dissenting.
“Where an agent intentionally misrepresents the existence of coverage or the extent of coverage an action in tort will lie and the insured’s claim may not be defeated by his failure to examine and reject the policy.” King v. Brasington, 252 Ga. 109, 110 (1) (312 SE2d 111) (1984).
The evidence in the present case reveals that the appellee savings and loan association contacted the appellant and her husband repeatedly about the availability of the mortgage life insurance coverage after the loan was already in existence and subsequently collected as a commission 15 percent of all the premium payments sent to the insurer. Such evidence provides ample support for a determination that the appellee was acting as an agent of the appellant and her husband for the purpose of procuring the insurance coverage. See generally National Property Owners Ins. Co. v. Wells, 166 Ga. App. 281 (2) (304 SE2d 458) (1983). As the appellee’s subsequent conduct in knowingly continuing to accept premium payments from the appellant and her husband for a period of several years after the insurance coverage had terminated could certainly be viewed as a fraudulent misrepresentation on its part that some amount of coverage continued to be in force during that period, it follows that the failure of the appellant and her husband to read the policies does not constitute an absolute defense to the present action. See King v. Brasington, supra.
Moreover, even if the appellee’s conduct in accepting and retaining the premium payments after the termination of the coverage was *362determined by a jury to have been merely negligent rather than fraudulent, the appellant and her husband could nevertheless be excused for their failure to examine the policies based on the fact that the appellee never transmitted the policies to them. See Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 585 (227 SE2d 77) (1976); Guthrie v. Gen. Motors Acceptance Corp., 172 Ga. App. 260, 261 (322 SE2d 752) (1984). The Supreme Court’s decision in King v. Brasington, supra, does not require a contrary conclusion, because the agent in that case did at least furnish a copy of the policy to the insured’s assignee. Where, as in the present case, the assignee/beneficiary of the policy and the agent for its procurement were one and the same, it would work a gross injustice to hold that the agent had insulated itself from liability to the insured by in effect transmitting the policy to itself.
Decided December 3, 1987 Rehearing denied December 17, 1987 William A. Neel, Jr., for appellant. Walter J. Matthews, for appellee.I would hold that the trial court erred in granting the appellee’s motion for directed verdict.
I am authorized to state that Presiding Judge McMurray, Judge Sognier and Judge Benham join in this dissent.