Collins v. International Indemnity Co.

Deen, Presiding Judge.

On May 2, 1981, at approximately 1:30 a.m., Michael Collins and Dennis Hendry left a restaurant on Collins’ motorcycle and headed east on Bay Street towards the Bay Street Viaduct in Savannah. Eventually, Collins and Hendry somehow were either thrown from or knocked off the motorcycle as they crossed the viaduct. At approximately 3:00 a.m., as he was driving west on the viaduct, Ronald Lovett noticed parts of a motorcycle and the bodies of Collins and Hendry on the road. Lovett alerted eastbound traffic to the problem by blinking his lights off and on; turned around and drove back up the viaduct; parked his car across the westbound lanes (leaving on his headlights and hazard lights); and got out to help. Collins’ body was *598about 5 to 10 yards from Lovett’s parked vehicle, while Hendry was 5 to 10 yards farther to the west.

Another vehicle heading west on the viaduct then struck Lovett’s vehicle and came to rest approximately 45 feet from the point of impact; Lovett’s vehicle was spun in a counterclockwise direction and came to rest about 32 feet from the point of impact. Lovett then noticed that the bodies of Collins and Hendry were in different positions than he had originally observed. Hendry survived but could not remember the details of the incident. Collins was pronounced dead on the scene.

Subsequently, Collins’ estate commenced this action seeking recovery of no-fault benefits under the Georgia Motor Vehicle Accident Reparations Act, OCGA § 33-34-1 et seq., contending that Collins was a pedestrian at the time he was struck by either Lovett’s vehicle or the second vehicle (or both). The trial court granted summary judgment for the appellee, International Indemnity Company (Lovett’s insurer), and Collins’ estate appeals. Held-.

OCGA § 33-34-7 (3) provides that an insurer shall pay no-fault benefits for “ [accidental bodily injury sustained by any other person as a result of being struck by the owner’s motor vehicle while a pedestrian in this state.” OCGA § 33-34-2 (11) defines pedestrian as “any person not occupying a motor vehicle or a motorcycle . . . .” Collins’ estate thus could recover no-fault benefits only if, at the time he was allegedly struck by Lovett’s vehicle, Collins was a pedestrian and not an occupant of the motorcycle.

In Partridge v. Southeastern Fidelity Ins. Co., 172 Ga. App. 466, 467 (323 SE2d 676) (1984), this court held that “an occupant of a motor vehicle who is accidentally ejected from that motor vehicle remains an occupant of the vehicle from which he is ejected until he is able to remove himself to a neutral zone or is removed to a neutral zone.” Neither party disputes the applicability of Partridge to the instant case involving the apparently involuntary ejection of an occupant of a motorcycle, although the appellant contends that Collins had in effect been removed to a neutral zone by virtue of Lovett’s act of parking his car in the roadway to protect Collins and Hendry from oncoming traffic. We are unable to accept that contention. Because no one removed Collins and Hendry to a neutral zone, and Collins and Hendry obviously not having done so themselves, under Partridge v. Southeastern Fidelity Ins. Co., supra, they remained occupants of the motorcycle. Accordingly, the trial court properly granted summary judgment for the insurer.

Judgment affirmed.

Banke, C. J., Birdsong, P. J., Sognier, Pope and Benham, JJ., concur. McMurray, P. J., Carley and Beasley, JJ., dissent.