Collins v. International Indemnity Co.

Beasley, Judge,

dissenting.

It was stipulated that Lovett “parked his car across the two westbound lanes facing in an eastwardly direction toward Savannah. This was done to protect the bodies from the traffic moving in a westwardly direction on the Viaduct. He turned on his emergency flashers and left the headlights on. Lovett’s vehicle was white and easily visible to any vehicles coming toward him.” Thus, there is evidence that he created a neutral zone, changing the scene from one of obvious danger to the two people who were lying in the middle lane of the roadway with nothing to stop oncoming traffic from hitting them, to one protected by physical warnings of lights and the obstacle of his own vehicle.

To confine “neutral zone” to a physical removal of the persons from the place they had come to rest after involuntarily leaving the motorcycle misses the distinction. It is a change in the nature of the person’s relationship with the covered vehicle which is crucial. Was he still an “occupant” in the eyes of the law, or did he become a member of that other class, “pedestrians,” covered under OCGA § 33-34-2 (11). The term “pedestrian” was broadly construed in Garlin v. Thomas, 90 Ga. App. 835, 837 (2) (84 SE2d 491) (1954) and recognized as broad in Prince v. Cotton States Mut. Ins. Co., 143 Ga. App. 512 (239 SE2d 198) (1977). “Occupying” means to be in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle.” OCGA § 33-34-2 (a). Lovett’s actions, taken for just the very purpose of creating safety and establishing protection, altered the relationship of Collins vis-a-vis the motorcycle. It is at least a jury question. See Cotton States Mut. Ins. Co. v. Statiras, 157 Ga. App. 169, 173 (276 SE2d 853) (1981).

The occupant remains an “occupant” even after physically leaving the vehicle, unless the act of leaving is his own or, having left involuntarily, he comes into a neutral zone by his or some other intervention. Partridge v. Southeastern Fidelity Ins. Co., 172 Ga. App. 466 (323 SE2d 676) (1984) is to be read this way, in my opinion. If Lovett had dragged the bodies to the side of the roadway, application of the majority’s theory would lead to the conclusion that Collins had been removed to a neutral zone and so was no longer an occupant and was therefore a covered pedestrian. The physical moving of the bodies is not what would make the difference, however; it would be the creation of the zone of neutrality, which it can be argued was done by the placement of the car between them and oncoming traffic. Whether the zone or area in which they were lying had been made neutral is a matter of degree. The fact that the zone created was violated by someone who did not heed the warning and who was not deterred by the obstacle thereafter, does not change the fact that the “occupancy” of the motorcycle had been interrupted. Between the two classes, the *600broader one is that of “pedestrian,” as the court recognized in Prince, supra.

Decided March 19, 1986 Rehearing denied April 3, 1986 Clarence L. Martin, for appellant. J. Loren Fowler, Michael L. Wetzel, for appellee.

Giving all reasonable inferences to, and resolving all reasonable doubts in favor of, the claimant, I would not find that as a matter of law Collins was still an “occupant” and had not become a “pedestrian.” Insurance contracts are to be construed to effect the purpose of insurance in favor of the insured. James v. Penn. Gen. Ins. Co., 167 Ga. App. 427, 431 (306 SE2d 422) (1983). Broad interpretation has been given, as it is perceived to be the intent of the General Assembly to effect coverage under the no-fault law. See Vansant v. Allstate Ins. Co., 142 Ga. App. 684, 686 (236 SE2d 858) (1977); Franklin v. Southern Guaranty Ins. Co., 160 Ga. App. 279, 282 (287 SE2d 274) (1981).

I am authorized to state that Presiding Judge McMurray and Judge Carley join in this dissent.