This is an appeal from a motion granting summary judgment to appellee United Services Automobile Association (USAA) and denying appellant Hugh B. Anderson's cross-motion for summary judgment.
This case involves a determination whether appellee substantially complied, within the meaning of OCGA 1-3-1
(c), with the requirements of former statutory provision OCGA 33-34-5
(c). We hold that appellee did substantially comply with those statutory requirements, and that no genuine issue of material fact exists in this case which would bar the granting of appellee's motion for summary judgment by the trial court. (Appellee's motion to order supplemental record is denied.)
Appellant asserts as his sole enumeration of error that "[s]ince the offer to purchase optional personal injury protection benefits failed to meet the requirements of OCGA 33-34-5
(c), the trial court erred in granting [appellee/defendant's] motion for summary judgment and denying [appellant/plaintiff's] motion for summary judgment."
Appellee's first offer of optional no-fault coverage duly mailed to appellant cannot be considered for any purpose in determining whether the statutory provision was complied with, because it failed to provide appellant with "a means for the insured to make a written acceptance or rejection" of the available optional coverages and appellant was an insured to whom the provisions of OCGA 33-34-5
(c) applied. Wiard v. Phoenix Ins. Co., 251 Ga. 698
, 700 (310 SE2d 221
); see also United Svcs. Auto. Assn. v. Ansley, 254 Ga. 647 (333 SE2d 579)
(distinguishing but tacitly affirming Wiard). The appellant in this case stands in substantially the same position as did the insured in Wiard as both failed to respond to the first written no-fault coverage offer.
We need not determine whether appellee's second no-fault optional coverage offer was sufficient to meet the requirements of OCGA 33-34-5
(c), although it appears on its face not to meet the two-prong test of Wiard, as we find that the record contains other adequate proof of such compliance by the appellee.
In addition to the above two offers, appellee mailed to all Georgia policyholders, including appellant, correspondence concerning no-fault optional coverages similar to that attached hereto as appendices 1 through 5. This correspondence was duly addressed to the address shown on the policy at the time of mailing, and each mailing was sent by first class mail. It further appears that the mailing of the material listed in appendices 1 through 5 occurred annually after the second offer was mailed in January or February 1975 until 1979. These facts contained in the affidavit of appellee's Director of Out-Mail Operation are uncontroverted by any other evidence of record. We find that the information contained in the above correspondence did, in its totality, substantially comply with the statutory requirements of OCGA 33-34-5
(c). Compare the information contained in the correspondence at appendices with the documents found acceptable in United Svcs. Auto. Assn. v. Ansley, supra. Further, we find that the clarity of the documents, attached as appendices, speaks for itself.
APPENDIX 1 APPENDIX 3
Edward L. Savell, for appellee.