Jones v. Continental Ins. Co.
| Decision Date | 30 November 1983 |
| Docket Number | No. 67168,67168 |
| Citation | 169 Ga.App. 153,312 S.E.2d 173 |
| Parties | JONES v. CONTINENTAL INSURANCE COMPANY. |
| Court | Georgia Court of Appeals |
Bruce A. Howe, Thomas M. Hunter, Savannah, for appellant.
Darlene Y. Ross, Savannah, for appellee.
Mavis Jones, a Tupperware distributor, drove her automobile to Mrs. Edenfield's home to conduct a Tupperware party. When she arrived she parked her automobile in the driveway, turned off the ignition, unloaded her samples and carried them into Mrs. Edenfield's house. She took in her usual materials, but after approximately fifteen minutes and while setting up her display she realized she had forgotten several items in the car. She returned to the car, unloaded the items, stepped backwards into a hole in the driveway and fractured her ankle. Her automobile insurance carrier denied her claim for no-fault benefits and she filed suit. Both parties moved for summary judgment based on the affidavit and deposition of the plaintiff. Jones appeals from the grant of summary judgment in favor of the insurance company and the denial of her motion. Held:
OCGA § 33-34-7(a)(a)(1) (Code Ann. § 56-3408b) provides for the payment of no-fault benefits for accidental bodily injury "while occupying any motor vehicle or while a pedestrian ..." "Accidental bodily injury" is defined in OCGA § 33-34-2(1) (Code Ann. § 56-3402b) as "bodily injury ... arising out of the operation, maintenance, or use of a motor vehicle which is accidental as to the person claiming basic no-fault benefits." OCGA § 33-34-2(9) (Code Ann. § 56-3402b) defines "operation, maintenance, or use" of the motor vehicle as OCGA § 33-34-2(8) (Code Ann. § 56-3402b) defines "occupying" as "to be in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle."
As it is undisputed that Mrs. Jones' injuries were sustained while she was unloading her automobile, the sole issue to be determined is whether her injuries resulted from the use of the vehicle within the meaning of the no-fault law.
court found that "use" cannot be exactly defined but does extend beyond mere physical contact to a point where control over the vehicle is reasonably at hand, especially while the vehicle is being utilized. See also Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga.App. 562, 564, 236 S.E.2d 550 (1977) for an extensive discussion of what constitutes "use" of a motor vehicle. In the Booker case the plaintiff was found to be using a garbage truck within the meaning of the statute because he was collecting garbage, an activity which required frequent repeated contact with the vehicle. In Parker v. Atlanta Cas. Co., 157 Ga.App. 539, 540, 278 S.E.2d 119 (1981) this court found that there is no connection...
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