Howard v. AMERICAN SOU. INS. CO.

148 Ga. App. 25 (1978)

251 S.E.2d 7

HOWARD v. AMERICAN SOUTHERN INSURANCE COMPANY et al.

56480.

Court of Appeals of Georgia.

Submitted September 19, 1978.

Decided October 12, 1978.

Rehearing Denied November 7, 1978.

William M. Phillips, for appellant.

Joe B. Tucker, for appellees.

BELL, Chief Judge.

The plaintiff filed suit to recover for the physical damage to his vehicle under the terms of an automobile policy.

Both sides moved for summary judgment. The defendants' motion was granted and plaintiff's was denied.

The following facts are not controverted. The *26 policy issued to plaintiff was for the period of October 12, 1976 to October 12, 1977 for an annual premium of $627, which plaintiff financed on a monthly time payment plan. Plaintiff paid his monthly payment under this plan which was due on December 12, 1976. Shortly thereafter, plaintiff was advised by defendants that his premium would be increased by $254 per year for the reason that plaintiff on his application had denied any traffic violations during the preceding 36 months whereas the plaintiff's State of Georgia driving record showed to the contrary. Plaintiff did not agree to pay this additional premium. On December 22, 1976, a notice of cancellation was sent to plaintiff stating that the policy was canceled effective January 3, 1977, giving as the reason "Nonpayment of additional premium." Plaintiff on January 6, 1977, was involved in an accident resulting in a total loss to his car. Held:

1. Defendants' sole basis for canceling his policy was the nonpayment of the additional premium. Our statute authorizes cancellation when the insured fails to discharge "when due any of his obligations in connection with the payment of premiums on such policy or any installment thereof, or the renewal thereof, whether payable directly to the insurer or indirectly under any premium finance plan or extension of credit; . . ." Code § 56-2430.1 (A)(1). The increase in premium was a material modification of the policy terms to which plaintiff did not agree and it was not supported by any consideration, both of which would be necessary to effect a valid modification of the insurance contract. Broome v. Mut. of Omaha Ins. Co., 119 Ga. App. 443 (167 SE2d 607); Ga. Mut. Ins. Co. v. Ragan, 122 Ga. App. 56 (176 SE2d 230). The plaintiff under the time payment plan was current at the time of cancellation on payment of the agreed premium. The cancellation for the reason cited in the notice was therefore not authorized. Accordingly, that part of the judgment granting summary judgment to defendants is reversed.

2. The plaintiff's motion was also properly denied for he failed to sustain his burden on his motion as there was no competent proof of the amount of his damages. The part of the judgment denying plaintiff's motion is affirmed.

*27 Judgment affirmed in part and reversed in part. Shulman and Birdsong, JJ., concur.