Lavender v. St. Paul Mercury Insurance

Banke, Judge.

This appeal is from an order granting summary judgment to the appellee insurer and denying summary judgment to the appellants in a suit to obtain optional no-fault benefits allegedly due to the appellants under the terms of their automobile liability insurance policy. Held:

This case is factually identical to and controlled by this court’s decision in St. Paul Fire &c. Ins. Co. v. Gasaway, 165 Ga. App. 861 (303 SE2d 75) (1983). As in that case, “[t]he policy in question was originally applied for and issued . . . prior to the effective date of former Code Ann. § 56-3404b (Ga. L. 1974, pp. 113,116) [now OCGA § 33-34-5]. 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 ...,’ ” p. 861. The principal insured acknowledged that he had signed a written rejection of the optional coverages in 1975, long before the accident giving rise to the claim involved here. Based on this admitted rejection in writing of the optional benefits now claimed, the trial court properly granted the appellee’s motion for summary judgment while denying the appellants’ motion.

Decided January 5, 1984.

Richard J. Dreger, for appellants.

Perry A. Phillips, H. Andrew Owen, for appellee.

Judgment affirmed.

Deen, P. J., concurs. Carley, J., concurs specially.