USAA Property & Cas. Ins. Co. v. Wilbur

• Decision Date: 11 January 1993
• Docket Number: No. A92A1909,A92A1909
• Court: Georgia Court of Appeals
• Parties: USAA PROPERTY & CASUALTY INSURANCE COMPANY v. WILBUR.

Page 49

427 S.E.2d 49

207 Ga.App. 57

USAA PROPERTY & CASUALTY INSURANCE COMPANY v. WILBUR.

No. A92A1909.

Court of Appeals of Georgia.

Jan. 11, 1993.

Dennis, Corry, Porter & Gray, William E. Gray II, Robert G. Ballard, Atlanta, for appellant.

Nicholas E. Bakatsas, Marietta, for appellee.

BEASLEY, Judge.

Defendant USAA Property & Casualty Insurance Company was granted interlocutory appeal from the trial court's denial of its motion for summary judgment. Plaintiff Wilbur claims $50,000 of survivor's no-fault benefits (PIP) following his wife's death. He also alleges that USAA acted in bad faith in refusing the claim and seeks a 25 percent penalty, attorney fees, and punitive damages in the amount of $5,000,000. USAA denied the claim on the ground that the injury and death to plaintiff's wife resulted from intentional criminal acts and not the operation, maintenance, or use of the vehicle.

Wilbur's wife was kidnapped in a grocery store parking lot by two men looking for a car, shoved into the insured vehicle, assaulted and raped in the vehicle, and driven to Kentucky. There she was forced to exit the car and walk to a nearby patch of woods, where she was stabbed to death. The question of law is whether or not there is no-fault coverage under such circumstances.

The Georgia Motor Vehicle Accident Reparations Act, OCGA § 33-34-1 et seq., imposed two requirements for no-fault recovery. Kelley v. Integon Indem. Corp., 253 Ga. 269, 274, 320 S.E.2d 526 (1984). First, the accidental bodily injury must occur while the victim is "occupying" the insured vehicle. Ga.Laws 1975, p. 1202, § 6 (formerly found at OCGA § 33-34-7 (1990)); Ga.Laws 1974, p. 113, § 7 (formerly found at OCGA § 33-34-7 (1990)). The occupancy requirement is met when the victim is "in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle." Ga.Laws 1974, p. 113, § 2 (formerly found at OCGA § 33-34-2(8) (1990)). Second, the accidental bodily injury must arise out of the operation, maintenance or use of the vehicle as a vehicle. Ga.Laws 1974, p. 113, § 7 (formerly found at OCGA § 33-34-7(a) (1990)); Ga.Laws 1987, p. 1116, § 1 (formerly found at OCGA § 33-34-2(9) (1990)).

The occupancy requirement has been broadly construed. For example, one remains an occupant of the car from which one is involuntarily ejected after an accident until one is able to remove oneself, or be removed, to a neutral zone. State Farm Mut. Auto. Ins. Co. v. Holmes, 175 Ga.App. 655, 333 S.E.2d 917 (1985). See also Partridge v. Southeastern Fidelity Ins. Co., 172 Ga.App. 466, 323 S.E.2d 676 (1984).

The instant case differs from Partridge and Holmes in that it involves intentional criminal conduct resulting in the victim's death. The victim was murdered away from the insured vehicle, in a patch of woods. She was, however, forced to exit the car by at least one assailant and fatally injured before she could remove herself to a neutral zone. This would meet the involuntary ejection requirement of occupancy articulated in Holmes, if it is broadly construed.

Mrs. Wilbur's death might also be deemed an accident under Georgia insurance law. An intentional act may be an accident when, viewed from the victim's perspective, it is something unforeseen, unusual, and unexpected and not caused by the victim's own misconduct. American Protection Ins. Co. v. Parker, 150 Ga.App. 732, 733, 258 S.E.2d 540 (1979). See also State Auto. Mut. Ins. Co. v. Nichols, 710 F.Supp. 1359, 1362 (N.D.Ga.1989) (murder of insured on floorboard of insured vehicle held to be accident according to Georgia insurance law).

Assuming without deciding that Wilbur's claim meets the occupancy and accident requirements, the impediment to recovery is the additional requirement that the death arise from the operation, maintenance or use of the motor vehicle. Georgia law requires a causal connection between the use of the vehicle and the injury sustained. Westberry v. State Farm Mut. Auto. Ins. Co., 179 Ga.App. 700, 701, 347 S.E.2d 688 (1986). See also King v. St. Paul Fire, etc., Co., 201 Ga.App. 851, 412 S.E.2d 614 (1991). Wilbur's position is that such connection exists because his wife's assailants wanted to steal a car and, but for the car, his wife would not have been kidnapped. USAA asserts that Mrs. Wilbur's injuries were too remote to the use of her vehicle, especially since she was not murdered inside the car.

This case resembles cases involving gunshot injuries in which a victim occupies the insured vehicle. In deciding whether a gunshot wound sustained by an insured in a motor vehicle can be considered an injury arising out of the use of the vehicle, the general rule is that " 'where a...