Universal Security Insurance v. Lowery

354 S.E.2d 840, 182 Ga. App. 125, 1987 Ga. App. LEXIS 1643

• Court: Court of Appeals of Georgia
• Decided: February 12, 1987
• Docket: 73865
• Status: Published

Opinions

Deen, Presiding Judge.

On January 17, 1985, the appellee, Yuwanna Lowery, was injured when a vehicle in which she was a passenger ran off the road and into a culvert. The vehicle was driven by Donald Belcher and insured by the appellant, Universal Security Insurance Company. Both Belcher and Lowery claimed that driving off the road had been necessary to avoid a head-on collision with another vehicle that had crossed the centerline. There was no physical contact between the two vehicles, and the other vehicle immediately left the scene. Both Lowery and Belcher filed claims under the uninsured motorist coverage of the policy issued by Universal Security, each corroborating the other’s description of how the incident occurred. The trial court denied Universal Security’s motion for summary judgment against Lowery in this case, and this interlocutory appeal by Universal Security followed. Held:

It was undisputed that the policy issued by Universal Security excluded coverage when there was no physical contact with the uninsured vehicle unless the facts could be corroborated “by competent evidence other than the testimony of any person having a claim under this or any similar insurance as a result of such accident.” OCGA § 33-7-11 (b) (2), however, eliminates the requirement of physical contact with an uninsured vehicle “if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” The issue presented by this case is whether, notwithstanding the policy exclusion, under the statute the eyewitness corroboration can be provided by another claimant involved in the incident.

Acknowledging that a literal reading of the statute justifies the trial court’s denial of summary judgment in this case, Universal Security contends that such a construction defeats the legislative intent of eliminating fraudulent claims of negligent drivers. See Martin v. John Doe, 174 Ga. App. 156 (329 SE2d 291) (1985); State Farm &c. Ins. Co. v. Carlson, 130 Ga. App. 27 (202 SE2d 213) (1973). However, with the passage of OCGA § 51-1-36, abolishing the guest passenger rule, the interests of driver and guest passenger are sufficiently antithetical as to check the possibility of collusion in situations such as in this case. We conclude that under OCGA § 33-7-11 (b) (2) the corroboration may be provided by another occupant in the vehicle in which the claimant was injured, and the policy’s exclusion is nugatory.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Sognier, Pope, Benham and Beasley, JJ., concur. Carley, J., concurs in the judgment only. Birdsong, C. J., dissents.