This is another in the plethora of cases arising from this court’s initial interpretation
(Jones v. State Farm Mut. Auto. Ins. Co.,
On May 1,1981, appellee issued to Epristible Perry, II, a policy of motor vehicle insurance containing no-fault coverage required by the Georgia Motor Vehicle Accident Reparations Act (OCGA § 33-34-1 et seq. (Code Ann. § 56-3401b et seq.)) The application executed by Perry on the same date contains no indication that Perry either elected or rejected optional no-fault coverages. On May 5, 1981, Perry was killed in an automobile accident covered by the subject policy. His surviving spouse and alleged personal representative, Harriett Perry, claimed entitlеment to the maximum of $50,000 in no-fault benefits. Appellee filed this declaratory action seeking an adjudication of its liability under the subject policy. Held:
1. Appellee initially argues that it is entitled to summary judgment on the basis of the purported endorsement by appellant and her attorney of a check in the amount of $3,500 for basic no-fault benefits. It is undisputed that appellee has paid to appellant the total of $5,000 in basic no-fault benefits. The record on appeal contains what purports to be a copy of the front аnd back of a check endorsed by appellant and her attorney and containing a general release of all claims. The check is attached to the unsworn statеment of appellee’s claims supervisor alleging that the “attached is a true and certified copy of the front and reverse sides of a draft issued by [appellee], hаving number 68799.”
Appellant contends that the record contains no evidence on which the trial court could enter summary judgment in favor of appellee on the basis of release or accord and satisfaction. “[T]he admissibility of evidence on motion for summary judgment, whether contained in affidavits or otherwise, is subject to the rules relating to the admissibility of evidеnce generally, so that evidence inadmissible on a hearing of the case would generally be inadmissible on motion for
*819
summary judgment.”
Thomasson v. Trust Co. Bank,
2. The question of whether appellee is entitled to summary judgment based on the general rеlease contained on the back of the draft was the subject of the first of two questions certified to the Supreme Court in this case. See
Perry v. Intl. Indemnity Co.,
3. Appеllee’s second and third arguments in support of the trial court’s judgment are based upon the alleged unconstitutionality of former OCGA § 33-34-5 (b) (Code Ann. § 56-3404b) and the alleged non-retroactivity of coverage. As appellee concedes, these arguments were decided adversely to it in
Flewellen v. Atlanta Cas. Co.,
supra,
4. Appellee’s final argument in support of the trial court’s judgment was the subject of the second question we certified to the Supreme Court in this case. That question read as fоllows: “May the surviving spouse of a deceased insured/applicant, as opposed to the applicant himself, ‘demand and receive the benefit of $50,000 coverage upon tender ... of such additional premium as may be due and filing of proof of loss...’ (Flewellen, supra, [250 Ga. at] p. 712) in a case in which the applicant did not properly execute a signеd rejection of optional benefits?” Perry, supra. Appellee has argued that the ability to “accept the offer” or to activate the additional $45,000 in no-fault coverаge abated upon the death of Epristible Perry and, therefore, that appellant, as his surviving spouse, has no standing to activate the additional coverage. The Supremе Court answered the certified question in the affirmative, citing three independent bases for its decision. Id. (2). Consequently, this *820 contention in support of the trial court’s judgment likewise is without merit, and the trial court erred in granting appellee’s motion for summary judgment on the issue of appellee’s liability for $45,000 in optional no-fault benefits.
5. Appellant also cites as error the trial court’s denial of her motion for summary judgment. In opposition to her motion, appellee presented no grounds or evidence in addition to those addressed in the forеgoing divisions. It is evident that, under the current state of the law, appellant has pierced appellee’s allegations relating to appellant’s entitlement to optiоnal no-fault benefits in this case. Thus, the trial court erred in failing to grant appellant’s motion for summary judgment on the liability issue. OCGA § 9-11-56 (Code Ann. § 81A-156). Appellee argues that it has coverage defenses not revealed in the record based upon OCGA § 33-34-5 (c) (Code Ann. § 56-3404b) that should not be prejudiced by the trial court’s judgment or this appeal. Appellee fails to recognize, however, that a party must set forth facts in the record in response to a motion for summary judgment showing there is a genuine issue for trial whenever the movant has demonstrated her entitlement to judgment as a matter of law based on the state of the record at the time of the motion.
Curtis v. J. L. Todd Auction Co.,
6. Also at issue оn the cross motions for summary judgment was appellant’s entitlement to attorney fees, penalties, and punitive damages. “Section 33-34-6 (Code Ann. § 36-3406b)... authorizes an award of a penаlty, attorney fees, and punitive damages in certain cases where, following reasonable proof of loss by the insured, the insurer refuses to pay and such denial of benefits is not in ‘good faith.’ ”
Binns v. MARTA,
The record in this case demands judgment in favor of appеllee on the OCGA § 33-34-6 (Code Ann. § 36-3404b) issues. The record contains no evidence of a lack of good faith on the part of appellee in denying appellant’s claim. To the сontrary, the record shows a denial of coverage on at least two grounds deemed by this court to be worthy of certification to the Supreme Court. From this court’s decision in
Jones,
supra, to the Supreme Court’s decision in
Flewellen,
suрra, the basic interpretation of former OCGA § 33-34-5 (b) (Code Ann. § 56-3404b) and the nature of the remedy accruing from a violation of its requirements traveled more than 360 degrees, and recent developments demonstrate that the resolution of those basic issues has yet to be accomplished. See
Nalley v. Select Ins. Co.,
Judgment reversed in part and affirmed in part.