Abercrombie v. Georgia Farm Bureau Mutual Insurance

Andrews, Judge,

dissenting.

I respectfully dissent. As the majority notes, the policy clearly provided that the injuries must arise from the ownership, maintenance or use of the vehicle. In this matter, the incident for which recovery is sought did not arise out of the operation, maintenance or use of the VanAlstine’s automobile and the superior court’s grant of summary judgment should be affirmed.

In Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562 (236 SE2d 550) (1977), the general rule set forth was that “where a connection appears between the ‘use’ of the vehicle and the discharge of the firearm and resulting injury such as to render it more likely that the one grew out of the other, it comes within the coverage defined.” Id. at 564. In Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829, 830 (318 SE2d 670) (1984), the court stated that in order to find coverage, “[t]here must be more of a connection between the use of the vehicle and the discharge of the firearm and the resulting injury than mere presence in the vehicle when the injury was sustained.” Id. at 830-831.

Here, Abercrombie’s injury bore no apparent relation to the operation of the vehicle or to the use to which the vehicle was put. To allow uninsured motorist coverage because the initial accident between the parties occurred in a vehicle stretches the requisite connection too far. “The question is not whether the insured’s injury had some remote connection to the use of the automobile. . . Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700, 701 (347 SE2d 688) (1986) (summary judgment to insurer affirmed in action for personal injury protection benefits arising out of the shooting death during an armed robbery of taxi driver, while he was seated in his parked taxi). The applicable principles to the inquiry here have been set forth numerous times in contexts other than the uninsured motorist coverage. See, e.g., Rustin v. State Farm &c. Ins. Co., 254 Ga. 494 (330 SE2d 356) (1985); Washington v. Hartford Accident &c. Co., 161 Ga. App. 431 (1) (288 SE2d 343) (1982); Weeks v. Auto-Owners Ins. Co., 175 Ga. App. 725 (334 SE2d 325) (1985); Davis v. Criterion Ins. Co., 179 Ga. App. 235, 236 (345 SE2d 913) (1986); King v. St. Paul Fire &c. Co., 201 Ga. App. 851 (412 SE2d 614) (1991); USAA Property &c. Co. v. Wilbur, 207 Ga. App. 57 (427 SE2d 49) (1993); compare Ga. Farm &c. Ins. Co. v. Burnett, 167 Ga. App. 480 (1) (306 SE2d 734) (1983).

Abercrombie’s death was not the result of an automobile accident, but was caused by a voluntary, deliberate, intervening act which was unforeseeable and which rendered the use of the vehicle incidental. “Similarly, in Washington[, supra], the court found no causal connection where a passenger on a school bus was attacked with a pistol because the injury resulted from a deliberate assault which took *606place in the vehicle simply because that is where the victim happened to be when the assailant came ‘gunning’ for him.” (Citations and punctuation omitted.) USAA Property &c. Co. v. Wilbur, supra at 59.

Decided March 10, 1995 Michael P. Froman, for appellant. Downey & Cleveland, Joseph C. Parker, W. Curtis Anderson, for appellee.

In Ins. Co. of North America v. Dorris, 161 Ga. App. 46 (1) (288 SE2d 856) (1982), the case involving uninsured motorist benefits upon which the majority relies, the injuries resulted not from gunfire, but from an automobile accident. The injuries in Dorris were caused by the overturning of the truck. In the instant matter, there was no dispute that Abercrombie’s death was caused by the bullet wound. Thus, unlike the situation in Dorris, the fact that Abercrombie was shot in his car had no bearing on his death. The fact that the vehicle was the “mere situs” of the intentional gunshot exchange is not enough to warrant this coverage. See generally Colonial Ins. Co. of California v. Lumpkin, 207 Ga. App. 376 (428 SE2d 351) (1993).

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