Appellant-Hawkins suffered serious personal injuries on May 9, 1975, in a collision between her automobile and a vehicle being operated by Gerald Remer. Appellee-Travelers Insurance Company (Travelers) is the no-fault carrier for Hawkins under a policy providing both mandatory PIP benefits and an additional $20,000 in optional PIP coverage. Allstate Insurance Company (Allstate) is Remer’s liability carrier under a policy providing up to $50,000 coverage.
On July 28, 1975, Allstate was placed on notice that Travelers was Hawkins’ no-fault carrier and, accordingly, the insurer entitled to the right of subrogation under former Code Ann. § 56-3405b (d) (Ga. L. 1974, pp. 113, 119). Subsequently, Hawkins was paid $20,456.73 in no-fault benefits by Travelers. With regard to settlement of Hawkins’ claims against Remer, however, Allstate was in a quandary. Allstate’s agent in charge of the negotiations testified that he would have authorized payment to Hawkins of $50,000, the full limits of Remer’s policy, if he had not been put on notice of Travelers’ subrogation rights. Allstate’s agent further testified: “At that time,..., it was just completely up in the air as far as the law on it [Travelers’ subrogation rights] was concerned. I didn’t — we didn’t know whether the injured party was going to get the first money or whether the claimant — the [no-fault] insurance carrier was entitled to the first money, so at that time, we tried to — in cases of this type, *232 where we were paying our policy limits — we tried to contact the carrier who had a [subrogation] claim against us and either compromise the claim or get them to waive it, if they would.” Apparеntly there were discussions held between Allstate, Travelers and Hawkins concerning the disbursement of the proceeds of Remer’s policy. Both Allstate and Travelers informed Hawkins that “it was the law” that Travelers was entitled as the no-fault insurer with subrogation rights to recover from the proceeds of Rеmer’s liability insurance the amount of the PIP benefits it had paid to Hawkins. As the consequence of these discussions, Hawkins, through her attorney, “agreed to settle the Hawkins’ claims against Gerald Remer and Allstate for $50,000 subject to Travelers’ PIP claim.” Thereafter, Allstate and Travelers reached an agreement whereby the former would tender and the latter would accept in settlement of its subrogation claim an amount equal to one-half of the $20,456.73 PIP benefits it had paid out to Hawkins. Accordingly, under what Hawkins terms a “mistake of law with full knowledge of all the facts,” she and her husband received $39,771.64 from the $50,000 proceeds of the Remer policy and Travelers received the balance of $10,228.36. Hawkins, in consideration of this payment, signed a general release of Allstate and its insured, Remer.
The instant action was instituted by Hawkins against Travelers. In Count I, Hawkins sought to recover the $10,228.36 that Travelers had been paid by Allstate from the proceeds of Remer’s liability policy. In Count II, Hawkins sought to recover benefits under the medical payments provision of the policy and, in addition, sought penalties and attorney fees under Code Ann. § 56-1206. After extensive discovery, Hawkins moved for partial summary judgment on the issue оf liability and Travelers moved for summary judgment as to the entire action. Hawkins also moved under Code Ann. § 81A-156 (g) for an order awarding her reasonable expenses and adjudging Travelers in contempt for filing an allegedly “false” affidavit in the action. After a hearing, the trial court denied Hawkins’ motions and entеred summary judgment in favor of Travelers as to all claims. It is from that order that Hawkins appeals.
1. Hawkins is correct in her assertion that, under the facts of this case,
Blaylock v. Georgia Mut. Ins. Co.,
We note at the outset that the mere fact that Hawkins’ right to “full compensation” had priority over Travelers’ right to subrogation is not dispositive. To paraphrase
Blaylock,
priority of the right of the injured party to “full compensation” does not necessarily establish the right of the no-fault carrier to subrogation, even where the assets of the tortfeasor are inadequte to pay his liabilities. This is true because, as we interpret
Blaylock,
“[t]o the extent that [the injured party has in fact] been [fully] compensated for [his] injuries,... the balance [of the policy proceeds], if any, [is] due the [no-fault] insurer [having subrogation rights.]”
Blaylock,
The application of the aforesaid principles to the facts of the instant case demonstrates the following: Travelers’ initial subrogation claim was properly asserted against Allstate, Remer’s insurer. Compare
Aetna Cas. &c. Co. v. Sosebee,
Pursuant to Hawkins’ agreement, Allstate subsequently offered and Hawkins and her husband then accepted a total of $39,777.64 in settlement of their respective tort claims and executed a gеneral release in favor of Remer and Allstate. A release “operates to release a tortfeasor on the theory that there should be a just satisfaction and there has been a complete accord and satisfaction. [Cits.]”
Cash v. Street & Trail, Inc.,
A contrary result is not required by
Culbreath v. Culbreath,
7
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Ga. 64, supra. In that case it was held that “[m]oney paid by mistake of the law, may be recovered back in an action for money had and received, where there is a full knowledge of all the facts;
provided,
that the mistake is clearly proven, and the defendant cannot, in good conscience, retain it.”
Culbreath,
Mоreover, it does not appear that Travelers in good conscience cannot retain the money it received from Allstate. Unlike the defendants in
Culbreath,
supra, Travelers had a right to subrogation assertable against Allstate, a right which under
Blaylock
was merely subordinate to Hawkins’ right to full compensatiоn from the insurance proceeds. Allstate, not Hawkins, actually paid the money to Travelers and did so only after Hawkins’ voluntary actions freed the balance of the policy limits for the satisfaction of the no-fault subrogation claim. It is true that Hawkins’ actions were apparently prompted or at least preceded by the statements of Allstate and Travelers that “it was the law” that the latter was entitled to be subrogated from the proceeds of Remer’s policy. However, these statements were, insofar as they went, true, the only qualification being that Hawkins’ right to “full compеnsation” had priority over Travelers’ subrogation rights. There is no indication and Hawkins does not contend that Travelers, in asserting its right to subrogation against Allstate or in its discussions with Hawkins, did not act in good faith or in good conscience. See
Stern v. Howell,
2. As to Count II, Travelers asserted and the trial court ruled that Hawkins’#claim for medical benefits was barred by a 12-month limitation in the policy on bringing suit for such benefits. The operative lаnguage of the policy relied upon by Travelers as establishing the 12-month limitation is as follows: “COVERAGE C — MEDICAL PAYMENTS. The company will pay all reasonable expenses incurred within one year from the date of accident...” It is readily apparent that this language of the policy defines the
coverage
extended by Travelers and does not establish a 12-month period within which the claim for medical benefits must be filed. Obviously the language, appearing as it does in the coverage portion of the policy, does not mean that Travelers will pay medical benefits if and only if a claim for such benefits is made within onе year of the accident. The only reasonable construction of the literal language of the policy is that Travelers agreed to extend coverage and to pay for all reasonable medical expenses which the insured had incurred, not had made a claim for, during the yеar following an accident. See generally
Cincinnati Ins. Co. v. Gwinnett Furniture Mart,
However, it was not error to deny Hawkins’ motion for summary judgment as to Travelers’ liability on Count II. It appears that under the policy one of the conditions to payment of medical benefits was the requirement that “[a]s soon as practicable the injured person,... shall give to [Travelers] written proof of claim ...” In her complaint Hawkins alleged that she had “submitted reasonable proof of her claim and made demand for payment of necessary medical expenses to [Travelers] on June 9 and 19, 1980,” some five years after the
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collision and some four years after the coverage for medical expenses had apparently expired. Travelers in its answer denied the allegations of the complaint that Hawkins had submitted “reasonable proof” of the medical benefits claim. We are cited to no evidence on this issue of “reasonable proof’ and in our review of the record we have found none. Accordingly, it was not error to deny Hawkins’ motion for partial summary judgment as to Count II. See generally
Norfolk & Dedham Mut. Fire Ins. Co. v. Cumbaa,
3. While we find no Georgia authority construing Code Ann. § 81A-156 (g), we hold that it was not error for any reason urged on appeal to deny Hаwkins’ motion to award reasonable expenses and to adjudge Travelers in contempt. Cf.
Moore v. Moore,
4. It was not error to deny Hawkins’ motion and to grant Travelers’ motion for summary judgment as to Count I. While it was error to grant Travelers’ motion for summary judgment as to Count II, it was not error to deny Hawkins’ motion as to that count. Finally, it was not error to deny Hawkins’ Code Ann. § 81A-156 (g) motion.
Judgment affirmed in part and reversed in part.