State Farm Fire & Casualty Co. v. Guest

417 S.E.2d 419, 203 Ga. App. 711, 92 Fulton County D. Rep. 136, 1992 Ga. App. LEXIS 606
CourtCourt of Appeals of Georgia
DecidedMarch 19, 1992
DocketA91A1771
StatusPublished
Cited by26 cases

This text of 417 S.E.2d 419 (State Farm Fire & Casualty Co. v. Guest) 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
State Farm Fire & Casualty Co. v. Guest, 417 S.E.2d 419, 203 Ga. App. 711, 92 Fulton County D. Rep. 136, 1992 Ga. App. LEXIS 606 (Ga. Ct. App. 1992).

Opinions

Cooper, Judge.

This interlocutory appeal arises out of an action brought by appellee to recover under the uninsured motorist provisions of an automobile insurance policy issued by appellant. Following the trial court’s denial of appellant’s motion for summary judgment, we granted the appeal to determine whether the “physical contact” requirement of the uninsured motorist statute was satisfied in this case.

Appellee was injured in a single-vehicle accident which occurred when appellee lost control of the car she was driving after she struck a tire assembly lying in the center lane of a highway. The car was insured under a policy which provided uninsured motorist coverage. Appellee filed a “John Doe” action against appellant alleging that the tire assembly detached from an unidentified truck whose driver negligently left the tire assembly in the middle of the highway. Appellant filed a motion for summary judgment contending that appellee was not entitled to recover because there had been no actual physical contact with an unknown motor vehicle as required by OCGA § 33-7-11 (b) (2).

OCGA § 33-7-11 (b) (2) provides: “A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown . . . and, in order for the insured to recover . . . where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” (Emphasis [712]*712supplied.)

We reject at the outset appellee’s argument that under a liberal reading of the statute, physical contact between an insured vehicle and a motor vehicle part constitutes actual physical contact with a motor vehicle. “Motor vehicle” is defined in OCGA § 33-34-2 (6) as “a vehicle having more than three loadbearing wheels . . . and driven by power other than muscular power.” In OCGA § 40-1-1 (33) “motor vehicle” is defined as “every vehicle which is self-propelled.” We are aware of no Georgia cases which have considered the issue of whether a tire assembly constitutes a motor vehicle, and in the absence of binding authority, we must read OCGA § 33-7-11 (b) (2) “according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending [its] operation. [Cit.]” Integon Indem. Corp. v. Canal Ins. Co.. 256 Ga. 692, 693 (353 SE2d 186) (1987). The tire assembly was neither a self-propelled vehicle nor a vehicle having more than three wheels, and even applying a liberal construction, we cannot conclude that the tire assembly was a motor vehicle within the meaning of the uninsured motorist statute.

However, our inquiry does not end here, for our conclusion that a tire assembly is not a motor vehicle does not necessarily preclude recovery where there is no direct physical contact between the unknown motor vehicle and the insured vehicle. Such an arbitrary preclusion of coverage would not be in accordance with “the intent of the legislature to create a reasonable rule which would reduce the possibility of fraudulent claims where the phantom vehicle did not cause actual physical contact, while still allowing an innocent automobile victim ‘coverage for accidents caused by unknown motorists where the unknown motorist vehicle does not physically contact the insured’s vehicle’. . . . [Cits.]” Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48 (3) (397 SE2d 466) (1990). We have found sufficient physical contact under the statute where an unknown vehicle strikes an intervening vehicle which then strikes the claimant’s vehicle. See State Farm &c. Ins. Co. v. Carlson, 130 Ga. App. 27 (1) (202 SE2d 213) (1973). Carlson, however, was decided under a previous version of OCGA § 33-7-11 (b) (2), which did not include the exception to the physical contact requirement providing for the corroboration by an eyewitness of the claimant’s description of how the accident occurred. The corroboration exception has been interpreted as imposing two requirements for recovery. First, the claimant’s description must include a claim that the accident was caused by an unknown vehicle and second, the corroboration must also implicate the unknown vehicle. Hoffman v. Doe, 191 Ga. App. 319, 320-321 (381 SE2d 546) (1989). This court has held that the exception to the physical contact requirement has not been met where the claimant did not see the unknown vehicle even though [713]*713an eyewitness to the accident saw the unknown vehicle (see Bell v. Coronet Ins. Co., 197 Ga. App. 211 (1) (398 SE2d 242) (1990)), and where the eyewitness could not corroborate, except by conjecture, the claimant’s contention that the accident was caused by an unknown vehicle. See National Surety Corp. v. O’Dell, 195 Ga. App. 374, 375 (393 SE2d 504) (1990). In a recent case decided by this court, the claimant contended that an unknown vehicle dropped a cardboard box which then caused another vehicle to strike claimant’s vehicle. We held that there could be no recovery because no one saw the box drop from the truck, therefore there were no eyewitnesses to corroborate the claimant’s description of the occurrence. See Scott v. Allstate Ins. Co., 200 Ga. App. 296 (407 SE2d 492) (1991).

Several jurisdictions with statutes comparable to OCGA § 33-7-11 (b) (2) have, in cases where there was no direct physical contact between the unknown vehicle and the insured vehicle, allowed recovery under what is known as the “indirect physical contact” doctrine. For example, where an object in the roadway is propelled into the insured’s vehicle by an unknown vehicle, courts have allowed recovery, reasoning that a substantial physical nexus exists between the unknown vehicle and the insured vehicle. See Southern Farm Bureau &c. Ins. Co. v. Brewer, 507 S2d 369 (Miss. 1987); Allied Fidelity Ins. Co. v. Lamb, 361 NE2d 174 (Ind. Ct. App. 1977). We are aware of no Georgia cases which have utilized the “indirect physical contact” doctrine or which have determined the question presented by this case of whether the collision with a motor vehicle component lying in the highway constitutes physical contact under OCGA § 33-7-11 (b) (2). However, we have discovered two cases from other jurisdictions which involved almost identical facts to those in this case. In Blankenbaker v. Great Central Ins. Co., 281 NE2d 496 (Ind. Ct. App.

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State Farm Fire & Casualty Co. v. Guest
417 S.E.2d 419 (Court of Appeals of Georgia, 1992)

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Bluebook (online)
417 S.E.2d 419, 203 Ga. App. 711, 92 Fulton County D. Rep. 136, 1992 Ga. App. LEXIS 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-fire-casualty-co-v-guest-gactapp-1992.