Lovelady v. Alfa Mutual Insurance

503 S.E.2d 349, 233 Ga. App. 117, 98 Fulton County D. Rep. 2632, 1998 Ga. App. LEXIS 915
CourtCourt of Appeals of Georgia
DecidedJune 26, 1998
DocketA98A0729
StatusPublished
Cited by1 cases

This text of 503 S.E.2d 349 (Lovelady v. Alfa Mutual Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lovelady v. Alfa Mutual Insurance, 503 S.E.2d 349, 233 Ga. App. 117, 98 Fulton County D. Rep. 2632, 1998 Ga. App. LEXIS 915 (Ga. Ct. App. 1998).

Opinion

Beasley, Judge.

On Friday, January 28, 1994, around mid-day, defendant Pinkiney James was driving his employer’s tractor-trailer northbound on Interstate 85 in heavy traffic when he swerved and his truck jackknifed and hit the concrete barrier separating the northbound and southbound lanes.

Plaintiffs Joyce and Emmett Lovelady, who were traveling in the second lane to the right of the barrier, collided with the jackknifed truck. They never saw the vehicle of the unidentified driver who allegedly caused James to swerve.

The Loveladys sued James, James’s employer, its insurer, and driver John Doe. They also served Alfa Mutual Insurance Company, their uninsured motorist carrier.

Alfa moved for summary judgment on the ground that the Loveladys were unable to describe how the collision occurred with regard to the unknown driver as required by OCGA § 33-7-11 (b) (2). The court granted summary judgment in Alfa’s favor. The Loveladys enumerate as error the application of the statute to preclude their uninsured motorist claim. As parties opposing summary judgment, they are given the benefit of all reasonable doubt, and the evidence and all inferences and factual conclusions arising from the evidence is construed most favorably toward them.1

Alfa’s motion for summary judgment was based solely on the [118]*118application of Georgia law. On appeal Alfa suggests that Georgia law may not apply but cites no Alabama law in support of its position and thus it is not brought to bear on the dispute.

As a matter of Georgia law, an unknown motorist is uninsured and insurers are required to provide coverage for accidents they cause when one of two circumstances is present.2 Either there must have been “actual physical contact” between the insured’s person or property and the vehicle of the unknown owner or operator or “the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.”3 The issue is whether there is any evidence, including reasonable inferences, of the latter in this case. If not, plaintiffs’ insurer has shown the absence of an element of plaintiff’s case and is entitled to summary judgment.4

There is clearly evidence that the negligence of an unknown driver, either alone or in concert with negligence of the tractor-trailer driver James, proximately caused the collision with plaintiff’s car. So the requirement for eyewitness testimony is met.5 The case turns on a construction of the statutory requirement of “the description by the claimant of how the occurrence occurred.”

James’ testimony by affidavit is that he was driving within the speed limit when, without warning, a white vehicle driven by an unknown person swerved into his lane of travel, causing him to brake and attempt to maneuver the tractor-trailer by steering to the left to avoid hitting the vehicle. The tractor-trailer jackknifed as a result and James lost control, according to him, until the tractor-trailer stopped after striking the median wall. This evidence is corroborated by the deposition testimony of Paul Bland, who was driving a tractor-trailer behind James. He testified that a six-wheeled truck swerved quickly and erratically into James’ lane for some unknown reason, close in front of James, and James braked and swerved to the left to avoid colliding with it. The truck did not slow [119]*119down or stop. James’ vehicle jackknifed, kept moving to the left, and bounced off the median wall. Loveladys’ car hit it at its wheels and bounced. Up to the time of his deposition, Bland did not talk to James except at the scene.

The claimants described in their complaint the involvement of the unknown vehicle and alleged that the driver “negligently and carelessly changed lanes in front of [James] and left the scene of the subsequent collision.” They sought judgment against him as well as against the other defendants. Although neither plaintiff saw the unknown vehicle, one of their theories of recovery is based on the evidence that the incident occurred as a result of the actions of its driver in moving it into the path of James’ tractor-trailer. Thus their description of how the occurrence occurred satisfies the statutory provision for uninsured motorist coverage, as their description is corroborated by not one but two eyewitnesses.

In reaching this conclusion we considered the requirement in the context of its history, purpose, and wording. The sentence in the statute which is the focus here was added by the legislature “so as to provide for coverage for accidents caused by unknown motorists where the unknown motorist’s vehicle does not physically contact the insured’s vehicle.”6 Previously, relief for the injured parties could only be obtained if there was “actual physical contact.” The addition is in keeping with the State’s public policy of financially protecting innocent motorists from the negligence of those vehicle operators who cause injury or property damage and leave the scene unidentified.7

In broadening the scope of coverage, the legislature did not use language indicating that the claimant must be an eyewitness to the unknown vehicle’s involvement. It did not designate personal testimony of claimant as the only allowable source of the description required. Nor did it indicate an intent to exclude coverage when there is positive evidence that the unknown operator of a vehicle was at fault. OCGA § 33-7-11 (b) (2) is tailored only to preclude mandated uninsured coverage when it would rest merely on the claimant’s own testimony and there was no actual physical contact. The intent is patently to guard against fraudulent claims.8 The construction reached here harmonizes with the Supreme Court’s approach in interpreting OCGA § 33-7-11 (b) (2), which was to broadly construe it so as to include corroboration by an interested, and not solely a disin[120]*120terested, witness.9

The infliction of injuries and property damage by drivers who leave without a trace is not a rare event, as demonstrated by the frequency of such cases in this Court. Some of the court’s opinions interpret and apply the sentence which governs this case, and none has been cited which militates against our conclusion. As stated previously, “[i]f the General Assembly had intended to require [eyewitness testimony by the claimant], it could have so specified.”10 The description need not be in the claimant’s testimony but may also be in the pleadings, as in this case, although merely “filing suit against John Doe does not constitute a ‘description by the claimant of how the occurrence occurred.’ ”11

Atlanta Cas. Ins. Co. v. Crews, supra, supports the viability of the Loveladys’ claim and we use the same dictionary definition of the ordinary common word “description” as used in that case: “A ‘description’ is ‘a statement, account, or picture in words that describes; descriptive representation; the act or method of describing.’ ”12 Crews

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527 S.E.2d 795 (West Virginia Supreme Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
503 S.E.2d 349, 233 Ga. App. 117, 98 Fulton County D. Rep. 2632, 1998 Ga. App. LEXIS 915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lovelady-v-alfa-mutual-insurance-gactapp-1998.