Pennsylvania National Mutual Casualty Insurance v. Burnetti

Beasley, Judge,

concurring in part and dissenting in part.

I agree with the majority’s ruling with respect to the apparent discrepancy in appellee’s statements, but I cannot concur in the construction of OCGA § 33-34-7 (a) (3). In this regard I agree with the dissent.

The Supreme Court has stated, in connection with its interpretation of this very provision, “that the word ‘strike’ should be given its ordinary meaning, which is ‘To come into violent contact with; hit.’ Funk & Wagnall’s Standard Dictionary.” Collins v. Inti. Indem. Co, 256 Ga. 493, 495 (349 SE2d 697) (1986). “By” relates to the vehicle which is the activating force, that which strikes the pedestrian directly or, as construed by the appellate courts, indirectly by striking something which strikes the pedestrian.

When it is the pedestrian’s activating force which results in the injury complained of, however, and it is he who strikes, this is not covered within the concept of “struck by” the vehicle. While this, too, is indirect, it is indirection of a different nature and cannot be squeezed into the language used by the legislature.

We cannot change the language so as to cover circumstances not covered by the plain language of the statute, on the supposition that the legislature would have changed the language if it had foreseen these circumstances. See dissent in State Farm &c. Ins. Co. v. Holmes, 175 Ga. App. 655, 658 (333 SE2d 917) (1985).