Emond v. State Farm Mutual Automobile Insurance Company

333 S.E.2d 656 (1985

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Nature of the Case

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Facts

P was injured in an automobile collision in 1979. P was insured by D. The policy specifically purported to provide only basic PIP coverage. But P had a statutory right to demand and receive the benefit of $ 50,000 [optional PIP] coverage upon [her] tender . . . of such additional premium as may be due and filing of proof of loss . . . .' Before that right materialized P received only her $5,000 basic PIP benefits as per the policy. P's policy with D also provided $5,000 medical payment coverage for the 'payment of medical expenses incurred for services furnished within one year from the date of the accident.' The policy also provided that medical payment coverage 'shall be excess insurance over any Personal Injury Protection benefits paid or payable under this or any other automobile insurance policy because of bodily injury sustained by an eligible injured person.' After P was paid $ 5,000 in basic PIP benefits, she was paid the full $5,000 of her excess medical payment benefits. Subsequent to her new rights, P paid a premium for $50,000 optional PIP coverage. D agreed that P was entitled to that coverage. P, having already paid $ 10,000 of appellant's claims D paid $ 40,000 more, bringing its total payments to $50,000. P then submitted a claim for medical expenses, all of which she had incurred more than one year after the collision. D refused to pay this claim. P sued D asserting that she had been paid only $45,000 in PIP benefits and that she was entitled to an additional $5,000 in such benefits. D asserted that P 'has been paid all benefits available under [the] terms of the applicable policy.' The trial court concluded that the $5,000 that had originally been paid to P under the excess medical payment coverage of the policy should, as the result of P's subsequent invocation of Flewellen v. Atlanta Cas. Co., be reallocated so as to be considered as payment under her optional PIP coverage. The trial court determined that $50,000 in PIP benefits had already been paid. The trial court further concluded that P would not be afforded excess medical payment coverage under the terms of the policy until her full $50,000 in PIP benefits had first been exhausted. The trial court's final conclusion was that P was not entitled to any additional benefits for her medical expenses under the policy. Summary judgment was granted in favor of D. P appealed.