Partridge v. Southeastern Fidelity Ins. Co.
| Decision Date | 29 October 1984 |
| Docket Number | No. 68550,68550 |
| Citation | 323 S.E.2d 676,172 Ga.App. 466 |
| Parties | PARTRIDGE v. SOUTHEASTERN FIDELITY INSURANCE COMPANY. |
| Court | Georgia Court of Appeals |
Richard E. Miley, Augusta, for appellant.
David B. Bell, Augusta, for appellee.
The pertinent facts in this case are undisputed. Appellant's husband was an occupant of a car which struck a telephone pole and was torn in half. The impact threw appellant's husband just over 53 feet into the opposite lane of traffic. As he lay there, dead or at least seriously injured, another car struck him and dragged him some distance. His injuries were fatal. This lawsuit arose when appellant claimed benefits under the policy insuring the vehicle which struck appellant's husband as he lay in the street. The theory under which appellant claimed coverage was that her husband had become a "pedestrian" for purposes of no-fault insurance. This appeal is from summary judgment granted to the insurer of the car which struck appellant's husband.
The parties agree that the central issue in this case is whether, at the moment he was hit by a car while he lay unconscious in the street, appellant's decedent was a pedestrian or was an occupant of the car from which he had just been violently ejected. For no-fault purposes, a pedestrian is "any person not occupying a motor vehicle..." OCGA § 33-34-2(11). " 'Occupying' means to be in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle." OCGA § 33-34-2(8). Appellant's theory is that her husband was clearly not in or upon the vehicle when he was struck by the other car, and the fact that he was more than 50 feet away from it requires the conclusion that he was not immediately engaged in entering or alighting from the vehicle. Therefore, she argues, he was not "occupying" the vehicle and came within the definition of a pedestrian. Appellee, on the other hand, insists that the decedent was still occupying the first car and was, therefore, not a pedestrian when struck by the car covered by the policy issued by appellee. The trial court agreed and ruled that the policy did not afford coverage for appellant's decedent's injuries. We agree.
Apparently finding no Georgia cases directly on point (as we also have not), the trial court considered cases from other states and quoted from U.S.F. & G. v. Daly, 384 So.2d 1350, 1351 (Fla.App.1980): "It is our opinion that when one is occupying a vehicle at the moment there is an accidental, involuntary ejection therefrom, the occupancy should be extended to include injuries incurred by reason of the ejection." The trial court then held that an occupant of a motor...
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