Ryals v. Southeastern Fidelity Insurance

Pope, Judge,

concurring specially.

While I concur in the judgment affirming the grant of summary judgment to appellee, I arrive at the result by different means. Even if appellants had affirmatively shown from the record that the policyholder, Brice, had tendered the premium in a manner sufficient to activate the optional benefits coverage of $45,000, I believe that appellants are precluded from recovery in excess of the maximum coverage, $5,000 basic PIP and $45,000 optional coverage. See OCGA § 33-34-5 (a).

My opinion is based upon both statute and case law. OCGA § 33-34-4 (c) provides: “The total benefits required to be paid under this Code section without regard to fault as the result of any one accident shall not exceed the sum of $5,000.00 per each individual covered as an insured person or such greater amount of coverage as has been purchased on an optional basis as provided in Code Section 33-34-5, regardless of the number of insurers providing such benefits or of the number of policies providing such coverage.” (Emphasis supplied.)

Moreover, although dictum in that case, I find the factual posture of this case to be analogous to the illustration presented in Situation 5 of Ga. Cas &c. Co. v. Waters, 146 Ga. App. 149 (246 SE2d 202) (1978). “A, covered by basic PIP and $45,000 additional PIP, is struck *431by B with basic PIP plus $20,000 additional PIP. A is covered by B’s basic PIP and B’s additional PIP up to the limit of that policy. As to amounts in excess of that sum, A’s additional PIP then covers up to the limit of A’s policy (in this example, the last $25,000 up to an aggregate of $50,000).” Id. at 153. Under this rationale, appellants are clearly limited to the amounts already received, as such are the maximum benefits available. See also Ga. Farm Bureau Mut. Ins. Co. v. Musgrove, 153 Ga. App. 690 (266 SE2d 228) (1980).