Fireman's Fund Insurance v. Kerger

Pope, Judge. Plaintiff Brendan Joseph Kerger, Jr., brought suit against defendant Fireman’s Fund Insurance Company to recover no-fault benefits he alleged were due him under a policy of insurance issued to Caroline Clotfelter, as a result of injuries sustained in an incident involving Kerger, who was riding a bicycle, and an automobile driven by Clotfelter. Cross motions for summary judgment were made, and the trial court granted Kerger’s motion for summary judgment and denied that of Fireman’s Fund. This appeal consolidates our grant of Fireman’s Fund’s application for interlocutory appeal from the denial of its motion and the direct appeal from the grant of summary judgment to Kerger. The record reveals that the incident in question occurred on the morning of May 26, 1987, when plaintiff, an experienced and accomplished cyclist, was riding his bicycle in a southerly direction on East Brookhaven Drive in Atlanta, where Clotfelter’s residence is located. It is undisputed that when plaintiff first noticed Clotfelter’s car it was stopped in the middle of the northbound lane. As plaintiff approached the area where the vehicle was stopped, Clotfelter backed her car into her driveway, driving in reverse across the southbound lane where plaintiff was approaching, and “abruptly” turned in front of him. Plaintiff swerved sharply to avoid colliding with the car, as a result of which he hit a storm drain located in front of Clotfelter’s driveway. This, in turn, caused the front wheel of plaintiff’s bicycle to collapse and plaintiff to be thrown to the ground and injured. Plaintiff subsequently made demand upon defendant for medical expenses and lost wages under Clotfelter’s no-fault policy, which demands were refused. Defendant contends the trial court erred by denying its motion for summary judgment and granting summary judgment in favor of plaintiff, erroneously construing OCGA § 33-34-7 (a) to entitle plaintiff to no-fault benefits. OCGA § 33-34-7 (a) provides that “[t]he insurer of a motor vehicle with respect to which security is required by Code Section 33-34-4 shall pay basic no-fault benefits without regard to fault for economic loss resulting from: ... (3) [accidental bodily injury sustained by any . . . person as a result of being struck by the owner’s motor vehicle while a pedestrian in this state.” The parties agree that for the purposes of this case plaintiff must be considered a “pedestrian” under Georgia law. See OCGA § 33-34-2 (11). “The question then is whether [plaintiff] 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 [21] 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 SE2d 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. In the case at bar it is clear that [Clotfelter’s] vehicle was the movement or force which set in motion the chain of events which led to the [plaintiff’s] physical impact with [the storm drain]. This was sufficient to show that [plaintiff] was ‘struck by’ [Clotfelter’s] vehicle and the trial court properly denied [defendant’s] motion for summary judgment [and properly granted summary judgment to plaintiff on this basis.]” Pennsylvania Nat. &c. Ins. Co. v. Burnetti, 192 Ga. App. 593, 594 (385 SE2d 446) (1989) (cert, granted September 28, 1989, Clarke, P. J., Smith and Gregory, JJ., dissenting). Contrary to the assertions of the dissent, this case is indistinguishable from Burnetti. Here the plaintiff testified in his deposition that he was forced to suddenly swerve on his bicycle in order to avoid colliding with Clotfelter’s car when she “abruptly” turned in front of him, as a result of which he hit a large storm drain and was thrown from his bicycle to the ground. In Burnetti, the plaintiff was injured when he jumped out of the path of an oncoming vehicle, thus causing him to strike a nearby wall and pavement. In both cases, plaintiffs were faced with an untenable “choice” — take immediate evasive action or be struck by a car. In both cases, plaintiffs came into contact with an unforeseen obstacle in attempting to retreat from the path of the oncoming vehicle. In both cases plaintiffs were injured as a result of their contact with the unforeseen obstacle and as a direct result of their contact with the offending 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.” Burnetti, supra at 594. Consequently, the trial court properly denied defendant’s motion for summary judgment and properly granted summary judgment to plaintiff. The dissent also would overrule Burnetti, thereby retreating from the precedent announced last term by a majority of this court. [22] Specifically, the dissent incorrectly states that Cole v. N. H. Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988) is directly on point and that it construes the “struck by” language “in totally opposite fashion from that employed by the Burnetti majority.” In Cole, plaintiff, while walking back to her parked car, slipped and fell, striking her arm on the front of her stationary vehicle. Cole did not reject the “movement or force” analysis espoused in Johnson and relied on in Burnetti, but instead simply held that the movement or force which lead to the impact had to be that of the vehicle. Consequently, since the plaintiff herself, and not the stationary vehicle, was the movement or force in Cole, under the facts of that case recovery was not warranted. Likewise, the Supreme Court’s opinion in Collins v. Intl. Indem. Co., 256 Ga. 493 (349 SE2d 697) (1986) is not, as the dissent contends, “controlling authority” which requires a different result. In that case the central issue was whether or not the plaintiff was a pedestrian as that term is used in OCGA § 33-34-2 (11). As to the issue of whether the plaintiff was “struck by” the vehicle in question the majority simply held that that was a question for the jury. On motion for rehearing the majority also held that the propelled as well as the propelling vehicle can be found to have “struck” the pedestrian within the meaning of OCGA § 33-34-7. In sum, the cases cited by the dissent neither support its assertion that Burnetti should be overruled nor mandate the conclusion that summary judgment was improperly granted by the trial court in this case. Judgment affirmed. Carley, C. J., Deen, P. J., McMurray, P. J., and Benham, J., concur. Banke, P. J., Birdsong, Sognier and Beasley, JJ., dissent.