Allstate failed to pierce Sargent's defense of waiver and estoppel; instead, the evidence established that waiver and estoppel existed. See Hembree v. Cotton States c. Ins. Co., 132 Ga. App. 556 ( 208 S.E.2d 568) (1974). Sargent was entitled as a matter of law to summary judgment on the issue of coverage, as well as on the issue of duty to defend, and the trial court erred in partially granting summary judgment to Allstate, and partially denying it to Sargent.

The bank officer inadvertently filled in the erroneous information that Ballinger was employed, and the insured, upon learning (after the claim was filed) that this information was inaccurate, informed Ballinger that he was not covered for disability and offered to return his premium. Ballinger is factually distinguishable from such cases as State Farm Mut. c. Ins. Co. v. Anderson, 104 Ga. App. 815 ( 123 S.E.2d 191) (1961); Finney v. Pan-Am Fire and Cas Co., 123 Ga. App. 250 ( 180 S.E.2d 253) (1971); Hembree v. Cotton States Mut. Ins. Co., 132 Ga. App. 556 ( 208 S.E.2d 568) (1974). These cases all have to do with insurers which actually undertake the legal defense of the insured but nevertheless deny coverage.

"Likewise, an affidavit containing opinion evidence, to be of probative value in opposition to a Motion for Summary Judgment, would have to lay a foundation for the opinion given. Where the affidavit does not and cannot recite that the facts relied upon are based on the personal knowledge of the affiant but relies on a review of medical records, certified or sworn copies of those records must be attached or filed therewith for the opinion to have any factual basis at all," citing Green v. Wright, 225 Ga. 25 ( 165 S.E.2d 843), and Hembree v. Cotton States Mut. Ins. Co., 132 Ga. App. 556, 557 ( 208 S.E.2d 568). Consequently, the court could not consider the opinion evidence in the opposing medical expert's affidavit.

Appellees' estoppel defense to entry of the declaratory judgment sought by appellant was, accordingly, nonviable. Compare Hembree v. Cotton States Mut. Ins. Co., 132 Ga. App. 556 ( 208 S.E.2d 568) (1974). Noncoverage under the policy being otherwise established by the directed verdict in favor of appellant, it was error to deny appellant's motion for declaratory judgment n. o. v. See Ross v. Hall County Bd. of Commrs., 235 Ga. 309 ( 219 S.E.2d 380) (1975).

Therefore, the references in the affidavit to the National Electric Safety Code were inadmissible and should not have been considered. See, e.g., Hembree v. Cotton States Mut. Ins. Co., 132 Ga. App. 556 ( 208 S.E.2d 568). The trial court's consideration of this inadmissible evidence, however, could not have constituted reversible error. When this evidence is excluded, summary judgment is still demanded in favor of Georgia Power. See Division 1 of this opinion.

The cases in Georgia use the disjunctive in referring to the choices available to an insurer: it may enter into an agreement or give a proper notice of reservation of rights. See Winters v. Government Employees Ins. Co., 132 Ga. App. 756, supra; Hembree v. Cotton States Mut. Ins. Co., 132 Ga. App. 556 ( 208 S.E.2d 568); Finney v. Pan-Am. Fire c. Co., 123 Ga. App. 250 (1) ( 180 S.E.2d 253); Gant v. State Farm Mut. Auto. Ins. Co., 109 Ga. App. 41, 43, supra; Jones v. Ga. Cas. c. Co., 89 Ga. App. 181, supra. An insurer may not give an insured a unilateral notice of reservation of rights and thereupon proceed with a complete defense of the main claim absent insured's express or implied consent.

Id. at 185-186, 78 S.E.2d at 864. See also, State Farm Mutual Automobile Insurance Co. v. Anderson, 104 Ga. App. 815, 123 S.E.2d 191 (1961); Gant v. State Farm Mutual Automobile Insurance Co., 109 Ga. App. 41, 134 S.E.2d 886 (1964); Hembree v. Cotton States Mutual Insurance Co., 132 Ga. App. 556, 208 S.E.2d 568 (1974). A liability carrier may avoid the estoppel that arises from the carrier's conduct in defending the insured only if it properly reserves its rights to later contest or deny coverage.