 S.E.2d 5, 181 Ga. App. 477, 1987 Ga. App. LEXIS 1450

CourtCourt of Appeals of Georgia

DecidedJanuary 7, 1987

Docket73284

StatusPublished

Cited by2 cases

This text of 353 S.E.2d 5 (Rutherford v. Government Employees 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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Rutherford v. Government Employees Insurance, 353 S.E.2d 5, 181 Ga. App. 477, 1987 Ga. App. LEXIS 1450 (Ga. Ct. App. 1987).

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Opinion

Sognier, Judge.

Toxey E. and Mable Rutherford were insureds of Government Employees Insurance Company (GEICO) prior to the adoption of the [478]*478Georgia Motor Vehicle Accident Reparations Act (“No-Fault” Act, OCGA § 33-34-1 et seq.). Thereafter, they renewed their policy annually, purchasing minimum coverage. In 1981 they were involved in an automobile accident and their claim was timely paid by GEICO up to the limits of the policy. The Rutherfords brought suit against GEICO for optional PIP benefits. The trial court granted summary judgment in favor of GEICO and the Rutherfords appeal.

Decided January 7, 1987. G. Michael Agnew, for appellants. Ronald W. Self, Daryl J. Morton, for appellee.

Appellants contend the trial court erred by granting judgment to appellee as a matter of law because appellee failed to establish with specificity that a mailing which offered optional coverage was actually accomplished, or that it was sent to appellants. Contrary to appellants’ argument, we find that the facts in this case are indistinguishable from those in Allstate Ins. Co. v. Stafford, 166 Ga. App. 599 (305 SE2d 163) (1983), aff’d Stafford v. Allstate Ins. Co., 252 Ga. 38 (311 SE2d 437) (1984). In both cases, in support of its motion for summary judgment, the insurer presented affidavits and depositions of employees who did not themselves mail any notices but who supervised mass mailings of notices offering optional coverage to all existing policyholders, as required by OCGA § 33-34-5 (c). Neither in Stafford, supra, nor in the case sub judice was the alleged mailing to the particular insured corroborated specifically by postal receipts or by reference to computer printouts. In both cases, the insured presented affidavits which denied receipt of any notices.

On those facts the Supreme Court held that the evidence presented was sufficient to show “proper mailing of an adequate document. Actual receipt is not required and . . . evidence of nonreceipt is not evidence of failure to mail. It was proper for the trial court to grant summary judgment to the insurer.” Stafford, supra at 39 (1). We, therefore, find no error in the trial court’s grant of summary judgment to appellee. Id.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.

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Sognier, Judge.

Toxey E. and Mable Rutherford were insureds of Government Employees Insurance Company (GEICO) prior to the adoption of the [478]*478Georgia Motor Vehicle Accident Reparations Act (“No-Fault” Act, OCGA § 33-34-1 et seq.). Thereafter, they renewed their policy annually, purchasing minimum coverage. In 1981 they were involved in an automobile accident and their claim was timely paid by GEICO up to the limits of the policy. The Rutherfords brought suit against GEICO for optional PIP benefits. The trial court granted summary judgment in favor of GEICO and the Rutherfords appeal.

Decided January 7, 1987. G. Michael Agnew, for appellants. Ronald W. Self, Daryl J. Morton, for appellee.

Appellants contend the trial court erred by granting judgment to appellee as a matter of law because appellee failed to establish with specificity that a mailing which offered optional coverage was actually accomplished, or that it was sent to appellants. Contrary to appellants’ argument, we find that the facts in this case are indistinguishable from those in Allstate Ins. Co. v. Stafford, 166 Ga. App. 599 (305 SE2d 163) (1983), aff’d Stafford v. Allstate Ins. Co., 252 Ga. 38 (311 SE2d 437) (1984). In both cases, in support of its motion for summary judgment, the insurer presented affidavits and depositions of employees who did not themselves mail any notices but who supervised mass mailings of notices offering optional coverage to all existing policyholders, as required by OCGA § 33-34-5 (c). Neither in Stafford, supra, nor in the case sub judice was the alleged mailing to the particular insured corroborated specifically by postal receipts or by reference to computer printouts. In both cases, the insured presented affidavits which denied receipt of any notices.

On those facts the Supreme Court held that the evidence presented was sufficient to show “proper mailing of an adequate document. Actual receipt is not required and . . . evidence of nonreceipt is not evidence of failure to mail. It was proper for the trial court to grant summary judgment to the insurer.” Stafford, supra at 39 (1). We, therefore, find no error in the trial court’s grant of summary judgment to appellee. Id.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.

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353 S.E.2d 5, 181 Ga. App. 477, 1987 Ga. App. LEXIS 1450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rutherford-v-government-employees-insurance-gactapp-1987.

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