*1 709 (a) (4) in OCGA 40-6-392 view, Assembly, enacting the General phrase in the 68A-902.1), the word “arrest” Ann. did not use instantaneous, sense that legal technical time of arrest” “at the Amendment cases. an “arrest” Fourth have come to understand Reid, 247 445 State v. Ga. E.g., in a view, Assembly the word “arrest” my the General used Thus, I the intent sense, “custody.” as understand meaning
broader (a) (4) (Code Assembly enacting of the General be advised 68A-902.1), the defendant-motorist was that to the time custody, prior of the original the time or refuse undergo decide whether defendant-motorist must test, to an additional right that he or she has the state-administered test. certified my answers to the two respectfully
I submit (see above) with full defendant-motorist questions provide the or undergo as to whether to opportunity intelligent to make an choice of the test, with the common sense intent comport refuse the state line those Assembly, provide dividing a clear between General test is admissible in which the result of the state-administered cases (or undergo refusal to inadmissible the fact of the defendant’s inadmissible). majority’s Unfortunately, is admissible or test reasons, I For these require case-by-case determination. answers and therefore dissent. agree given with the answers cannot joins Marshall Presiding I to state that Justice am authorized this dissent. COMPANY. ATLANTA CASUALTY
39426. FLEWELLEN v. COMPANY. DYKE INSURANCE 39427. VAN v. ALLSTATE Justice. Clarke, cases to these granted this court certiorari
On its own motion (formerly 33-34-5 interpretation of OCGA the issue of the address in this Appeals litigation, the Court of Code 166) Flewellen, 885 App. Co. v. Atlanta Cas. in Jones decision (1982) prior of its overruling and that court’s (274 SE2d 230 Ins. Farm Mut. Auto. State Appeals Court of (1980), interpreted the same statute.1 held Dyke and and Mrs. Van of Mrs. Flewellen consolidated the cases prior interpretation as it existed require of the statute an These cases 1982, p. in Ga. amendment respective each case the complied insurers had with the intent of OCGA governing optional benefits. We disagree statutory construction of the Court of and reverse the judgment Flewellen, case no. 39426. For reasons opinion, set forth judgment Dyke, of the trial court in Van case no. affirmed *2 the Court of is by also affirmed this court. begin
These cases basically simple dispute: are the $5,000 insureds $50,000 entitled to personal injury for protection under the terms of their no-fault automobile insurance policies. Upon review arguments of the of the parties question the quick takes a turn toward issues of complexity. considerable The insurers contend the statute fails to meet constitutional standards because of vagueness. They also assert that the insureds made valid rejections $5,000. of the coverage Additionally, above they fail, contend that even if both arguments of these the insureds these cases are not entitled to the benefits of Appeals’ the Court of holding in Jones because it should not given retroactive effect and because there was an accord and satisfaction or release.
We will by treat the issues involved the dividing case into four divisions. divisions will interpretation deal with of the statute contracts, to these constitutionality statute, retroactivity and accord and satisfaction.
1. Central to the resolution of these cases is the meaning of the (Code OCGA 33-34-5 Ann. and more § § specifically (b). the language of subsection Much has been said and written on the words of this sentence but we cite again once subsection entirety its purposes of explanation. “Each application for a policy of motor vehicle liability insurance sold in this state must contain separate spaces for the insured to indi- cate his acceptance or rejection of each of the optional coverages (a) listed in subsection of this Code section and no such shall be issued in this state unless these spaces completed signed by prospective (b) (Code insured.” OCGA 33-34-5 Ann. § 56-3404b).
Chapter 34 of the insurance title is Georgia Motor Vehicle Reparations Accident Act, (Code OCGA 33-34-1 56-3401b), Ann. more commonly referred to as “no-fault” insurance. The clear legislative intent of this chapter is require to all motor vehicle owners carry no-fault insurance and to mandate that certain losses will be cheaply and expeditiously repaid respect without to fault. The mandatory no-fault coverage imposed every motor vehicle owner is a $5,000 minimum of personal injury protection. OCGA § 56-3403b). The statute then proceeds to impose offer This upon every duty insurer certain appears (PIP) personal protection into two categories, injury is divided damage vehicle. The minimum which must property the motor $50,000, prospective be offered for is but the statute allows the $5,000 per person. less than This insured to reduce to not by writing signed. must be in policyholder reduction Therefore, policyholder both the face a minimum insurer and requirement. The offer and the insurer cannot less than $5,000. policyholder cannot less than accept point To this have directed our attention to OCGA 33-34-5 (a) (Code many is how question The immediate sign where must to effect policyholder times and order a re- an amount the minimum be offered duction to below which must the insurer. signature
Atlanta contends one at the end says is sufficient. Allstate its which contains one form signature PIP and adjacent options line to the relating signature line adjacent options property damage relating appropriate if the checked sufficient blocks are *3 applicant signature signed. and the are The Court of lines in appendices opinion showing its cases the attached these applications involved here and in Jones. unless Dyke coverage
Van contends there can be no reduction of every optional listed on the signature adjacent there is a amount application showing acceptance. or rejection either its plain the positions,
To resolve differences these we look (a) (Code Ann. words of the statute. 33-34-5 OCGA requires coverage the reject “written consent” to either or reduce (b) required offered. to be accompanied by a rejections acceptances mandates that or be signature, specifies optional and it to be those listed coverages the (a). PIP optional are and coverages subsection The listed there Co., See Ins. Ins. property damage. Auto-Owners Co. v. Safeco (266 175) (1981). 558, 561 requirements We hold of that the (b) acceptance are or by signatures, subsection satisfied two or rejection of PIP and another indicate The rejection application of vehicle Allstate damage Dyke by Van meets signed manner which was executed Casualty completed by requirements. The Atlanta these does not. Flewellen rejection binding next to the of a failure to make a
We turn effect this results no by or It has been the insurers that argued reduction. of on the argument of insurance all. This relies contract that says spaces statute which no will be issued unless the completed are and signed. $50,000
The insureds that offer argue coverage of is a offer continuing subject and the to reformation to include coverage after a tender premiums of additional for the agree parties. additional do coverage. We not with either of the The contract must be of light construed the statute. says $50,000 statute that PIP coverage is the least the insurer must (a) (Code 56-3404b). offer. OCGA 33-34-5 The statute also says by of only this offer be refused a signed writing. OCGA therefore, such $50,000
absence of rejection, policy, provides inception. from its right insured has the to demand and receive the benefit of coverage upon by tender insured such premium may additional due of filing proof be by injured party. loss unconstitutionally
2. It is that vague, contended the statute is process, violating due that “men of intelligence common must necessarily guess meaning application.” City at its and differ its as to 736, 738 Atlanta Southern R. We are unable to an ambiguity discern and hold that terms sufficiently definite and certain in meaning give proper guidance by to those bound its terms.
3. Atlanta
next contends
if this
court returns to
the multiple
signature
requirement
Jones,
only
should
prospectively under
test in
Chevron Oil v.
Huson,
349, 30
(1) Consider whether the decision be applied nonre- troactively law, established a new principle either over- precedent ruling past relied, litigants deciding an issue of first impression whose resolution clearly was not fore- shadowed.
(2) Balance of the merits and demerits in each *4 case looking to prior history of rule in question, effect, purpose its and retrospective whether operation would further or its op- retard eration.
(3) Weigh inequity imposed by for, retroactive application, if a produce decision could substantial if inequitable applied results retroactively, ample there is basis for avoiding injustice or hardship by a holding nonretroactivity. factor,
Under the first it is contended that a Jones was case of first impression and the result of the case was not “foreshadowed”
713 Sanders, 120 Ga. Co. v. Liberty in American Ins. holding due to 342) (1969) of uninsured dealing with App. provided there interpreted The Code section motorist ” “ Liberty American writing.’ reject ‘shall the insured end at the Sanders, signature held that a p. The court Ins. Co. v. requirement. Atlanta writing” “in satisfied the application of the issuing precedent when relied on this Casualty argues justifiably it by the signed in fact upon application an which policies based unpersuasive. argument We find this insured. than the different at issue here has
The Code section 56-3404b) a (a) (Code Ann. states 33-34-5 Sanders. OCGA § § insured “written consent” reduction must have the rejection or (b) legislature If the rejection. requires signing a and subsection (Code Ann. OCGA 33-34-5 drafting § in mind when had Sanders § requirements stronger ensure 56-3404b), clearly meant to then writing.” “in rejection than clear if the statute is is that even argument facet of this
Another
in Jones is
remedy as set forth
in multisignature
its
insured
after the
optional benefits
allows for
not. Jones
and the
argued
It has been
in an accident.
already been involved
has
violates
that if the
opinion
in its
Court of
states
policy
An insurance
is void.
the contract of insurance
the statute then
compliance
not
provision
or
contains
condition
“which
due to the
rendered invalid
this title shall not be
requirements
be construed
but shall
provision
condition or
noncomplying
provisions
would
conditions
in accordance with such
applied
in full
rider,
endorsement
been
policy,
had the
have
56-2418).
(Code Ann.
33-24-12
with the title.” OCGA
compliance
§
§
laws
with insurance
if
inconsistent
controls
is
The statute
Subsection states 56-3405b) (Code Ann. OCGA 33-34-3 complied is with. statute (Code while OCGA 33-34-5 makes it clear that in OCGA benefits, as those as well those benefits minimum benefits. required 33-34-4 construed shall be and 33-34-5 in Code sections 33-34-4 “Nothing more extensive policies providing the issuance of prohibit those Code sections.” coverage required the minimum than 56-3405b), (Emphasis supplied.) Code Sections requirements satisfy purporting “Policies that, states provision contain a and 33-34-5 shall *5 the notwithstanding policy, of the other terms and conditions of shall be at least as extensive as the minimum (c) (Code Ann. required.” (Emphasis supplied.) OCGA 33-34-3 (c) (Code 56-3404b). See also OCGA 33-34-5 factor, in dealing agree with the second with the court Jones that the intent of OCGA 33-34-5 is to optional coverages applicants ensure “that insurers offer applicant’s no-fault insurance and that an waiver of his privilege Jones, in optional coverages knowingly writing.” obtain be made p. purpose 232. The of the statute is to resolve conflicts which arise an he statutory when insured contends that was not informed of his made, optional this right benefits. When claim is the resolution of policy will be to if issue look to the to determine there was rejection reduction or of those benefits in conformance with the statutory scheme. optional required statutory coverages as a minimum must policy. remedy
thus be read into the We will not as a read in the missing signed consent of the insured as it is the insurer who has legal duty. violated its factor,
In weighing equities required by the third we do require not that to agree post-accident coverage results substantial injustice. This follows from the finding holding that mandate of purpose the law was clear and the obvious of making the insured aware of the absolute to minimum benefits. There right prior no approval of the Atlanta forms. The law had been in 1975, 1974, 113, p. proceeded effect since and the insurer at its in failing comply own risk with the statute when issuing in 1979.
The insurer also contends
the court erred in
Jones
allowing
post-risk
reformation of the contract
to result
They
argue
first
if
the contract
is issued
violation of the
statute the contract
is void and that a void contract cannot be
Resources,
(249
reformed. See Patterson v. Professional
contract,
longer
is no
effect it
not be reformed because under
continuing
theory
offer
no contract
is formed until
offer
Therefore,
accepted.
they
if
argue that Mrs. Flewellen made an
the contract
is formed at that time and does not
relate back to the time of the accident. See
Prior v. Hilton &
generally
559)
Co.,
(1913);
Dodge
SE
Lumber
Ga. 117
Lunsford
Electric Paint
&c.
4. Mrs. Flewellen signed general a release in her settlement with the tortfeasor. We hold that full release to for all others tort claims pled cannot be as a by defense the insured’s own insurer where the insurer has statutory duty violated a to the insured under OCGA
(b) Each of the nine drafts from payment Atlanta PIP benefits contained the following language: release “Endorsement of this draft claims, constitutes a release of all known unknown, the undersigned may has or have against payor any persons other and all arising claims out of the any account of loss referred to on the face (Emphasis hereof.” supplied.) Each was by endorsed the insured. On the face of each draft appears there a description of the PIP benefits covered that draft. The ninth draft states on its face that it is PIP for “Final lost income benefit.” only PIP claim of Mrs. arguably Flewellen which was released full language is her claim for lost income over $5,000. Her complaint alleges that she has incurred expenses medical $30,000. of over None of the drafts description contains on its face a payment final or total for medical benefits.
We hold that the release language on the drafts does not release the claim for PIP additional benefits even as to the loss of income. Payment of these PIP benefits is of course made of fault. regardless There dispute was no as to the nature of Mrs. injuries Flewellen’s nor money as to the owed her under her contract of insurance. Matthews v. Gulf Life Ins. (1940), the paid insurer the face policy amount of a life insurance “ took a receipt which payment stated that the was ‘in full satisfaction and final settlement of all existing claims and demands under the ” policy.’ Matthews, within p. at 113. The court held this did not bar a claim double-indemnity benefits because only the insurer paid out what “A admittedly receipt was due. [paid] marked in full for all arising claims under an insurance may pleaded full, not be as an accord and it satisfaction where appears further actually that the sum paid was an amount which the already had company owing ready admitted and stood pay discharge the contract other than those are the which Matthews recovery (1), sought.” basis it p. Additionally, has party been held that “Where more a receives no than the amount legally and where existing owed at that time there is no dispute parties, between the then the absence of additional consideration disputed account], as settlement of a purported causes the [such Barrett, Stamsen v. fail, being release it a pactum.” nudum App. 156, 159
This is not a case payment where an insurer has made settlement of a dispute as to entitlement of the injured party recover nor was there a dispute recovery as to how much of a warranted. Casualty merely paid Atlanta what admitted was owed to Mrs. Flewellen. Under case, the circumstances of this hold release is not effective to protect liability the insurer from additional under optional owed the no-fault provisions. benefit
Having found Mrs. Flewellen now entitled to enforce clause, benefits we reverse the judgment of the Court of Appeals and hold the trial court was in granting correct summary judgment to Mrs. Flewellen on this issue. Because of our *7 1, holding in Division Court of judgment Dyke as to Van is affirmed.
Judgment Judgment reversed in Case No. 39426. affirmed Gregory Judge Hill, J., Smith, Case No. C. Bell, JJ., 39427. and Fryer, Marshall, J., Joel J. Weltner, J., concur. P. dissents. disqualified. — 3, Decided March
Rehearing 23, denied in case no. 39426 March Beauchamp, Keenan, & Hedrick Hedrick, William H. for appellant (case 39426). no. Van, Sanders,
Alexander & William C. for appellee. Mullininx, Owen J. (case appellant for 39427). no. Clay Carlock, Porter, Thomas S. Kent, R. Martin appellee. Conley Ingram, Lyall, Persons, G. Oscar N. Vickie Cheek N. Gary Bentley, Montet, Seacrest, Forrest L. Thomas S. Edwin A. Timothy Sweeney, Tate, Terrell, M. Owen, Karl H. Andrew J. Eugene Harper, Partain, Travis, G. M. Robert D. Thomas William Spearman, Rogers, Jackson, Lewis Butler, Jr., James G. R. John E. James Allgood, Estes, Keenan,
Alfred Andrew W. C. Don Sizemore, Jr., Stone, Lamar W. William Carlton, S. Milton A. J. Edenfield, Franklin amici curiae. Justice, Chief concurring.
Hill, I concur in the opinion judgment majority commend its author and the other members of the working court for tirelessly expedite this decision to assist the bench and bar “ Jones v. Darroch, cases such as these. See & resolution Gloser State Farm: An Expensive Lesson,” (1982); 18 Ga. State Bar J. 180 Butler, “Jones v. State Farm: Perspective,” Insured’s State Bar J. 45
I write to acknowledge special Justice Clarke’s effort and to add view, In my observation. Assembly intent of the General (b) enacting paragraph 56-3404b), of OCGA as noted in the majority opinion, patently becomes clear when paragraph as originally enacted is read in paragraph context with (a) originally 113, pp. 117-118, enacted. Ga. Laws read as follows: Optional
“Section 4. Each insurer shall also make coverage, available on an basis the following coverage:
“(1) an aggregate limit of benefits payable regard without up fifty fault ($50,000) thousand dollars per person rejected, or reduced to not less than an limit aggregate of benefits payable regard without ($5,000) fault of five thousand per dollars person, by written consent of the policyholder. purchased Benefits ($5,000) excess of five paid thousand dollars shall be without apportionment any expenses (b); to cover enumerated Section 3
“(2) compensation, fault, regard without damage insured motor vehicle not to exceed the actual cash value of the loss, ($10) vehicle at the time of the including up per day to ten dollars ($300) with a maximum of three hundred dollars for the loss of use vehicle; of such provided motor payable that benefits under this (2) may be subject to deductibles at the written election paragraph the policyholder.
“(b) Each for a liability of motor vehicle *8 insurance sold in separate spaces this State must contain for the of each of the insured to indicate his (a) coverages listed subsection above and no such shall be issued spaces completed State unless these and signed the prospective insured.” (Emphasis supplied.) view,
In my the General Assembly’s paragraph amendment of (Ga. 1202,1206-1207) pp. 1975 change did not the clear meaning paragraph originally enacted and as to PIP property damage. Justice, dissenting. Presiding Marshall, majority for the reasons stated dissent respectfully I must Flewellen, Atlanta Cas. Co. 164 Ga. Appeals. opinion of the Court App. STONE v. THE STATE. Justice.
Gregory, defendant, The collision, who was in an involved automobile was of driving alcohol, convicted under the influence of vehicular driving homicide and on the side wrong of the road. On appeal alia, he alleged, inter he that had been his right denied cross-examination when trial court restricted his cross- examination of one of the State’s witnesses to matters elicited on Appeals affirmed, direct examination. Court The concluding it was within the trial court’s discretion scope to restrict this manner. Stone v. defendant’s cross-examination of the witness State, granted We certiorari may to determine whether a defendant cross-examine a witness for upon subject the State matter other than that for which the State called the witness. record this case shows that Dr. the State called Jesus
Hiromoto, death, the physician prior who the victim attended to his testify the cause of the victim’s death. On direct Dr. examination upon Hiromoto testified to the victim’s condition arrival at the hospital, the cause victim’s death and the hospital efforts of the staff to resuscitate the victim. On cross-examination defense counsel attempted to witness about the defendant’s condition when ask he brought was hospital. objected State to this line questioning ground that defendant “was limited on cross-examination to the issue covered direct examination.” The attorney district suggested that the defendant make the witness his proceed own and questions these on direct examination. responded: Defense counsel “I subpoenaed believe [the witness] testify the case of the State against Leonard Stone and further information that he very has well be gone into on course, ... cross-examination Of I procuring don’t mind on direct examination.” The trial court then ruled that [information] “any questions other than what has . testified to . . [the witness] would have to be done in direct I you examination ... would allow