State Farm Mutual Automobile Ins. v. Deanna Myers

• Court: Court of Appeals of Georgia
• Decided: June 8, 2012
• Docket: A12A0489
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

June 8, 2012

In the Court of Appeals of Georgia A12A0489. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. MYERS et al.

MCFADDEN, Judge.

DeAnna Myers’s disabled adult ward, D. M., was the victim of a sexual battery

while riding in the backseat of a car. On D. M.’s behalf, Myers brought suit for

damages against, among others, the driver of the car. State Farm Mutual Automobile

Insurance Company brought a separate action seeking a declaratory judgment that an

automobile liability insurance policy it had issued to the driver’s wife did not cover

the damages alleged in the underlying suit. Myers and State Farm filed cross motions

for summary judgment in the declaratory judgment action. The trial court granted

summary judgment to Myers and denied summary judgment to State Farm, and State

Farm appeals. Because the damages alleged in the underlying suit did not arise out of the ownership, maintenance or use of the car, as required for coverage under the

policy, State Farm was entitled to summary judgment in the declaratory judgment

action. Accordingly, we reverse.

Summary judgment is proper where there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On

appeal from the grant or denial of summary judgment, we conduct a de novo review,

construing the evidence and all reasonable conclusions and inferences drawn

therefrom in the light most favorable to the nonmovant. Allstate Ins. Co. v. Neal, 304

Ga. App. 267 (696 SE2d 103) (2010).

The relevant facts are not in dispute. State Farm issued an automobile insurance

policy to Jesse Johnson. Her husband, Kenneth Johnson, used the car listed in the

policy to drive Medicaid patients to and from medical appointments on behalf of

LogistiCare, Inc. On February 20, 2008, he drove D. M. to a medical appointment.

On the return trip, D. M., Myers, and Kenneth Johnson’s brother, Dondi Johnson, sat

in the backseat of the car. When Myers fell asleep, Dondi Johnson repeatedly touched

D. M.’s breast and thigh without her consent. He later pled guilty to sexual battery for

these acts.

2 The critical issue in a declaratory judgment action to determine the parties’

obligations with respect to a liability insurance policy is whether the underlying suit

alleges a claim that is covered by the policy. O’Dell v. St. Paul Fire & Marine Ins.

Co., 223 Ga. App. 578, 579 (478 SE2d 418) (1996). The policy in this case provided

that State Farm would “pay damages which an insured becomes legally liable to pay

because of . . . bodily damages to others . . . caused by accident resulting from the

ownership, maintenance or use of [the insured’s] car; and . . . defend any suit against

an insured for such damages with attorneys hired and paid by us.” (Emphasis

omitted.) The parties to this appeal dispute whether the damages alleged in the

underlying suit “result[ed] from ... the use of [the] car” and thus were covered under

the policy. (Myers offers no argument that the alleged damages resulted from the

ownership or maintenance of the car, apart from its use.) We agree with State Farm

that the alleged damages were not covered because they did not result from use of the

car.

For an injury to result from the use of a motor vehicle, there must be such a

causal connection as to render it more likely that the injury “grew out” of the . . . use

of the vehicle. . . . [T]he connection must not be merely fortuitous. There must be

3 more of a connection between the use of the vehicle and the resulting injury than

mere presence in the vehicle when the injury was sustained.

(Citations and punctuation omitted.) Davis v. Criterion Ins. Co., 179 Ga. App. 235,

236 (345 SE2d 913) (1986).

That holding follows from Payne v. Twiggs County School Dist., 269 Ga. 361

(496 SE2d 690) (1998). There our Supreme Court held that a policy with similar

language to that at issue in this case did not cover an injury sustained when one

passenger of a school bus physically attacked another passenger while they were

riding in the bus. The Court explained:

[T]he facts alleged [by the plaintiff in the underlying suit] do not show a causal connection between her injuries and the use of [the] school bus. Nor do her allegations show that her injuries were sustained as the result of an accident involving [the] school bus. Rather, she alleges that her injuries were the proximate result of an attack inflicted by a fellow student. The school bus is only tangentially connected to [the plaintiff’s] injuries, and even then only to the extent that it was the situs of the attack.

Id. at 363 (2); see also Davis, 179 Ga. App. at 237 (finding injuries sustained by bus

driver who was stabbed by passenger did not arise out of use of bus, and thus were

not covered by liability insurance policy, where bus was “merely the unfortunate

4 location where [the assailant and the victim] crossed paths”); Washington v. Hartford

Accident &c. Co., 161 Ga. App. 431, 432 (288 SE2d 343) (1982) (finding no causal

connection between use of vehicle and injury, which bore no apparent relation to the

vehicle’s operation or use to which it was being put, but instead resulted from a

deliberate assault which took place in the vehicle simply because that was where the

victim happened to be when the assailant came “gunning” for him).

Myers asserts that D. M.’s injuries are covered under the policy because, “[b]ut

for the use of the vehicle, it is highly unlikely that Dondi Johnson would have been

able to sexually assault [D. M.] in the light of day,” arguing that the use of the

moving car enabled the assault by placing D. M. and Dondi Johnson together in a

confined space from which D. M. could not escape. In Payne, however, the proximity

of the attacker and victim within the confines of a moving vehicle did not create the

causal connection required for the injury to be covered under the policy. Payne, 269

Ga. at 363 (2).

Myers attempts to distinguish Payne in two respects. First, she argues the

movement of the car in this case was “inextricably linked” to the assault because the

smaller size of the vehicle and the presence of seatbelts meant that D. M. was not able

to avoid her attacker. Second, she argues that Payne did not involve claims against

5 the bus driver arising from the driver’s negligent operation of the bus. But in

Payne our Supreme Court cited with approval an earlier decision that forecloses

arguments founded on the opportunities afforded an assailant by the structure of the

vehicle or the inattention of the driver. See Payne, 269 Ga. at 363 (2) n. 5 (citing

Hicks v. Walker County School Dist., 172 Ga. App. 428, 429 (1) (323 SE2d 231)

(1984)). In Hicks this court held that the appellant’s injuries were not covered by a

policy insuring for injuries arising out of “the use of” a school bus where the

appellant “was injured when two fellow passengers ganged up and attacked [her]

while they were riding in the school bus, kicking and beating her for the entire length

of the forty-minute bus ride.” Hicks, 172 Ga. App. at 429 (1).

As were the school buses in Payne and Hicks, the car in this case was only

tangentially connected to D. M.’s injuries as the situs of the attack, and under the

rationale employed in those cases we find that the damages to D. M. alleged in the

underlying suit did not result from the use of the car. Payne, 269 Ga. at 363 (2);

Hicks, 172 Ga. App. at 429 (1). Consequently, State Farm was entitled to summary

judgment in the declaratory judgment action, and the trial court erred in denying its

motion for summary judgment and instead granting Myers’s motion.

Judgment reversed. Barnes, P. J., and Adams, J., concur.