stating, in regard to another provision of the insurance code, that “when an insurer issues a policy with provisions not in compliance with the law the contract will not be rendered void but the provisions of the statute will be grafted into the policy”
How later courts described this case
- stating, in regard to another provision of the insurance code, that “when an insurer issues a policy with provisions not in compliance with the law the contract will not be rendered void but the provisions of the statute will be grafted into the policy”
- adopting the three-prong retroactivity test set forth in Chevron Oil v. Huson, 404 U. S. 97 (92 SC 349, 30 LE2d 296) (1971)
- same under O.C.G.A. § 33-34-5(b)
- “[W]hen an insurer issues a policy with provisions not in compliance with the law[,] the contract will not be rendered void[,] but the provisions of the statute will be grafted into the policy.”
Written by the judges who cited it.
Later courts went against this
Limited by Mullins v. First General Insurance, 253 Ga. 486 (1984)
We reject this argument because Flewellen merely created a remedy for a violation of OCGA § 33-34-5, not an implied substantive contractual right.
Distinguished
Distinguished by Hardy v. Nationwide Insurance, 182 Ga. App. 311 (1987)
To the extent they are based upon the statute prior to its 1982 amendment, the holdings in Jones and Flewellen and their progeny are inapposite to the case at bar.
Distinguished by Federated Mutual Insurance v. Pate, 254 Ga. 361 (1985)
Flewellen is inapplicable, and the Court of Appeals should have affirmed the grant of the insurance company’s motion for summary judgment.
Distinguished by Hawkins v. Travelers Insurance, 166 Ga. App. 619 (1983)
Co., 250 Ga. 709 (300 SE2d 673) (1983) are also inapplicable.
The opinion
*717 Hill, Chief Justice,
concurring.
I concur in the opinion and judgment of the majority and commend its author and the other members of the court for working tirelessly to expedite this decision to assist the bench and bar in the resolution of cases such as these. See Gloser & Darroch, “ Jones v. State Farm: An Expensive Lesson,” 18 Ga. State Bar J. 180 (1982); Butler, “Jones v. State Farm: The Insured’s Perspective,” 19 Ga. State Bar J. 45 (1982).
I write to acknowledge Justice Clarke’s special effort and to add one observation. In my view, the intent of the General Assembly in enacting paragraph (b) of OCGA § 33-34-5 (Code Ann. § 56-3404b), as noted in the majority opinion, becomes patently clear when paragraph (b) as originally enacted is read in context with paragraph (a) as originally enacted. Ga. Laws 1974, pp. 113, 117-118, read as follows:
“Section 4. Optional coverage, (a) Each insurer shall also make available on an optional basis the following coverage:
“(1) an aggregate limit of benefits payable without regard to fault up to fifty thousand dollars ($50,000) per person which may be rejected, or reduced to not less than an aggregate limit of benefits payable without regard to fault of five thousand dollars ($5,000) per person, by written consent of the policyholder. Benefits purchased in excess of five thousand dollars ($5,000) shall be paid without apportionment to cover any expenses enumerated in Section 3 (b); and
“(2) compensation, without regard to fault, for damage to the insured motor vehicle not to exceed the actual cash value of the vehicle at the time of the loss, including up to ten dollars ($10) per day with a maximum of three hundred dollars ($300) for the loss of use of such motor vehicle; provided that benefits payable under this paragraph (2) may be subject to deductibles at the written election of the policyholder.
“(b) Each application for a policy of motor vehicle liability insurance sold in this State must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages listed in subsection (a) above and no such policy shall be issued in this State unless these spaces are completed and signed by the prospective insured.” (Emphasis supplied.)
In my view, the General Assembly’s amendment of paragraph (a) in 1975 (Ga. L. 1975, pp. 1202,1206-1207) did not change the clear meaning of paragraph (b) as originally enacted and as applied to PIP and property damage.