Appellant-plaintiff Gary Hamilton leased an automobile from appellee-defendant Advance Leasing & Rent-A-Car, Inc. (ALR), a corporation now owned by appellee-defendant Rivergate Corporation, Inc. (RCI). Hamilton’s wife, Christine, was injured when she totaled the car in a one-vehicle accident. Pursuant to a business automobile policy issued to ALR’s principal by Liberty Mutual Insurance Company, basic personal injury protection (PIP) and liability coverage were afforded to permissive users of the leased vehicle. Liberty Mutual paid Christine Hamilton $3,700 as amounts recoverable as basic PIP. The Hamiltons initiated the instant action against ALR and RCI alleging fraud and breach of contract for appellees’ failure to obtain liability insurance coverage for the Hamiltons which included optional PIP benefits. After discovery, ALR and RCI moved for summary judgment. This motion was granted by the trial court and the Hamiltons appeal.
1. Pursuant to the lease, Mr. Hamilton agreed to bear all risk of damage, loss, theft, or destruction of the leased vehicle, and to maintain insurance for comprehensive fire and theft; collision and upset; and automobile liability insurance. The lease also contained a provision whereby, in consideration for an additional monthly fee, appellee-lessor would “attempt to obtain [liability] insurance coverage, as follows ... (a) $15,000 B[odily] I[njury] per person/ $30,000 B[odily] I[njury] per accident or . . . (b) $10,000 [property damage] single limit.” A provision in subsequently executed monthly rental agreements stated that any coverage for public liability or property damage obtained by ALR for Hamilton was excess coverage over any other insurance and that it did not cover injuries to the lessee or his passen *849 ger. Mr. Hamilton paid an additional $30 a month to ALR and did not obtain any other automobile liability insurance policy on his own. Contrary to appellant’s assertions, by agreeing to “attempt to obtain” liability insurance on Mr. Hamilton’s behalf and by accepting his additional payments, appellee ALR did not thereby become an “insurer” within the meaning of former OCGA § 33-34-5 (a) (1), such that it would have had the statutory obligation to offer optional PIP coverage up to $50,000. Rather, ALR merely agreed to become the lessee’s agent to obtain for him the specified insurance coverages. Appellants’ contention that appellees breached a statutory duty to offer optional PIP is without merit.
Appellants nevertheless argue that this agreement to “attempt to obtain” insurance coverage is ambiguous and must be strictly construed against the drafter so as to include a promise to obtain optional PIP coverage of $50,000. OCGA § 13-2-2 (5). Neither basic PIP nor optional PIP was expressly requested by Hamilton in the lease. However, the specified amounts and coverages that ALR agreed to “attempt to obtain” for appellant were those which had been statutorily mandated as the
minimum
permissible automobile liability coverages under the former financial responsibility laws. See OCGA §§ 33-34-4 (a) (1); 40-9-37 (a). It is true that “liability insurance” is broader than “liability coverage.” “[M]otor vehicle liability insurance required by the [former] Motor Vehicle Safety Responsibility Act . . . must [have provided] certain minimum benefits ‘without regard to fault’ . . . [Cits.] . . . ‘[Liability policies’ in this state are not limited to liability coverage.” (Emphasis omitted.)
Auto-Owners Ins. Co. v. Safeco Ins. Co. of America,
2. “ ‘The general rule is that actionable fraud cannot be predicated upon promises to perform some act in the future. (Cits.) Nor does actionable fraud result from a mere failure to perform promises made. (Cit.) “Otherwise any breach of a contract would amount to fraud.” (Cit.)’ [Cit.] An exception to the general rule [exists where] a promise as to future events [is] made with a present intent not to perform or where the promisor knows that the future event will not take place. [Cit.]”
Sofate of America v. Brown,
Moreover, the lease contains a merger clause, reciting that the writing represents the entire agreement between the parties. “[R]egardless of whether alleged oral misrepresentations are relied upon offensively or defensively, ‘ “(t)he presence of a merger clause in the underlying contract is determinative if the defrauded party has not rescinded but has elected to affirm the contract. . . . (Cits.)” (Cit.)’ [Cit.]”
Flair Fashions v. SW CR Eisenhower Drive,
3. Remaining enumerations have been considered and are found to be moot.
Judgment affirmed.