concurring specially.
In this case, serious questions exist with regard to the conduct of both parties. It appears to me that neither Ponse nor Atlanta Casualty Company, nor even the Moraleses, behaved responsibly or in a manner consistent with applicable law. It remains for a jury to sort out blame. Because I agree with the majority that some questions of fact exist that preclude the grant of summary judgment to Atlanta Casualty, I concur in the judgment. I write specially because I cannot agree with all that is said in the majority opinion.
*646I believe, for example, that a question of fact exists with regard to the crucial issue of whether Ponse’s attorney informed the insurer that Ponse had been served with Wilson’s suit and whether the insurer informed Ponse’s attorney it would defend the suit. Ponse’s attorney testified on his deposition that he telephoned Atlanta Casualty in Ponse’s presence and the insurer confirmed it was aware that the lawsuit had been filed. Although Ponse’s attorney testified he confirmed this conversation by letter to Atlanta Casualty and stated in the letter that during the telephone conversation Atlanta Casualty had indicated it would defend the suit, he was less than certain on his deposition that this had actually been conveyed to him. Atlanta Casualty’s Claims Manager stated in her affidavit that neither Ponse nor Morales ever contacted the company regarding the suit. If a jury decides that Ponse did not actually inform Atlanta Casualty that he had been served, then the only notice it received, given by Wilson’s attorneys, informed the insurer only that suit would be filed, not that it had been filed and that Ponse had been served. Although from this information Atlanta Casualty must have had a fairly good idea that a permissive driver of its insured was very likely to be served, I cannot agree with the majority that this constituted the actual notice required to trigger the duty to defend Ponse.
Further, I cannot agree with the majority that the record does not show a material misrepresentation by the Moraleses. At best, a question of fact exists whether the Moraleses made two such material misrepresentations that would void the policy. First, in my view, they misrepresented the fact that Ponse was at least a part owner of the vehicle. In December 1993, after Ponse married the Moraleses’ daughter Roxana and the Ponses came to live next door to the Moraleses, Ponse and Raymond Morales visited the car dealer from whom Morales had previously purchased several vehicles. Ponse had never had a driver’s license, although he had been driving for over five years and had previously been charged with DUI and driving without a license. The testimony of the proprietor of the car lot establishes that the proprietor refused to sell the car in issue to Ponse because Ponse was not a licensed driver and was under age 21 and that Morales then bought the Celebrity for Ponse’s use. Thereafter, Ponse was the primary user of the Celebrity. He often kept the keys in his half of the duplex, drove the car to and from work, and used it for personal errands. He always had the right to use the car; all he needed to do was get the keys. It was not necessary for him to get permission from Morales. Ponse also helped pay for gas and insurance, and he sometimes paid a portion of the monthly payment for the car and for repairs. Morales was aware that Ponse was not licensed to drive because Ponse told him.
Second, the Moraleses also failed to disclose that Ponse would be *647the primary driver of the car. When Miriam Morales came to the Oxford Insurance Agency office on December 20, 1993, to add the new car to the insurance policy, she spoke with Monica Quattlebaum. Quattlebaum asked if any other changes should be made, such as adding drivers, and she inquired whether any drivers other than Raymond and Miriam Morales were in their home and whether anyone else would be driving the Celebrity. The Moraleses did not reveal that Ponse would be driving the Celebrity regularly. Notwithstanding arguments that every permissive driver need not be listed, it is clear from the circumstances surrounding the purchase of the Celebrity, as well as from the depositions of Ebodio Ponse and Roxana Morales Ponse, that Ebodio Ponse was, in fact, the primary driver of the Celebrity. At each policy renewal, the Moraleses affirmed that the conditions existing when the policy was first issued were still true, including that Raymond and Miriam Morales were the only drivers of the insured vehicles. The premiums and the acceptance of the risk were based upon this information.
In my view, these representations were false and material; they changed the nature, extent, or character of the risk. Even when an applicant acts in good faith, not knowing that a representation is untrue, such misrepresentations void a policy. Bourne v. Balboa Ins. Co., 144 Ga. App. 55, 56 (240 SE2d 261) (1977).1 Here, it is undisputed that had the Moraleses informed Atlanta Casualty that Ponse was driving the Celebrity, the insurer would not have issued the policy. David Boyd, Atlanta Casualty’s Manager of Policyholder Services, stated in his affidavit that Atlanta Casualty did not issue policies of insurance to any person who would make the car available to users not holding a valid driver’s license, and that Morales’s failure to inform Atlanta Casualty that Ponse was driving the car “substantially increased Atlanta Casualty Company’s risk and exposure.” Boyd stated that an unlicensed driver with Ponse’s history of moving violations and alcohol violations would be “an uninsurable risk.” In fact, the policy itself states that any “omissions, concealment of facts or incorrect statements contained in the application” or in a notification of change “that are fraudulent or materially affect the acceptance or rating of this risk by us, shall prevent recovery under this policy.”
It is clear to me that Atlanta Casualty had sufficient grounds to contest the claim. But it maintains that it did not know until the present action was filed and the depositions of the Ponses were taken that those grounds existed. If that is true, I can see no reason for its *648failure to defend Ponse unless it did not have proper notice that he had been served. Because a jury must decide that question, I agree that summary judgment in favor of either party was not appropriate.
Decided March 29, 2002 Robert H. Benfield, Jr., for appellant. Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Daniel S. Wright, for appellee.I am authorized to state that Judge Phipps joins in this special concurrence.
Bourne is physical precedent only but has been cited without reservation. See, e.g., Miller v. Nationwide Ins. Co., 202 Ga. App. 737 (415 SE2d 700) (1992).