Cole v. Allstate Ins. Co., 69262

• Decision Date: 08 February 1985
• Docket Number: No. 69262,69262
• Citation: 326 S.E.2d 817,173 Ga.App. 454
• Parties: COLE et al. v. ALLSTATE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 817

326 S.E.2d 817

173 Ga.App. 454

COLE et al. v. ALLSTATE INSURANCE COMPANY.

No. 69262.

Court of Appeals of Georgia.

Feb. 8, 1985.

Gerald S. Mullis, Julius A. Powell, Jr., Macon, for appellants.

Thomas C. James III, Macon, for appellee.

CARLEY, Judge.

On July 13, 1984, Barbara Yarborough was driving a pickup truck which was owned by her father, appellant Cole. Her common-law husband, appellant Johnson, and her daughter, Edna Cole, were passengers. The pickup truck developed engine problems, and Ms. Yarborough pulled the truck into the emergency lane of the highway. Johnson exited the truck and attempted to repair the engine. A few minutes later, Johnson asked Ms. Yarborough to bring him a pair of pliers. Both Ms. Yarborough and Edna Cole got out of the truck. Ms. Yarborough handed Johnson the pliers and she and Edna Cole then stood behind Johnson. Several minutes later, a van traveling on the highway left the road and struck the pickup truck, Ms. Yarborough and Edna Cole. Ms. Yarborough and Edna Cole were killed instantly.

At the time of the collision, the pickup truck was covered by an insurance policy issued to appellant Cole by appellee-defendant insurer. Appellant Cole made a claim under the no-fault provisions of the policy for the burial expenses of both Ms. Yarborough and Edna Cole. Johnson made a claim for survivor's benefits under the no-fault provisions of the same policy. When appellee denied coverage, appellants initiated the instant litigation, seeking burial expenses and survivor's benefits, along with bad faith penalties and attorney fees. Appellee subsequently agreed to pay burial expenses for Edna Cole only. Appellee filed a motion for summary judgment. The trial court granted appellee's motion and appellants appeal.

The trial court granted summary judgment in favor of appellee based on its finding that Ms. Yarborough's "death did not 'arise out of the operation, maintenance or use of a motor vehicle' insured by [appellee]." Appellants assert that this finding was erroneous, and that the trial court erred in granting summary judgment in favor of appellee.

Under OCGA § 33-34-7(a)(2), the general language of which is tracked in the insurance policy involved, no-fault benefits are afforded for economic loss resulting from an "[a]ccidental bodily injury sustained by any other person while occupying the owner's motor vehicle...." (Emphasis supplied.) "Accidental bodily injury" is defined, in pertinent part, as "death ... arising out of the operation, maintenance, or use of a motor vehicle...." OCGA § 33-34-2(1). " 'Occupying' means to be in or upon a motor vehicle or engaged in the immediate act or entering into or alighting from the motor vehicle." OCGA § 33-34-2(8). Thus, even if Ms. Yarborough's death did arise out of the operation, maintenance or use of a motor vehicle, she also must have been occupying the pickup truck at the time of her death to have been an "insured" under the Georgia Motor Accident Reparations Act. Ga. Farm Bureau Mut. Ins. Co. v. Jones, 172 Ga.App. 164, 322 S.E.2d 296 (1984). Kelley v. Integon Indem. Corp., 253 Ga. 269, 320 S.E.2d 526 (1984).

It is undisputed that, at the time of the collision, Ms. Yarborough was standing three or four feet behind appellant Johnson, who was,...