concurring specially.
I concur with the majority’s reversal of the grant of summary judgment in favor of the plaintiff since United Family Life Ins. Co. v. Shirley, 242 Ga. 235 (248 SE2d635) (1978) appears to require our holding that the absence of plaintiffs knowledge of the suspension of his driver’s license is irrelevant to the determination of the viability of defendant’s contention that the misrepresentation authorizes a declaration that the policy be declared void ab initio. Also, I am convinced that the majority is correct in remanding the case for a determination by the jury as to the materiality of the misrepresentation. This issue is not, in my opinion, converted from one requiring resolution by a trier of fact into one to be decided as a matter of law merely because of the contents of the Comptroller General’s Regulation 120-2 — 14.09 (3) providing that an applicant "shall not be entitled to insurance nor shall any subscriber be required to afford or continue insurance...” if the usual driver of a motor vehicle does not hold a valid driver’s license. Under the above mentioned regulation, it *759is clear that the insurer would not have been required to issue this insurance in the first place. It is equally clear that if, prior to the date of the loss sustained by the insured, the insurer had learned of the absence of a driver’s license, the insurance could have been can-celled by unilateral action of the insurer. However, I do not think that the language of the regulation dealing with the issuance and continuance of insurance coverage authorizes holding that misrepresentations regarding plaintiffs driver’s license are, as a matter of law, material and sufficient to support voiding the policy ab initio. My belief that a jury question is presented in this case is strengthened by the fact that the plaintiffs "loss” resulted from the theft of his vehicle and was unrelated to the operation thereof. I concur fully with the majority opinion and all that is said therein. I concur specially only to express my firm belief that the majority correctly refused to direct the entry of summary judgment in favor of the insurer.
Birdsong, Judge, concurring in the reversal of the judgment but dissenting as to the case being returned for a jury trial.
While I concur in the judgment of reversal, I most respectfully dissent from the reasoning of the majority which implies that a question of fact remains for resolution by a jury.
The uncontested facts show that Hayes’ driver’s license was suspended and remained suspended (and thus he did not hold an operator’s license) from the time of application for insurance until the time his car was stolen. Regulation 120-2 — 14.09(3)(a) provides, in the first instance, that such an applicant for assigned risk automobile insurance must hold a valid operator’s license or he is not entitled to coverage. There is nothing equivocal or unclear in that pronouncement. In the second instance, the latter portion of Regulation 120-2 — 14.09 (3) reads consistently with the earlier proclamation of ineligibility, stating that if the ineligible applicant’s request for insurance is assigned to an insurer, that insurer is not required to issue or continue insurance in force upon such an assigned risk applicant.
*760Ordinarily, it is a jury question as to whether a misrepresentation is material, but where the evidence excludes every reasonable inference except that it was material, it is a question of law for the court. Prudential Ins. Co. v. Perry, 121 Ga. App. 618, 626 (2b) (174 SE2d 570). In this case, the authorizing regulation proscribes the entitlement of assigned risk insurance to one who is not the holder of an operator’s license and grants the insurer the unlimited right to refuse to issue a policy to such an applicant or cancel coverage upon ascertainment of that fact. It can hardly be said then that the misrepresentation was not material. The question of lack of knowledge by Hayes is not a factor once it is shown that he did not, in fact, possess an operator’s license. Moreover, such a misrepresentation is a sufficient basis for declaring the policy void ab initio. United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 238 (248 SE2d 635).
Accordingly, I would reverse the judgment of the trial court but would remand the case with direction that summary judgment be entered for the appellant insurer in accordance with its motion.
I am authorized to state that Presiding Judge Quillian joins the dissent in part and concurs in the direction of entry of summary judgment for the insurer.