On Motion for Rehearing.
Motion for rehearing denied.
Deen, C. J., Quillian, P. J., McMurray, P. J., Smith and Carley, JJ., concur. Shulman, Banke, Birdsong and Sognier, JJ., dissent. *836Smith, Judge.Appellant presents three basic arguments in its motion for rehearing. First, appellant contends that “[t]he $841.29 actual damages awarded by the jury were never incurred by Appellee.” This contention was not raised by appellant in connection with its enumeration of error addressing the denial of its motion for directed verdict and has not otherwise been properly presented for review. “As this contention is now raised for the first time, it comes too late.” Leake v. City of Atlanta, 149 Ga. App. 305 (254 SE2d 462) (1979).
Appellant also contends that Pearce v. Southern Guaranty Ins. Co., 246 Ga. 33 (268 SE2d 623) (1980) “was misapplied in this case.” Appellant apparently believes that the holding in Pearce is applicable only where the plaintiff is a third party. However, Pearce contains no such restriction, nor is one implicit in the court’s reasoning. Notwithstanding appellant’s contention that “[t]he Supreme Court reached the right result for the wrong reason in Pearce,” we are bound by what the Supreme Court has expressly held — “cancellation of an automobile insurance policy providing basic third party liability insurance and basic personal injury protection benefits (no fault) issued pursuant to Georgia law cannot be voided retrospectively under Code Ann. § 56-2409.” Id. at 39.
Finally, the appellant argues that “Pearce has a disastrous effect on insurance contract law and the insurance industry generally.” We can appreciate these concerns. However, in view of the Supreme Court’s pronouncement in Pearce, we can do no more.
Birdsong, Judge.I would grant the appellant’s motion for rehearing for the reasons given in my dissent in the case. While it is true that as the majority says on motion for rehearing the appellant did not, in the proceedings below, raise the point that the claimant Sharif had never incurred an actual loss or liability with regard to the injured third party, nevertheless, that is the fact of the case and that is what removes it from the operation of Pearce, supra, as we said in our dissent. The Supreme Court’s decision in Pearce, supra, which the majority here held precludes the insurer from avoiding liability based on Sharif’s misrepresentations, was not raised in the proceeding below. This case was tried and appealed before Pearce was decided. The point simply was not relevant below, and was irrelevant until the time of our decision when Pearce had become the law in Georgia.
*837Furthermore, under certain circumstances, a binder is (and especially after Pearce, ought to be) very different from a policy of insurance. Both may be contracts (Cincinnati Ins. Co. v. Stuart, 139 Ga. App. 80, 81-82 (227 SE2d 771) cited in the majority opinion, Division 1); but if there is not some vital difference between the two with respect to the conditions of temporary coverage, then I cannot think why the law provides for binders (Code Ann. § 56-2420) and insurance companies issue them. Judge Webb quoted other cases in Cincinnati Ins. Co., supra, to the effect that “the binder issued on an application for insurance is . . . intended to give temporary protection pending the investigation of the risk by the insurer, or until the issuance of a formal policy.” Fort Valley Coca-Cola Bottling Co. v. Lumbermen’s Mut. Cas. Co., 69 Ga. App. 120, 124 (24 SE2d 846). While under Pearce, an insurer might be stuck on a policy it issues after it has had a chance to investigate the applicant, I do not think it ought to be liable when it has issued a binder based on misrepresentations of the applicant.