303 S.E.2d 75 | Ga. Ct. App. | 1983
ST. PAUL FIRE & MARINE INSURANCE COMPANY
v.
GASAWAY.
Court of Appeals of Georgia.
H. Andrew Owen, Jr., Perry A. Phillips, for appellant.
Arthur B. Edge IV, for appellee.
*862 Thomas S. Carlock, R. Clay Porter, amicus curiae.
BANKE, Judge.
This appeal is from an order granting summary judgment to an insured who sought expanded benefits under optional no-fault coverage provided by his automobile insurance carrier, St. Paul Fire and Marine. The trial court concluded that the insurer was liable for personal injury protection benefits up to a maximum of $50,000 even though the insured's policy of insurance only provided such benefits in the minimum amount of $5,000. This conclusion was apparently based on Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), which has now been affirmed by the Supreme Court. See Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983). However, we conclude that the trial court's reliance upon Jones in this case was misplaced. The policy in question was originally applied for and issued in October 1974, prior to the effective date of former Code Ann. § 56-3404b. (Ga. L. 1974, pp. 113, 116). Thus, the insurer was not affected by the provisions of subsection (b) of the code section, but by subsection (c), which merely required that the insured "be given an opportunity to accept or reject, in writing, the optional coverages ..." From the record before us, it appears that such an opportunity was provided. It follows that summary judgment in favor of the insured was improperly granted.
Judgment reversed. McMurray, P. J., and Birdsong, J., concur.
