First Financial Insurance Co. v. Rainey

394 S.E.2d 774, 195 Ga. App. 655, 1990 Ga. App. LEXIS 688

• Court: Court of Appeals of Georgia
• Decided: April 11, 1990
• Docket: A90A0137
• Status: Published

Opinions

Banke, Presiding Judge.

The appellant issued a policy of motor vehicle insurance to appellee Willie Calhoun which provided the minimum no-fault coverage required by OCGA § 33-34-4 (a) (2). While this policy was in force, a large limb fell on the insured vehicle, injuring Calhoun’s minor grandson, Max Ray Rainey, who was occupying it at the time. This accident occurred at a mobile home park where Mr. Calhoun’s adult son and some other grandchildren were present. Accompanied by Max, Mr. Calhoun had driven to the mobile home park with the intention of picking up these other relatives and bringing them to his home. Upon their arrival, Max had gotten out of the vehicle and played for a brief period, until the others were ready to leave. His grandfather had then instructed him to get back in the car, and Max had obeyed, opening the door on the passenger side of the vehicle and climbing up onto the seat. Immediately after he did so a loud cracking noise was heard, and the limb, which was about four inches in diameter, fell onto the open door of the vehicle. A portion of the limb was thereby deflected into the passenger compartment, where it struck Max on the back of the head.

The accident occurred on September 25, 1988. On September 30, 1988, a claim was made for the $2,500 in basic medical benefits provided by the policy; and on November 18, 1988, the appellant filed a declaratory judgment action seeking a determination that Max’s injuries were not covered because they had not arisen “out of the operation, maintenance, or use of” the insured vehicle within the contemplation of OCGA § 33-34-2 (1). Named as defendants in the declaratory judgment action were the appellees herein, consisting of Max’s mother, both individually and as his natural guardian, and Mr. Calhoun. They counterclaimed to recover the $2,500 in medical benefits allegedly due under the policy, as well as to recover a bad-faith penalty, attorney fees and punitive damages pursuant to OCGA § 33-34-6. The trial judge granted their motion for summary judgment on the basic benefits claim and allowed the other claims to go to a jury, which returned a verdict in their favor for a 25 percent bad-faith penalty in the amount of $675, attorney fees in the amount of $8,000, and punitive damages in the amount of $50,000. This appeal was taken from the denial of the appellant’s motions for new trial or judgment notwithstanding the verdict. Held:

1. The appellant contends that the trial court erred in granting summary judgment to the appellees on their claim for basic benefits. We disagree.

Motor vehicle insurers are statutorily required to “pay basic no-fault benefits without regard to fault for economic loss resulting from: . . . (2) Accidental bodily injury sustained . . . while occupying the owner’s motor vehicle. . . .” OCGA § 33-34-7 (a). The term “ ‘[accidental bodily injury’ means bodily injury . . . arising out of the operation, maintenance, or use of a motor vehicle which is accidental as to the person claiming basic no-fault benefits. . . .” OCGA § 33-34-2 (1). “ ‘Operation, maintenance, or use of a motor vehicle’ means operation, maintenance, or use of a motor vehicle as a vehicle. . . .” OCGA § 33-34-2 (9).

It is apparent without dispute that Max was occupying the insured vehicle at the time he was injured. Thus, the inquiry turns to whether his injuries arose out of the operation, maintenance, or use of the insured vehicle “as a vehicle” within the contemplation of OCGA § 33-34-2 (1) & (9). “[T]he term ‘arising out of’ does not mean proximate cause in the strict legal sense, nor require a finding that the injury was directly and proximately caused by the use of the vehicle, nor that the insured vehicle was exerting any physical force upon the instrumentality which was the immediate cause of the injury. . . . [A]lmost any causal connection or relationship will do. . . . ‘The question to be answered is whether the injury “originated from,” “had its origin in,” “grew out of,” or “flowed from” the use of the vehicle.’ ” Southeastern Fid. Ins. Co. v. Stevens, 142 Ga. App. 562, 563-564 (236 SE2d 550) (1977) (upholding award of no-fault benefits to insured whose son was killed when pistol he was apparently handling discharged accidentally as vehicle turned off of pavement onto bumpy, unpaved road).

In determining whether a sufficient causal connection exists between the vehicle and the injuries, this court has stated that the injury will be deemed to have arisen from the operation or use of the insured vehicle if it would not have occurred “ ‘but for’ the operation, maintenance or use of the [vehicle]. . . .” Franklin v. Southern Guar. Ins. Co., 160 Ga. App. 279, 282 (287 SE2d 274) (1981). The insured in Franklin died of a heart attack while driving the insured vehicle. Applying this “but for” test, we concluded that a jury issue existed as to the insurer’s liability for death benefits, noting that “ ‘ “[t]he courts have been liberal in finding this ‘but for’ relationship and in allowing recovery against automobile carriers. . . .” [Cit.]’ ” Id. citing Payne v. Southern Guar. Ins. Co., 159 Ga. App. 67, 68 (282 SE2d 711) (1981).

A review of cases decided since Franklin reveals that this liberality has not abated. In Kicklighter v. Allstate Ins. Co., 175 Ga. App. 586, 591 (333 SE2d 670) (1985), for example, an insured injured in a fire ignited by a defective lantern as he was sleeping in a camper-van was held entitled to benefits as a matter of law, based on a determination that his “use of the vehicle at the time of his injury was clearly within the normal and intended purpose of the vehicle.” Accord Denison v. Allstate Indem. Co., 258 Ga. 269 (367 SE2d 801) (1988), rev’g Allstate Indem. Co. v. Denison, 185 Ga. App. 390 (364 SE2d 103) (1987) (where same result was reached in similar case involving van which had not been modified to serve as a camper). See also State Farm Mut. &c. Ins. Co. v. Holmes, 175 Ga. App. 655 (333 SE2d 917) (1985) (affirming award of death benefits, punitive damages and attorney fees to spouse of insured who drowned in flood waters after exiting vehicle). For a review of other cases, see generally Darroch & Barber, Motor Vehicle Ins. Law & Claims in Ga., § 34-2.

In support of its contention that a connection did not exist in this case between the injuries and the operation, maintenance or use of the vehicle, the appellant relies on a series of cases disallowing benefits to or on account of persons who were criminally assaulted while occupying an insured vehicle. See Davis v. Criterion Ins. Co., 179 Ga. App. 235 (345 SE2d 913) (1986); Weeks v. Auto-Owners Ins. Co., 175 Ga. App. 725 (334 SE2d 325) (1985); Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829 (318 SE2d 670) (1984); Washington v. Hartford Acc. &c. Co., 161 Ga. App. 431 (288 SE2d 343) (1982); Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700 (347 SE2d 688) (1986). With the exception of Weeks, the controlling factor in each of these cases clearly was the intentional and deliberate nature of the assault, “ ‘which took place in the vehicle simply because that is where the (victims) happened to be’ ” at the time. Bennett, supra, 170 Ga. App. at 830. Compare Payne v. Southern Guar. Ins. Co., 159 Ga. App. 67, supra (holding that claimant was entitled to benefits as a matter of law where he was shot by firearm which discharged accidentally as it was being loaded into vehicle by a companion). Although the victim in Weeks was not assaulted deliberately but was struck “accidentally” by a bullet meant for a companion who was standing outside the vehicle, two of the three judges who participated in that decision stated in a special concurrence that the overriding reason the victim was not entitled to no-fault benefits was because she had been occupying the vehicle in furtherance of a criminal enterprise when the incident occurred.

We do not consider any of these cases to be apposite to the facts before us, since the injuries in the present case did not result from a criminal assault, and the injured claimant was not occupying the vehicle for a criminal purpose. Thus, applying the general rule that an occupant’s injuries will be deemed covered if they would not have occurred “but for” the use, operation or maintenance of the vehicle as a vehicle, we affirm the trial court’s conclusion that the appellant’s liability for basic benefits was established as a matter of law. Compare Leverett v. Aetna Cas. &c. Co., 157 Ga. App. 175 (276 SE2d 859) (1981) (disallowing claim by insured who fell off truck while standing on it in attempt to pick plums); Cole v. New Hampshire Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988) (disallowing claim by insured who was not occupying vehicle when injured but slipped and fell while walking back to her vehicle after paying for gas at gas station).

2. The appellant enumerates as error the trial court’s denial of its motion for summary judgment on the appellees’ claim for a bad-faith penalty, punitive damages and attorney fees. However, the denial of a motion for summary judgment becomes moot after judgment is entered on a jury verdict. See Gaines v. Crompton & Knowles Corp., 190 Ga. App. 863, 867 (7) (380 SE2d 498) (1989); Atlanta Car For Hire Assn. v. Whited, 179 Ga. App. 893, 894 (1) (348 SE2d 102) (1986). Consequently, this enumeration of error presents nothing for review.

3. The appellant contends that the trial court erred in denying its motion for directed verdict on the claim for a bad-faith penalty, punitive damages and attorney fees, arguing that its defense to the basic benefits claim, though unsuccessful, was reasonable as a matter of law.

“The question of the insurer’s good faith (or lack thereof) is one of fact for the jury, and the jury’s determination on this issue should be upheld on appeal if there is any evidence to support it. [Cits.] A jury award of punitive damages for wrongful refusal to pay a claim is thus entitled to great weight on appeal and should be disturbed only if the evidence at trial does not support an inference of bad faith on the insurer’s part. [Cits.] Application of an ‘any evidence’ standard of review to § 33-34-6 . . . jury awards is consistent with the policy, previously recognized by this court, of encouraging prompt payment of no-fault insurance claims.” Binns v. MARTA, 250 Ga. 847, 848 (301 SE2d 877) (1983).

The appellant argues that its good faith in litigating the claim is conclusively established by the absence of any legal precedent squarely holding that an accident of this nature is covered. However, the fact that an insurer is litigating an issue of “first impression” is not sufficient, in and of itself, to establish that it is doing so in “good faith.” See Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45, 51 (244 SE2d 573) (1978). As previously indicated, the cases upon which the appellant places primary reliance are clearly distinguishable in that they involved criminal assaults. The appellant argues, however, that these cases “stand for the firmly established proposition of law that an injury will not be deemed to arise out of the operation, maintenance, or use of a motor vehicle if the claimant has been struck by a foreign object while occupying a vehicle, if the expulsion of the foreign object bears no connection to the operation, maintenance, or use of the vehicle.” We cannot agree with this contention. In the first place, such a principle of law would be at odds with this court’s repeated holdings that “the term ‘arising out of’ does not. . . require a finding . . . that the insured vehicle was exerting any physical force upon the instrumentality which was the cause of the injury.” Southeastern Fid. Ins. Co. v. Stevens, supra, 142 Ga. App. at 563-4. See also Payne v. Southern Guar. Ins. Co., supra, 159 Ga. App. at 68; Insurance Co. of North America v. Dorris, 161 Ga. App. 46, 47 (288 SE2d 856) (1982). Furthermore, it is not even necessary for an injury to be caused by contact with an “instrumentality” in order for it to be treated as compensable. See, e.g., Franklin v. Southern Guar. Ins. Co., supra, 160 Ga. App. at 279 (where insured died of heart attack while driving insured vehicle). Accordingly, we can find no support in the case law for the principle relied on by the appellant.

There is no dispute over the fact that the claimant was occupying the insured vehicle for use as a vehicle when the injury occurred, nor is there any dispute over the fact that he incurred medical expenses in excess of $2,500 as a result of his injuries. The only dispute has been over the legal/metaphysical issue of whether a causal connection existed between the child’s injuries and his occupancy and use of the vehicle. Given the prior holdings of this court that “almost any causal connection or relationship will do,” (see, e.g., Southeastern Fid. Ins. Co. v. Stevens, supra, 142 Ga. App. at 564; Franklin v. Southern Guar. Ins. Co., supra, 160 Ga. App. at 282), we must reject the appellant’s argument that a “close question” was presented on this issue. However, there is an additional factor in this case which the jury undoubtedly took into consideration in concluding that the appellant had failed to meet its burden of proof on the good-faith issue and which persuades us not to disturb the jury’s verdict. The claim was for only $2,500, the minimum amount of medical benefits coverage required by law. See OCGA § 33-34-4 (a) (2). In filing the declaratory judgment action, the appellant clearly stood to incur litigation expenses and attorney fees substantially in excess of this amount (assuming, of course, that the appellees had the will and resources to pursue the matter); and since the occurrence which gave rise to the child’s injuries may fairly be categorized as a freak accident, its decision to do so cannot reasonably be explained by a need for guidance in dealing with future claims of the same nature. Surely, the requirement of good faith demands some sense of proportionality in these matters. Taking all of these considerations into account, we have no hesitation in holding that the jury’s verdict was supported by the evidence. Accord Insurance Co. of North America v. Smith, 189 Ga. App. 353 (1) (375 SE2d 866) (1988).

4. The appellant contends that the trial court erred in allowing its trial counsel to be called as a witness by the appellees for cross-examination on the issue of whether it had acted in reliance on legal advice in bringing the declaratory judgment action. The appellant argues both that the testimony in question was immaterial and that “it was improper for the trial court to compel [counsel’s] testimony [without disqualifying] him as trial counsel for the appellant.” However, the appellant’s counsel did not object to the questioning on the ground that it lacked relevance to the issues being tried, nor did he move for a mistrial, seek to withdraw as counsel or request a continuance to enable the appellant to secure other counsel. Accordingly, the issues raised by this enumeration of error were not preserved for appeal.

5. In his written order disposing of the parties’ cross-motions for summary judgment, the trial judge made certain comments to the effect that he believed the appellant had litigated the coverage issue in good faith “based upon an uncertainty created by certain statutory interpretations as rendered by the appellate courts,” with the result that he did not consider the case to be an appropriate one for an assessment of penalties or other damages for bad faith. The court identified these comments at the outset as “an editorial and instructional aide” and ended them with the following statement: “These final comments are offered gratuitously and are not binding as to the parties in this action.” The appellant nevertheless contends that the court was precluded by these comments from allowing the claims for a bad-faith penalty, punitive damages and attorney fees to be put to the jury. This contention is patently without merit. We have previously held that the evidence was legally sufficient to allow these claims to go to the jury, and the trial judge obviously reached the same conclusion or he would not have denied the appellant’s motion for directed verdict.

6. The appellees have moved this court to remand the case to the trial court, in the event of an affirmance, for an assessment of additional attorney fees for the cost of their legal representation on appeal. The appellant opposes the motion, arguing that OCGA § 5-6-6 and Court of Appeals Rule 26 (b) establish the exclusive remedy in this court for a frivolous appeal. However, the appellees do not seek to recover their attorney fees on appeal based on a contention that the appeal was frivolous; rather, they contend these fees are recoverable under OCGA § 33-34-6 as part of the total attorney fees incurred by them due to the appellant’s refusal to pay their claim for basic no-fault benefits.

In construing the predecessor to OCGA § 33-4-6, a Code section closely analogous to § 33-34-6 dealing with bad faith in refusing to pay insurance claims generally, this court has held that all of the work done on the case, including work done on appeal, may be considered in awarding attorney fees. See Reserve Life Ins. Co. v. Ayers, 103 Ga. App. 576, 578 (120 SE2d 165) (1961), aff’d 217 Ga. 206 (121 SE2d 649) (1961). Based on that decision, we hold that the appellees in this case are entitled to recover their reasonable attorney fees on appeal pursuant to OCGA § 33-34-6, and we consequently direct the trial court to conduct further proceedings upon the return of the remittitur for the purpose of assessing such attorney fees.

Judgment affirmed and case remanded with direction.

McMurray, P. J., Sognier, Pope, Beasley and Cooper, JJ., concur. Carley, C. J., Deen, P. J., and Birdsong, J., dissent.