Fireman's Fund Insurance v. Kerger

Sognier, Judge,

dissenting.

I respectfully dissent.

First, I find Pennsylvania Nat. &c. Ins. Co. v. Burnetti, 192 Ga. App. 593 (385 SE2d 446) (1989) distinguishable from the case sub judice. The vehicle in Burnetti unquestionably collided with something (although it is unclear whether it was the telephone stand in which the pedestrian was standing), setting in motion a chain of events resulting in the pedestrian’s alleged injury, while the vehicle in the case at bar hit nothing, but rather was backed without incident into the insured’s residence driveway. Thus, even extending Johnson v. National &c. Ins. Co., 177 Ga. App. 204, 205-206 (1) (338 SE2d 687) (1985) as far as the majority did in Burnetti, it is certainly a question of fact whether this case may be brought under that rationale. In Johnson we held that a pedestrian was “struck,” and was therefore entitled to no-fault benefits, when he was hit by a parked car when a moving vehicle collided with the parked car, thus propelling it into the pedestrian. In the case sub judice, appellee was not *23“struck” at all. He was injured when he was thrown from his bicycle which he propelled over a storm drain. In my view, the facts presented here are simply outside the bounds of the Johnson rationale, even as extended by Burnetti, and the majority itself proposes the very anomalous results it sought to avoid in Burnetti. Allowing injured pedestrians to recover benefits under the no-fault insurance policies of drivers of vehicles with whom they have no contact when no collision with anything took place, simply on the basis of the pedestrians’ belief that the vehicle would have or might have collided with them but for their own actions, seems to me a far more anomalous result than requiring the minimal contact mandated by Johnson, supra. Moreover, plaintiffs such as appellee are not without remedy if no-fault benefits are disallowed, as nothing precludes them from pursuing traditional liability claims against those they believe responsible for their injuries, as, in fact, appellee has done in this case.

Second, although Burnetti, supra, is distinguishable, I believe it was wrongly decided and should be overruled. The majority opinion in Burnetti ignores this court’s recent decision in Cole v. N. H. Ins. Co., 188 Ga. App. 327 (373 SE2d 36) (1988), although that case is directly on point and construes the statutory “struck by” language in OCGA § 33-34-7 (a) in totally opposite fashion from that employed by the Burnetti majority. In Cole, this court held that “the requirement of being ‘struck by’ [means] the movement or force [must] be that of the vehicle.” Id. at 329. The majority opinion in Burnetti also fails to mention the controlling authority of the Supreme Court’s decision in Collins v. Intl. Indem. Co., 256 Ga. 493 (349 SE2d 697) (1986) (although the importance of Collins was recognized by Judge Beasley in her opinion concurring in part and dissenting in part in Burnetti), which explicitly holds that “the word ‘strike’ [in OCGA § 33-34-7 (a) (3)] should be given its ordinary meaning, which is ‘[t]o come into violent contact with; hit,’ [cit.],” id. at 495, and that even if the injured party was a pedestrian, it was a requirement of the statute that the pedestrian have been “struck.”

“ ‘(S)tatutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. (Cit.)’ [Cit.]” Georgia Turkey Farms v. Hardigree, 187 Ga. App. 200, 202-203 (1) (369 SE2d 803) (1988). The words “pedestrian . . . struck by” a motor vehicle, as used in the no-fault statute, are “clear and not subject to dramatic and artful meaning.” Cole, supra at 329. Because appellee did not come into violent contact with Clotfelter’s vehicle or anything propelled by it, he was not “struck by” it and was not entitled to no-fault benefits. Accordingly, I would decline to follow that portion of Burnetti which construes OCGA § 33-34-7 (a) (3) as allowing a pedestrian to recover no-fault benefits *24when he has not come into violent contact with either a motor vehicle or a projectile set in motion by that motor vehicle, and in this case I would reverse the trial court’s grant of summary judgment to appellee.

Decided December 1, 1989 Rehearing denied December 19, 1989. Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Robin L. Peek, for appellant. James A. Goldstein, R. Patrick White, for appellee.

I am authorized to state that Presiding Judge Banke, Judge Birdsong and Judge Beasley join in this dissent.