Atlanta Casualty Co. v. Flewellen

Deen, Presiding Judge,

concurring fully with the majority opinion but also concurring specially.

While associating fully with the majority opinion, several additional observations appear apt, appropriate and applicable.

“We do not feel that this court can, by judicial opinion, enlarge upon or by construction grant rights or causes of action not clearly included in the statute itself.” Ford Motor Co. v. Carter, 239 Ga. 657, 663 (238 SE2d 361) (1977). The court’s responsibility in construing a contract has been succinctly stated in Standard Guaranty Ins. Co. v. Davis, 145 Ga. App. 147, 151 (243 SE2d 531) (1978): “Courts, including Appellate Courts, are duty bound to be just before they are generous, and have no more right by strained construction, to make an insurance policy more beneficial by extending coverage contracted for than they would have the right to increase the amount of coverage.” (Emphasis supplied.) “Where the intention of the legislature is so inadequately or vaguely expressed that the court must resort to construction, it is proper to consider the results and consequences. It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 495 (117 SE2d 538) (1960). The Georgia courts have consistently recognized that a single signature suffices, absent fraud, to bind an insured to all representations contained in the application for insurance. All American Life & Cas. Co. v. Saunders, 125 Ga. App. 7 (186 SE2d 328) (1971).

Applying the foregoing principles to the ordinary common sense meaning of the wording of Code § 56-3404b (b), it is clear that the intent of the legislature was to (a) require by definite checkmark, or other appropriate indication, an acceptance or rejection within the separate blocked off area space on the application, and (b) sign applicant’s signature above an appropriate line on the application. These are historically the conditions existing prior to and subsequent to the time gap era of Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230, 232 (274 SE2d 623) (1980). This case held that the applicant must sign separate spaces, and the spaces on the application in that case and in the two instant cases are not big enough to sign within the spaces. Spaces blocked off may be small or there may be large open spaces. For the court to construe that the applicant must sign a space or a separate space is itself a vague construction. If a space is large enough and blocked off with a signature line an applicant could sign on a line within a space. Blocked off spaces or separate spaces in this case mean to indicate by checkmark acceptance or rejection of coverages. It is clear to me that *897when the applicable code section uses the word “signed by the prospective insured” this has to refer back to the second word “application” so that after the applicant has accepted or rejected within the separate spaces he must simply sign his name thereunder on or above a line indicated for his signature.

The law of Georgia holds that all applicants still have a duty to read their applications and their policies. They are bound by what is listed in the applications. If an agent tells the applicant something to the contrary or waives any of the conditions on the application, then the applicant may rely on the agent, who is speaking for the company, unless there is a limitation on the authority of the agent engrafted on the face of the application. “Absent a clear and unequivocal limitation on the authority of an agent of an insurance company, and absent fraud and collusion between the agent and the prospective insured, the actual knowledge of the agent of facts amounting to innocent misrepresentations in the application for insurance is imputed to the insurer, and the insurer will be estopped to assert that it would not have issued the policy if it had knowledge of the true facts.” Allstate Ins. Co. v. Anderson, 121 Ga. App. 582 (2) (174 SE2d 591) (1970). See also Reserve Life Ins. Co. v. Meeks, 121 Ga. App. 592 (174 SE2d 585) (1970); Chester v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 599 (174 SE2d 582) (1970). If 99 coverages were offered in an application under Jones, twice that amount, 198 spaces, would be required, plus, at least 99 separate signatures. This would result in absurd consequences not contemplated by the legislature and a great burden on the applicant and company.

Further, attention must be focused, wherein Jones quotes Code Ann. § 56-3404b (b), where the word “signed” follows the words “separate spaces.” In discussing this code section and applicable wording the opinion transposes as a connecting and transitional link in reaching an erroneous, misconstrued, and strained result the words “sign” and “signature.” The opinion places the latter quoted words as preceding “separate spaces” rather than following these words as required by a clear reading of the statute.

Indubitably, the subject matter of Ga. Code Ann. § 56-3404b (b), the heart of Jones v. State Farm, supra, and related cases, is the application form. All of this statute centers on the application to be executed by applicants for insurance under the Georgia Motor Vehicle Reparations Act. The statute reads as follows: “Each application for a policy of motor vehicle liability insurance sold in this State must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages listed in sub-section (a) above and no such policy shall be issued in this State unless these spaces are completed and signed by the prospective *898insured.” (Emphasis supplied.)

Central to the dispute is whether each of the “separate spaces” of which the statute speaks is to be used “to indicate his acceptance or rejection” (again employing the statutory language), with a single signature following this group of separate spaces in such reasonable proximity to them as to enable a reasonable person to infer that the signature was intended to ratify the indications (in unspecified form but presumably consisting of a check-mark or an “x” or some other such customary symbol) of acceptance or rejection; or whether, on the other hand, each of the prescribed “separate spaces” is to be both “completed” (by the check-mark or other indication) and “signed” by the applicant — i.e., whether the applicant is to place both a symbolic indication and a signature in each “separate space.”

To resolve this issue one must look not only to the literal language of the statute but also to the recognized rules of statutory construction and the equally well recognized rules of reason and logic, among the foremost of which is that one must so read and so construe a statute — or, indeed, any statement — as to give effect to its author’s intent. Where language, construction rules, and logic coincide, there is no problem. But where the literal language — that is, the diction, grammar, and syntax — does not square with reason or with intent (where the latter can be ascertained), then it is the literal that must yield.

In the statute presently under consideration the manifest intent is made indisputably clear in the version of the statute enacted by the legislature in response and subsequent to the outcry prompted by the decision in Jones v. State Farm, supra. Additionally, it is simply contrary to reason to read the phrase “these spaces are completed and signed” as requiring the applicant to jam, ram or cram both a check-mark and a signature into “these spaces,” which on the typical application form consist either of a line measuring approximately three typewriter characters in length or, alternatively, of a “box” made of a series of vertically and horizontally placed characters of similar dimensions. It is perhaps equally contrary to logic to insist, as an alternative literal reading would mandate, that “completed and signed” really means only that each space must be “signed,” and that “completed and” is mere surplusage. Surely it is more reasonable to interpret the statute as meaning that each of the separate spaces must be “completed” and that it is the application form which must be “signed.”

It is unfortunate that the actual language of the statute contains this facial ambiguity; careful attention to grammar and syntax on the part of the draftsman would have avoided its occurrence. A cursory grammatical and syntactical analysis will perhaps be illuminating. *899The single sentence comprised by the statute consists of two independent clauses, with a subordinate (conditional) clause modifying the second of the two. The first independent clause begins with “Each application . . .” and extends through “subsection (a) above”; the second independent clause begins with “and no such” and extends through the remainder of the sentence, the last eleven words (beginning with “unless”) composing the subordinate clause. The grammatical subject of the first independent clause is “application,” and the predicate is “must contain.” The grammatical subject of the second independent clause is “policy,” and the predicate is “shall be issued.” In each of these two clauses the grammatical subject is also clearly the logical subject. In the subordinate clause, however, the grammatical subject is “these spaces” and the grammatical predicate is “are completed and signed,” and it is here that grammar and logic diverge. In this clause “spaces” is clearly both the grammatical and logical subject of “are completed,” the first element of the compound verb phrase “are completed and signed”; but “spaces” is equally clearly not the logical subject of the second element, “signed.” As not only logic but the wording of the successor statute clearly suggests, the coupling of the participles “completed” and “signed” was at best inadvertent and, in retrospect, so inept as to be disastrous to the effectuation of the statute’s remedial purpose.

Neither section (b) nor (c) requires multiple signatures. The statute neither discusses, authorizes nor mentions continuing offer, retrospective or prospective rules of applicability or requirements of any evidentiary burden.

Judge Banke, in his dissent, has quoted Justice Hall in Walker v. Walker, 122 Ga. App. 545, 546 (178 SE2d 46) (1970). This latter case discusses the view of flexibility and non-immutability of “common law” comprised partly of principle, policy, power and precedent. It is there further projected that the doctrine of principle and precedent “stare decisis” carries even greater weight when a portion of a statute has been once interpreted. The other two members of the panel did not agree with all the observations of Justice Hall in that case; therefore, it is a one judge opinion as to Division 2 and is not binding precedent. It was arguable then and now that parts of “common law” principles and precedents are unchanging and immutable, although the case sub judice has not obtained this status. When stability and justice, an irresistible force collides with an immovable object, as in this case ... “then justice prevails.” Hall v. Hopper, 234 Ga. 625, 632 (216 SE2d 839) (1975).

However imperfectly articulated the statute may be as it now stands, its intent and purpose are clear. It is by these principles that *900reasonable persons should be guided. The precedent of Jones, supra, should be overruled for all the reasons herein set forth.

I conclude that the trial court erred in granting summary judgment to Mrs. Flewellen and denying summary judgment to Atlanta Casualty Co. Further, I would affirm the grant of summary judgment to Allstate Insurance Co.