Pennsylvania National Mutual Casualty Insurance v. Burnetti

Banke, Presiding Judge,

dissenting.

1. By its holding in this case, the court has effectively eliminated the words, “as a result of being struck by the owner’s motor vehicle,” from OCGA § 33-34-7 (a) (3), thereby holding, in effect, that no-fault benefits may be recovered by any person who suffers an accidental bodily injury in this state in connection with the ownership, use or maintenance of an insured motor vehicle. This may or may not be an enlightened position as a matter of public policy, but it is unquestionably contrary to the plain wording of the statute.

Personal injury protection, or no-fault, insurance coverage was never intended to be co-extensive with motor vehicle liability insurance coverage. No-fault insurance is, of course, much broader in scope *596in that, as the name implies, it provides for compensation without regard to fault. On the other hand, it is more restrictive than liability insurance in the sense that it insures only against economic loss. See OCGA §§ 33-34-4 (a); 33-34-5 (a). Also, from the wording of OCGA § 33-34-7 (a), it is apparent that no-fault coverage was intended to apply only to injuries sustained while (1) occupying a motor vehicle or (2) as the result of being “struck by” a motor vehicle while a pedestrian. Motor vehicle liability insurance, on the other hand, encompasses all injuries for which an insured could be considered legally responsible, provided only that the injuries arose from the ownership, use or maintenance of a covered motor vehicle. See generally Rustin v. State Farm &c. Ins. Co., 254 Ga. 494 (330 SE2d 356) (1985); Weeks v. Auto-Owners Ins. Co., 175 Ga. App. 725 (334 SE2d 325) (1985); Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3 (2) (230 SE2d 70) (1976).

A restriction somewhat analogous to the “struck by” provision of § 33-34-7 (a) is contained in the Code section governing uninsured motorist coverage, as follows: “[I]n order for the insured to recover under the [uninsured motorist] endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured.” OCGA § 33-7-11 (b) (2). Both in construing the “struck by” terminology of OCGA § 33-34-7 (a) and in construing the “actual physical contact” provision of OCGA § 33-7-11 (b) (2), this court has held that a claimant need not actually have come into contact with the vehicle in question if that vehicle struck another vehicle which in turn came into contact with the claimant. See State Farm &c. Ins. Co. v. Carlson, 130 Ga. App. 27 (202 SE2d 213) (1979) (holding that the “actual physical contact” requirement of the uninsured motorist statute was met where an unknown hit-and-run driver struck a third vehicle which in turn struck the insured vehicle); Johnson v. Nat. Union Fire Ins. Co., 177 Ga. App. 204 (1) (338 SE2d 687) (1985) (holding that the “struck by” requirement of OCGA § 33-34-7 (a) (3) was satisfied where the insured vehicle struck a parked vehicle which was thereby propelled into the claimant).

It is one thing to construe OCGA § 33-34-7 (a) (3) in such a way that a pedestrian who is “struck by” an object which has been set in motion by a motor vehicle is treated as if he had been “struck by” the vehicle itself. It is quite another thing to construe the statute in such a way that it makes no difference whether the pedestrian has been struck “by” anything at all. All bodily injuries result from physical trauma of some sort, and the language of the statute was obviously intended to distinguish certain types of automobile-related impact *597from others. By placing a pedestrian who collides with a static object while exercising his own locomotive power in the same category with respect to eligibility for no-fault benefits as one who has been “struck by” a motor vehicle, we are going well beyond the legitimate constraints of statutory interpretation and are simply re-drafting the statute to suit our own notion of what the law ought to be.

2. Regardless of how we interpret the language of OCGA § 33-3-47 (a) (3), I believe the appellant insurer was entitled to summary judgment pursuant to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986), due to the fact that, in an affidavit submitted in opposition to the appellant’s summary judgment motion, the appellee contradicted his own prior deposition testimony without offering a reasonable explanation for the contradiction.

In his affidavit, the claimant averred that in his successful effort to avoid being struck by the insured vehicle, his “left hip and left shoulder struck the wall which was adjacent to where [he] had been standing,” whereupon he “fell to the ground, striking the pavement.” However, during his deposition, the appellee had complained only of having twisted his knee, as follows: “Q. Explain to me again what body movements took place on your part, you pulled back from the phone booth? A. I pulled back and I twisted to the right. . . . Q. You stepped back and you turned to your right? A. Yes, sir, ... to face the vehicle. . . . Q. No part of the vehicle struck you? A. No, sir. Q. And you just stood there after the vehicle stopped? A. Yes, sir.”

While the appellee attempted to explain this contradiction by averring in his affidavit that he thought the questions asked during the deposition had referred to a time period subsequent to the accident, that explanation was inconsistent not only with the above-quoted portions of his deposition testimony, but also with his additional deposition testimony as follows: “Q. All right. Did you fall down? A. You mean at the time of the incident? Q. Yes. A. No, sir.”

“As instructed in Prophecy Corp, supra at 30, on summary judgment the questions of whether the testimony is self-contradictory and whether a reasonable explanation has been offered are questions of law for the court to decide.” Chapman v. Burks, 183 Ga. App. 103, 106 (357 SE2d 832) (1987). Because the explanation offered by the appellee for the conflict between his affidavit and his deposition testimony is itself contradicted by his deposition testimony, as well as for the reasons stated in Division 1 of this dissent, I would hold that the trial court erred in denying the appellant’s motion for summary judgment.

I am authorized to state that Judge Birdsong and Judge Sognier join in this dissent.

*598Decided July 14, 1989 Rehearing denied July 31, 1989 Wildman, Harrold, Allen, Dixon & Branch, Alfred B. Adams III, Frank 0. Brown, Jr., for appellant. Carter & Butt, Eugene D. Butt, for appellee.