338 S.E.2d 867 | Ga. Ct. App. | 1985
On August 11, 1978 appellee Lorraine Adamson was involved in an automobile collision. As a result she made a claim for personal injury protection (PIP) benefits under an insurance policy providing for minimum no-fault coverage as well as coverage for $2,000 in “med-pay” issued to her by appellant Hartford Accident and Indemnity Group (“Hartford”). Appellee’s claim was disputed and, on December 6, 1978, she filed suit against Hartford alleging that she was entitled to PIP benefits for losses including lost earnings, as well as seeking punitive damages, bad faith penalties and attorney fees. Hartford answered setting up various defenses and denying appellee’s claim for loss of earnings. Prior to trial appellee and Hartford agreed to a settlement of the claim whereby appellee received two drafts from Hartford in the amounts of $4,945 and $2,000, both of which were later negotiated by appellee. In consideration for the payment of $6,945, on March 29, 1979 appellee signed a document entitled “Release and Settlement of All Claims” wherein she acknowledged full accord, satisfaction and settlement of any and all claims against Hartford for damages, demands, benefits, rights and causes of action sustained or claimed by appellee to have been sustained in the August 11, 1978 collision. Hartford was further released from all claims which had been or could have been asserted in the suit filed by appellee. The document stated that appellee understood and agreed that the settlement constituted full, final and complete compromise of disputed claims arising under her policy with Hartford. Consistent with the release and settlement agreement, appellee dismissed with prejudice her pending suit against Hartford. Court costs were paid by Hartford and the document dismissing the suit with prejudice was filed April 19, 1979.
On January 31, 1984 appellee filed suit against Hartford alleging her entitlement to $45,000 in additional personal injury protection coverage for medical expenses and lost wages she claims have resulted from the August 11, 1978 collision. Additionally, appellee seeks bad faith penalties, attorney fees and punitive damages. Although the record contains nothing to show the basis of this claim against Hartford, appellee apparently grounds this suit upon the cases of Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983) and Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230 (274 SE2d 623)
1. In addressing the effect of the “Release and Settlement of All Claims” signed by appellee in 1979, we acknowledge that such a release does not necessarily bar the insured from later maintaining a “Jones claim” for damages arising from the same accident against the same insurer alleging entitlement to additional benefits for optional PIP coverage. See Perry v. Intl. Indem. Co., 251 Ga. 709 (309 SE2d 139) (1983); Flewellen v. Atlanta Cas. Co., supra at Division 4; Seagraves v. Travelers Ins. Co., 171 Ga. App. 525 (320 SE2d 181) (1984); Dupree v. Travelers Ins. Co., 166 Ga. App. 56 (303 SE2d 160) (1983). However, the case before us now differs in two significant respects from the foregoing cited cases. In Flewellen v. Atlanta Cas. Co., supra at 712, the Supreme Court explained the rationale underlying the “Jones claim,” to wit: “[t]he [no-fault] statute says that $50,000 PIP coverage is the least the insurer must offer. OCGA § 33-34-5 (a) [cit.]. The statute also says this offer of coverage may be refused only by a signed rejection in writing. OCGA § 33-34-5 (a) and (b) [cit.] In the absence of such a rejection, the policy, therefore, provides $50,000 PIP coverage from its inception. The insured has the right to demand and receive the benefit of $50,000 coverage upon tender by the insured of such additional premium as may be due and filing of proof of loss by the injured party.” Unlike the foregoing cases, the record in this case is completely devoid of the application for insurance to show whether or not appellee was offered and rejected in writing the optional coverage. There is also no evidence of appellee’s tender of the additional premium. We have only appellee’s bare assertion of entitlement to $45,000 in optional benefits and her claim that this was demanded by her of Hartford, both of which are denied in Hartford’s pleadings. Thus, because at least one essential element of appellee’s claim is missing, for purposes of this appeal the issues raised herein are somewhat more theoretical. That is, assuming that appellee can otherwise show that she has a valid “Jones claim” for additional benefits for optional PIP coverage, does this signed 1979 release preclude her lawsuit to recover on that claim? On the basis of the reasoning which follows, we hold that it does.
Appellee relies upon Perry v. Intl. Indem. Co., supra, and Flewellen v. Atlanta Cas. Co., supra, for the proposition that the signed re
Further, under the settlement agreement Hartford paid appellee more in basic no-fault benefits than she was legally owed. OCGA § 33-34-4 (a) (2) provides that the maximum amount in basic PIP benefits is limited to $5,000. The statute then sets out four categories of benefits comprising basic PIP benefits which may be available to the insured: (A) medical expenses not to exceed $2,500; (B) lost earnings according to the specified formula; (C) reasonable expenses for necessary services incurred during the disability; and (D) funeral and burial expenses not to exceed $1,500. See OCGA § 33-34-4 (a) (2) (A-D). Appellee has not sought benefits under subsection (C) and those under (D) are not available to her. As we have explained, appellee is not entitled to lost earnings under subsection (B). The only category of basic PIP benefits arguably owed to appellee on her claim, medical expenses, are limited by statute to a maximum of $2,500. Hartford paid appellee $4,945 in basic PIP benefits, an amount which is at least $2,445 more than she was legally owed. Contrary to the factual situation in Flewellen v. Atlanta Cas. Co., supra at 716, this is a case
2. Based upon our decision in Division 1, supra, and for the reasons stated in this Court’s opinion in Davis v. First of Ga. Ins. Mgrs., 171 Ga. App. 347 (2) (319 SE2d 517) (1984), the trial court erred in denying Hartford’s motion for summary judgment since appellee’s instant suit is barred by the doctrine of res judicata.
Judgment reversed.