dissenting.
I respectfully dissent for the reason that, in my view, the tender made by Cotton States was conditional and therefore ineffective. At the time the draft covering PIP benefits was offered, McFather had a judgment in an amount which included PIP benefits plus sums for penalties, attorney fees and punitive damages. In order to accept the draft for PIP benefits, McFather would have to release not only all sums in the judgment for penalties, attorney fees and punitive damages, but “. . . any claims against the payor insurance company for *15which it is contractually liable under the policy. . .” arising out of the accident in question.
Decided October 1, 1985. Spivey, Carlton & Edenfield, J. Franklin Edenfield, Hilliard P. Burt, for appellant. Jesse G. Bowles III, Albert W. Stubbs, for appellees.A tender “. . . must be certain and unconditional, except for a receipt in full or delivery of the obligation. . . .” OCGA § 13-4-24. Cotton States was entitled to a receipt for payment of PIP benefits. It was not entitled to a release from all claims under the policy arising out of the accident including sums which were part of the judgment for penalties, attorney fees and punitive damages. Those sums were still in litigation, subject to appeal, the outcome of which was unknown to the parties. Cotton States was entitled to pay the PIP benefits it owed and continue to litigate the remaining matters. It was not entitled to require McFather to release, without litigating, those remaining matters as a condition to payment of PIP benefits.