Pennsylvania Nat. Mut. Cas. Ins. Co. v. Burnetti

Citation192 Ga.App. 593,385 S.E.2d 446
Decision Date14 July 1989
Docket NumberNo. A89A0656,A89A0656
PartiesPENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. BURNETTI.
CourtUnited States Court of Appeals (Georgia)

Wildman, Harrold, Allen, Dixon & Branch, Alfred B. Adams III and Frank O. Brown, Jr., Atlanta, for appellant.

Carter & Butt, Eugene D. Butt, Madison, for appellee.

POPE, Judge.

The appellee filed suit against the appellant insurer seeking to recover Personal Injury Protection, or "no-fault," benefits allegedly owed him due to his having been "struck by a motor vehicle" operated by the appellant's insured. During his deposition, the appellee testified that while using a public telephone located at an intersection, he observed the insured driving towards him on a collision course with the telephone stand. He stated that he was able to jump out of the way and avoid being struck by the vehicle before it collided with the telephone stand but that in doing so he twisted and injured his knee.

The appellant insurer moved for summary judgment on the ground that the appellee's testimony established without dispute that he had not been "struck by [a] motor vehicle" within the contemplation of OCGA § 33-34-7(a)(3). In response, the appellee submitted an affidavit in which he averred that, in his efforts to avoid being hit, he had "struck the wall which was adjacent to where I had been standing" and had then "[fallen] to the ground, striking the pavement." The case is before us pursuant to our grant of the appellant insurer's application for an interlocutory appeal from the denial of its motion for summary judgment.

OCGA § 33-34-7(a)(3) provides for the payment of basic no-fault benefits for economic loss resulting from "[a]ccidental bodily injury sustained by any ... person as a result of being struck by the owner's motor vehicle while a pedestrian in this state." There is no question that the appellee in this case was a "pedestrian" at the time of the accident. The question then is whether he was "struck by" the insured's vehicle. In construing that term, this court has previously held that "one can be 'struck by' an automobile for the purpose of the application of OCGA § 33-34-7(a)(3) without actually coming into physical contact with the automobile itself." Johnson v. Nat. Union Fire Ins. Co., 177 Ga.App. 204, 206, 338 S.E.2d 687 (1985). "In ordinary parlance, the word 'struck' is frequently used to denote a movement or a force causing or resulting in a physical impact. The 'striking' force can be either the force which most immediately comes in contact with the object struck, or it can be the force setting in motion a chain of events leading up to the striking of an object." (Emphasis supplied.) Id. at 205, 338 S.E.2d 687. In the case at bar it is clear that the appellant's vehicle was the movement or force which set in motion the chain of events which led to the appellee's physical impact with a stationary object. This was sufficient to show that appellee was "struck by" appellant's vehicle and the trial court properly denied appellant's motion for summary judgment.

The dissent, however, would deny recovery because the appellee, instead of being hit by appellant's vehicle, or by another vehicle propelled into him by appellant's vehicle, sustained his injuries when he himself was propelled into a stationary object while attempting to avoid impact with the appellant's vehicle. To grant recovery to a person who, sensing danger, does nothing to remove himself from peril and is thereby injured by the impact itself with the on-coming vehicle, while denying recovery to one who, under the exact same set of circumstances, attempts to escape danger by fleeing the path of the oncoming vehicle, thereby sustaining injury by impacting with an object other than the vehicle, leads to anomalous, if not absurd results. Clearly, in either situation, the vehicle was the force which led to the claimant's physical impact with or striking of an object and recovery should be allowed.

As to the apparent discrepancy between appellee's deposition testimony and the averments in his affidavit, it has been held by our Supreme Court that questions of whether the testimony of a party-witness on summary judgment is self-contradictory and whether a reasonable explanation has been offered for the contradictory testimony are questions of law for the trial court to decide. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30, 343 S.E.2d 680 (1986); see also Chapman v. Burks, 183 Ga.App. 103, 106, 357 S.E.2d 832 (1987). Here the trial court, in denying the motion for summary judgment, obviously resolved the apparent conflict in appellee's favor. I would note also that the resolution of any actual discrepancies concerning the occurrence in question will ultimately be for the jury's resolution.

Judgment affirmed.

CARLEY, C.J., and DEEN, McMURRAY, P.JJ., and BENHAM, J., concur.

BEASLEY, J., concurs in part and dissents in part.

BANKE, P.J., and BIRDSONG and SOGNIER, JJ., dissent.

BEASLEY, Judge, concurring in part and dissenting in part.

I agree with the majority's ruling with respect to the apparent discrepancy in appellee's statements, but I cannot concur in the construction of OCGA § 33-34-7(a)(3). In this regard I agree with the dissent.

The Supreme Court has stated, in connection with its interpretation of this very provision, "that the word 'strike' should be given its ordinary meaning, which is 'To come into violent contact with; hit.' Funk & Wagnall's Standard Dictionary." Collins v. Intl. Indem. Co, 256 Ga. 493, 495, 349 S.E.2d 697 (1986). "By" relates to the vehicle which is the activating force, that which strikes the pedestrian directly or, as construed by the appellate courts, indirectly by striking something which strikes the pedestrian.

When it is the pedestrian's activating force which results in the injury complained of, however, and it is he who strikes, this is not covered within the concept of "struck by" the vehicle. While this, too, is indirect, it is indirection of a different nature and cannot be squeezed into the language used by the legislature.

We cannot change the language so as to cover circumstances not covered by the plain language of the statute, on the supposition that the legislature would have changed the language if it had foreseen these circumstances. See dissent in State Farm, etc., Ins. Co. v. Holmes, 175 Ga.App. 655, 658, 333 S.E.2d 917 (1985).

BANKE, Presiding Judge, dissenting.

1. By its holding in this case, the court has effectively eliminated the words, "as a result of being struck by the owner's motor vehicle," from OCGA § 33-34-7(a)(3), thereby holding, in effect, that no-fault benefits may be recovered by any person who suffers an accidental bodily injury in this state in connection with the ownership, use or maintenance of an insured motor vehicle. This may or may not be an enlightened position as a matter of public policy, but it is unquestionably contrary to the plain wording of the statute.

Personal injury protection, or no-fault, insurance coverage was never intended to be co-extensive with motor vehicle liability insurance coverage. No-fault insurance is, of course, much broader in scope in that, as the name implies, it provides for compensation without regard to fault. On the other hand, it is more restrictive than liability insurance in the sense that it insures only against economic loss. See OCGA §§ 33-34-4(a), 33-34-5(a). Also, from the wording of OCGA § 33-34-7(a), it is apparent that no-fault coverage was intended to apply only to injuries sustained while (1) occupying a motor vehicle or (2) as the result of being "struck by" a motor vehicle while a pedestrian. Motor vehicle liability insurance, on the other hand, encompasses all injuries for which an insured could be considered legally responsible, provided only that the injuries arose from the ownership, use or maintenance of a covered motor vehicle. See generally Rustin v....

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  • Fireman's Fund Ins. Co. v. Kerger
    • United States
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    ...motion for summary judgment [and properly granted summary judgment to plaintiff on this basis.]" Pennsylvania Nat., etc., Ins. Co. v. Burnetti, 192 Ga.App. 593, 594, 385 S.E.2d 446 (1989) (cert. granted September 28, 1989, Clarke, P.J., Smith and Gregory, JJ., Contrary to the assertions of ......
  • Pennsylvania Nat. Mut. Cas. Ins. Co. v. Burnetti
    • United States
    • Georgia Supreme Court
    • January 30, 1990
    ...a motion for summary judgment, which was denied by the trial court, and affirmed on appeal. Pennsylvania National Mutual Casualty Ins. Co. v. Burnetti, 192 Ga.App. 593, 385 S.E.2d 446 (1989). We granted 1. OCGA § 33-34-7(a)(3) provides that "no-fault" benefits must be paid for economic loss......
  • Pennsylvania Nat. Mut. Cas. Ins. Co. v. Burnetti, A89A0656
    • United States
    • Georgia Court of Appeals
    • March 16, 1990
    ...& Butt, Eugene D. Butt, Madison, for appellee. POPE, Judge. This court having entered a judgment in the above-styled case at 192 Ga.App. 593, 385 S.E.2d 446 (1989) affirming the judgment of the trial court, and the judgment of this court having been reversed on certiorari by the Supreme Cou......

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