State Farm Mut. Auto. Ins. Co. v. Holmes, 70146

• Citation: 333 S.E.2d 917,175 Ga.App. 655
• Decision Date: 16 July 1985
• Docket Number: No. 70146,70146
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HOLMES et al.
• Court: United States Court of Appeals (Georgia)

Page 917

333 S.E.2d 917

175 Ga.App. 655

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HOLMES et al.

No. 70146.

Court of Appeals of Georgia.

July 16, 1985.

Rehearing Denied July 31, 1985.

Certiorari Denied Sept. 26, 1985.

Frank M. Gleason, Rossville, John W. Davis, Jr., Athens, for appellant.

Larry D. Ruskaup, Rossville, for appellees.

POPE, Judge.

On May 22, 1980 Mrs. Anderson filed suit against State Farm Mutual Automobile Insurance Company to recover survivor's benefits under the personal injury provisions of her husband's automobile insurance policy. Mr. Anderson drowned on March 21, 1980 after he drove his car onto a flooded road, and, realizing he could not get through, left the car in an attempt to reach safety and was swept away by the water current. Mrs. Anderson died on September 9, 1981, and the executors of her estate were substituted as parties plaintiff.

At the close of all the evidence at trial, State Farm's motion for a directed verdict was denied. The jury returned a verdict for plaintiffs in the amount of $50,000 in PIP benefits, $17,780 in pre-judgment interest, $100,000 in punitive damages and $15,000 in attorney fees. The trial court entered a judgment of $182,780 for plaintiffs, and State Farm appeals.

1. State Farm asserts that the trial court erred in overruling its motion for directed verdict because plaintiffs' claim does not fall within the coverage of OCGA § 33-34-7 of the Georgia Motor Vehicle Accident Reparations Act since Mr. Anderson was not "occupying" his car at the time of injury. OCGA § 33-34-7(a)(1) provides for the payment of benefits for economic loss resulting from "[a]ccidental bodily injury sustained ... by the insured ... while occupying any motor vehicle...." OCGA § 33-34-2(8) defines "occupying" for purposes of this chapter as being "in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle." As it is uncontested that Mr. Anderson was neither "upon" the auto nor "in the immediate act of entering" it, the determinative issues here are whether he was either "in" his car or "in the immediate act of ... alighting from" it at the time of death.

It is undisputed that Mr. Anderson was occupying his car at the time he encountered the hazardous flood waters which swept his car from the roadway and partially onto the shoulder some twelve to eighteen inches below, leaving the car immobilized and tilted. From the shoulder of the road, the drop was approximately twelve to fifteen feet. This was filled with flood waters which rose to three or four feet above the road. Officer Commers testified that he was patrolling the area at the time of the accident. When he arrived at the scene, a truck was attempting to back out of the flood waters from the side opposite to that entered by Mr. Anderson. Officer Commers was notified that Mr. Anderson's car had stopped in the water. Thinking that he could wade in halfway to meet Mr. Anderson, Officer Commers attempted to reach him but stopped due to the heavy current. He saw Mr. Anderson struggle against the waters to open the car door and then exit the vehicle. The force of the water pushed him against his car. When he reached the front of his car, he let go of it and began to walk through the flood waters toward Officer Commers. He made it three to six feet when he was swept away. He tried to stay afloat by using swimming movements, but he disappeared from sight approximately one hundred yards away. Mr. Anderson drowned and his body was recovered a few days later when the flood waters receded. Officer Commers also testified that because Mr. Anderson's car was already partially off the roadway and onto the three-feet-wide shoulder, the force of the flowing water could have swept the vehicle away into deep water.

Although Mr. Anderson was not ejected from his car, we find the reasoning of the opinion in Partridge v. Southeastern Fid. Ins. Co., 172 Ga.App. 466, 323 S.E.2d 676 (1984), to be persuasive and applicable to these facts. The court in Partridge, supra at 467, 323 S.E.2d 676, recognized that "occupancy has been extended beyond physical presence in the vehicle in voluntary self-removal or alighting cases (see Annot., 42 ALR3d 501 (1972))...." Thereafter, the court held that one "remains an occupant of the car from which he is ejected until he is able to remove himself to a neutral zone or is removed to a neutral zone...." Id. at 468, 323 S.E.2d 676. Further, the time interval between ejectment and such removal is not material. As in Partridge, Mr. Anderson encountered a perilous situation while driving and, thus, "occupying" his car. The ensuing emergency provided him a choice: staying "in" the car and being swept away, in which case he would certainly qualify as an "occupant," or "alighting" from the car in an attempt to reach safety. While it is clear that Mr. Anderson did not remain "in" his car, we view his efforts to escape the peril at hand by alighting from the car and heading for safety--that "neutral zone" described in Partridge --as one unbroken chain of events constituting the immediate act of alighting from the car. That he was able to move to the end of the car and a small number of feet beyond is immaterial. As in Partridge, he remained an occupant of the car until he could reach a neutral zone or could be removed to one. Therefore, plaintiffs were not precluded from recovery of no-fault benefits and State Farm was not entitled to directed verdict as a matter of law.

2. We have carefully viewed State Farm's remaining enumerations of error and find them to be without merit.

Judgment affirmed.

BANKE, C.J., and CARLEY, SOGNIER and BENHAM, JJ., concur.

DEEN, P.J., and BIRDSONG, P.J., concur in part and dissent in part.

BEASLEY, J., dissents.

McMURRAY, P.J., disqualified.

DEEN, Presiding Judge, dissenting in part.

"L'homme absurde est celui qui ne change jamais. (The absurd man is he who never changes.)" Wynn v. State, 127 Ga.App. 463, 466, 194 S.E.2d 124 (1972).

The writer originally concurred in the majority opinion. When the dissent was written I left the majority and joined the dissent. On Motion for Rehearing I am again switching and rejoining the majority opinion, except I would reverse the award of $100,000 in punitive damages and $15,000 attorney fees based on bad faith in failing to pay the claim when received.

As to bad faith " 'ordinarily these are questions for the jury, if there is no evidence of such frivolous or unfounded refusal to pay, or if the question of liability is a close one, the court for the furtherance of justice should see to it that a verdict that illegally carries a penalty for bad faith is not allowed to stand. [Cit.]' " (Emphasis supplied.) Georgia Farm Bureau Mut. Ins. Co. v. Matthews, 149 Ga.App. 350, 254 S.E.2d 413 (1979). See also GEICO v. Presley, 174 Ga.App. 562, 330 S.E.2d 779 (1985). Since I have taken three different positions in this case, and since we have a majority opinion and a dissenting opinion, it is suggested that the question of liability here is a "close one." For that reason, the award for punitive damages and attorney fees was inappropriate.

I am authorized to state that Presiding Judge BIRDSONG joins in this dissent.

BEASLEY, Judge, dissenting.

1. Was Anderson "in" his car at the time of injury? Anderson drove his car onto a flooded road. The car slipped and went off the shoulder; the rear axle rested on the pavement's edge, immobilizing the car. Anderson got out and walked along the side of the vehicle, wading through rapidly flowing water reaching nearly his waist. He stopped at the front of the car for a few minutes and then walked about three to six feet away from the car, lost his footing and was carried away by the current. Thus, Anderson was not physically "in" his car at the time of the accident, but was several feet away when he lost his footing. And, although Anderson was in the area of his car at the time of injury, this is insufficient to fall within the statutory definition of "occupying." OCGA § 33-34-2(8) does not define "occupying" as "in or adjacent thereto or nearby." To interpret it as such would be to import meaning beyond the plain language of the statute.

Was Anderson "in the immediate act of ... alighting from" his car at the time of injury? No. He had completed that act; he had alighted.

What is meant by the term "immediate" as found in OCGA § 33-34-2(8)? "One of the traditional functions of courts is to interpret and construe legislative enactments. Determining the intent of the legislative body by defining the ordinary or technical meaning of the terms it has used is commonplace. [Cits.]' [Cit.] 'Absent an adopted definition, the courts must determine the intended meaning.' [Cit.].... 'Where the language of a statute consists of common, ordinary words, and there is nothing to show that any unusual meaning is to be attached thereto, the court cannot deny the language its ordinary, usual signification; nor is the court required to give the language a forced and strained interpretation. [Cits.]' " Ga. Farm Bureau Mut. Ins. Co. v. Jones, 172 Ga.App. 164, 167(3), 322 S.E.2d 296 (1984).

The word "immediate" is such a common, ordinary word. It is defined in Webster's Dictionary as "not separate in space or time ... without delay; instant." Black's Law Dictionary gives a similar definition: "Present; at once; without delay; not deferred by any interval of time."

Nor can it be said that Anderson was "alighting from" his vehicle. Anderson had safely completed his act of exiting when he proceeded forward away from his car minutes later, deliberately abandoning it and proceeding to travel by foot. It was this latter action which resulted in his demise. It was not undertaken "without delay" in alighting from the vehicle, nor was it part of the "alighting from" action or activity.

In accordance with the above definitions, I conclude that, as a matter of law,...