Opinion
66173.
DECIDED JULY 13, 1984.
Action on policy. Gwinnett State Court. Before Judge Jackson.
C. Alan Mullinax, Judy C. King, for appellant.
Denmark Groover, Jr., Charles A. Wiley, Jr., Donald M. Fain, for appellee.
In Tolison v. Ga. Farm Bureau Mut. Ins. Co., 168 Ga. App. 187, 189 ( 308 S.E.2d 386), we reversed the trial court in holding that the defendant insurer was in substantial compliance with the statute (now OCGA § 33-34-5 (b), formerly Code Ann. § 56-3404b, as amended); that the plaintiff therein could not make retroactive application for increased coverage; and, that there was no fraud involved and the plaintiff was estopped from asserting the continuing offer for the increased amount of insurance. However, we affirmed the trial court in denying the plaintiff's motion for partial summary judgment, in refusing to hold as a matter of law the plaintiff was entitled to receive personal injury benefits on a retroactive basis as issues for jury determination remained. The Supreme Court in Tolison v. Ga. Farm Bureau Mut. Ins. Co., 253 Ga. 97 ( 317 S.E.2d 185), in reviewing our opinion and judgment, in Case No. 40461 affirmed our judgment of reversal but in Case No. 40404 reversed our judgment of affirmance of the trial court in denying Tolison's motion for partial summary judgment. Accordingly, we make the judgment of the Supreme Court in Tolison v. Ga. Farm Bureau Mut. Ins. Co., 253 Ga. 97, supra, our judgment after vacating our partial judgment of affirmance. The case must be reversed in its entirety and returned to the trial court.
Judgment reversed. Birdsong and Benham, JJ., concur.