Travelers Indemnity Co. v. Thomas

324 S.E.2d 735, 172 Ga. App. 816, 1984 Ga. App. LEXIS 2676
CourtCourt of Appeals of Georgia
DecidedNovember 13, 1984
Docket69041; 69045
StatusPublished
Cited by2 cases

This text of 324 S.E.2d 735 (Travelers Indemnity Co. v. Thomas) 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
Travelers Indemnity Co. v. Thomas, 324 S.E.2d 735, 172 Ga. App. 816, 1984 Ga. App. LEXIS 2676 (Ga. Ct. App. 1984).

Opinion

Deen, Presiding Judge.

The two cases appealed here involve the same parties and arise out of the same transaction or series of transactions. Appellant Travelers Indemnity Co. (Travelers), as a holding company of which appellant Phoenix Insurance Co. (Phoenix) is a subsidiary, filed an action (case no. 69041) seeking a declaratory judgment establishing the rights of the parties with respect to benefits due appellee Mrs. Pearl Thomas, widow of Phoenix’ insured who died as a result of an automobile accident; appellee Thomas brought an action (case no. 69045) against Phoenix, seeking payment of maximum Personal Injury Protection (PIP) benefits pursuant to Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980); and appellant Phoenix was added to the former action (case no. 69041) as a party plaintiff upon motion of Travelers. The two cases were treated as one in the trial court, and we consider them together on appeal.

The late Rev. Daniel Thomas and his wife, appellee here, first obtained automobile insurance with Phoenix in 1969, or prior to enactment of Georgia’s No-Fault Insurance law, OCGA § 33-34-1 et seq. The policy was renewed every six months. At all times the PIP coverage was $5,000, the basic or minimum amount available. On December 30, 1974, in response to a mailing from appellants, Rev. or Mrs. Thomas apparently executed a form indicating that they wished to reject the higher coverages offered and accept the basic $5,000. Although the election form bore Rev. Thomas’ name on the single signature line, there is some dispute as to whether it was actually signed by him or by his wife, or even by a third person. The form bears the notation, written in yet another hand (presumably that of an employee of the insurance agent), “Only wants basic PIP coverage.”

On March 11, 1982, four days before the policy was due for renewal, Thomas was injured in an automobile accident and died seven days later. In the meanwhile, on or about March 5, 1982, Travelers/ Phoenix’ home office in Hartford, Conn., prepared a mailing to all its automobile insurance policyholders offering the opportunity to update existing coverage by indicating acceptance or rejection of various optional coverages, including higher PIP coverages. This form had separate boxes to be checked for each coverage and contained two signature lines. The mailing took place on or about March 10, 1982, one day before Thomas’ fatal accident. Mrs. Pearl Thomas denied [817]*817that such a mailing was ever received and further denied that she had ever heard of optional no-fault coverages; the record, however, contains a form of the sort mailed on the above date which was taken from the insurance agent’s files and on which there appear checked boxes indicating rejection of all optional PIP coverages and acceptance of the basic $5,000. This form is dated March 15, 1982 (that is, during the time of Thomas’ hospitalization and three days before his death), and bears a signature purporting to be that of the Rev. Mr. Thomas. The form also contains a space for the insured to indicate the effective date of any optional coverages he may have elected; this space was left blank on this particular form.

On April 14, 1982, Mrs. Thomas’ attorney notified appellant Phoenix by letter that Rev. Thomas was electing the maximum PIP coverage under authority of Jones v. State Farm, supra, and its progeny, and was formally tendering the premiums for such coverage. When Phoenix declined to accept the tender or to pay the sums demanded, the actions noted above were instituted. Both parties moved for summary judgment, and the trial court initially denied both motions. Upon appellee’s renewal of her motion, however, the court reconsidered the evidence, granted summary judgment in favor of appellee Thomas, and dismissed appellants’ motion for summary judgment. Appellants enumerate as error the following: (1), (2), (3), the trial court’s holding as a matter of law that the March 15, 1982, rejection applied only prospectively and did not apply to a policy expiring on that date, and that the signature was unauthorized and therefore ineffective; (4) the trial court’s finding as a matter of fact that the Rev. Mr. Thomas was unconscious from March 12, 1982, until the date of his death on March 18, 1&82; (5) the trial court’s alleged abuse of discretion in allowing appellee to renew her motion for summary judgment on allegedly identical record and legal grounds; and (6) the court’s granting summary judgment to appellee and dismissing appellants’ motion for a declaratory judgment. Held:

1. Evidence was adduced in the court below that the original application form allegedly executed by Rev. Thomas in 1969 was systematically destroyed, along with similar old records, when Phoenix/ Travelers removed its place of business prior to 1982. An authorized official of appellants testified that the information contained on such original documents was routinely, in the ordinary course of business, transcribed in a permanent “History Journal” at a time almost simultaneous with the generation of such documents; that the originals thereby became merely duplicates of the entries in the History Journal; that they were therefore considered expendable and were done away with when the files were purged from time to time.

Mrs. Thomas contends that neither she nor her husband ever executed a written application prior to issuance of the original policy. [818]*818Mrs. Thomas further contends that both the December 30, 1974, and the March 15, 1982, forms were signed by someone other than either herself or her husband. There was testimony by personnel at the insurance agency, however, that Mrs. Thomas brought the latter form to the agent’s office some days after March 15, as well as testimony by a handwriting expert that the signature on the March 15, 1982, form bore no close resemblance to undisputed examples of Rev. Thomas’ handwriting but was similar in several significant respects to undisputed examples of Mrs. Thomas’ handwriting. Appellants contend that the 1982 form was signed by either Mrs. Thomas or her late husband and therefore is a valid election having retrospective as well as prospective effect.

Our scrutiny of the records of these cases reveals that the dispositive issues concern the supplemental application form of December 30, 1974, rather than that of March 15, 1982. Even assuming arguendo that the latter form was validly executed, we would not be authorized to hold that it applied to an injury which occurred both before the expiration date of an existing policy and before the date on which the supplemental form was purportedly executed. Therefore, the validity vel non of the 1982 form is not an issue which must be considered by the court, and appellants’ first four enumerations are without merit.

2. Contrary to appellants’ contention, the trial court may in its discretion consider a renewed motion for summary judgment even when there has been no expansion of the record. Southeastern Metal Prods. v. Horger, 166 Ga. App. 205 (303 SE2d 536) (1983). Appellants’ fifth enumeration is therefore without merit.

3. OCGA § 9-11-56

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324 S.E.2d 735, 172 Ga. App. 816, 1984 Ga. App. LEXIS 2676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-indemnity-co-v-thomas-gactapp-1984.