Pate v. Federated Mutual Insurance

Beasley, Judge,

dissenting in part.

The record shows without dispute that both parties were operating under the mistaken belief that Flewellen and Jones1 applied to Pate’s circumstances. That belief is unquestionably what prompted his attorney to write. He demanded coverage “under the holding of these cases.” That belief is also what prompted the insurer to acknowledge coverage on the condition that the back premiums be paid. It responded: “This will . . . acknowledge that your client elects the maximum optional personal injury protection benefits as provided in the cases of Flewellen . . . .” (Emphasis supplied.) It went on straightaway to say that it would advise of the premium amount and that it would also need verification of disability and lost salary.

Later, referring to its first letter, insurer advised of the premium amount which was necessary “by return mail” if Tate wanted the additional coverage on the collision which had already occurred. He sent it over a month later, after insurer sent a letter advising that Flewelien-required coverage did not apply.

There being a mutual mistake as to the application of the law, how could the insurer be bound to a different set of circumstances? There are no facts from which the trier could find that both parties intended a contract even if Flewellen did not apply.

It would strain reason for the factfinder to conclude that the insurer intended to cover the collision which had already occurred and which the insured had not paid premiums for, in the event it was discovered during its processing of the case that because of salient dates Flewellen did not apply to force coverage.

That essential element of the contract, i.e., intention to cover even if Flewellen did not apply, which Pate claims existed, is missing conclusively. Similarly, the established facts could not support a finding that the insured could have believed, rationally, that in. the ab*168sence of Flewellen’s compulsion, he would be provided coverage retroactively for a consideration monumentally inferior to the sum he would receive.

I would affirm the trial court’s grant of the insurer’s motion for summary judgment. I agree with the majority, consequently, that the denial of summary judgment to Pate, the insured, should be affirmed.

I am authorized to state that Presiding Judge Banke and Judge Pope join in this dissent.

Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983) and Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980). See OCGA § 13-5-4.