First Financial Insurance Co. v. Rainey , 195 Ga. App. 655 ( 1990 )

Birdsong, Judge,

dissenting.

Appellant contends that there was no causal connection between the injury causing agent (the falling tree limb), and the operation, maintenance, or use of the motor vehicle within the meaning of the applicable sections of the Georgia Motor Vehicle Accident Reparations Act. OCGA § 33-34-1 et seq. I agree.

Unlike my colleagues in the majority, I cannot conclude that the unfortunate injuries sustained by the child in this case arose out of the operation, maintenance, or use of the insured vehicle “as a vehicle.” As the majority recognized, the question to be answered is whether the injury “originated from,” “had its origin in,” “grew out of,” or “flowed from” the use of the vehicle.

As stated by the majority, appellant relied on a series of cases where people happened to have been criminally assaulted while occupying the insured vehicle. Among those cases is the case of Weeks v. Auto-Owners Ins. Co., 175 Ga. App. 725 (334 SE2d 325). In Weeks a passenger seated in the parked automobile was accidentally shot when the criminal perpetrator fired at a third-party dismounted passenger of the same vehicle. The court in Weeks concluded that “appellant’s injury simply had no causal connection with the use of the insured’s vehicle in this case.” Weeks, supra at 726. Contrary to what the majority implies, two judges did not concur in the principal opinion in Weeks merely because the victim had been operating the vehicle in furtherance of a criminal enterprise when the crime occurred. In fact, the specially concurring opinion cites not a case in support of this proposition. Rather the two judges advanced the legal theory of vehicle use in furtherance of a criminal enterprise as “an additional reason” to that expressed by the majority while expressly agreeing with the legal analysis of the majority opinion in the first sentence of the concurring opinion. (Emphasis supplied.) Thus, Weeks is not merely a case which has value as physical precedent only. In fact, the majority opinion in Weeks, by virtue of being concurred in fully by all three judges, has full precedential value. Rather, it is the two-judge separate concurring opinion in Weeks, relied upon by the majority in the case sub judice in their attempt to distinguish Weeks, which would have value as physical precedent only. Slightly paraphrasing the well-established principle of law cited in Weeks so as to encompass the facts of this case, we find that “ ‘ “where a connection appears between the ‘use’ of the [parked] vehicle and the [falling of the tree limb] and resulting injury [to the young child seated inside the vehicle when the passenger door was still open] such as to render it more likely that the one grew out of the other, it comes within the coverage defined.” ’ [Cits.] ‘There must be more of a connection between the use of the vehicle and the [falling of the tree limb] and the resulting injury than mere presence in the vehicle when the injury was sustained.’ ” (Emphasis supplied.) Weeks, supra at 725. “Likewise, the connection must not be merely fortuitous.” Davis v. Criterion Ins. Co., 179 Ga. App. 235, 236 (345 SE2d 913) (the bus was merely the unfortunate location where the crime occurred). In the case sub judice, the falling tree limb falls within the category of events legally defined as “acts of God.” The effect of the majority’s decision in this case, in light of our existing precedent, is to cause the law of this state to be that the requisite causal connection appears between the “use” of the vehicle and the resulting injury when (a) an act of God just happens to injure a young child who happens to just enter the parked vehicle at the wrong time, and is merely present therein as an unwitting passenger, (b) the vehicle just happens to be parked at the same location where the act of God occurs, and (c) the act of God is otherwise unrelated to the actual operation of the car as a vehicle; such a causal connection would not occur; however, if the same passenger in the same parked vehicle had the misfortune of being shot through the open car door by a passing criminal, then no causal connection appears between the use of the vehicle and the resulting injury. In my view, we have to engage in acts of legal prestidigitation to justify this anomaly.

Further, the majority in essence argues that “but for” his use of the car, the young child would not have been in a position to be hit by a falling tree and to incur the resultant injury. This is a “faulty application of the ‘but for’ test as the facts of the instant case show only an incidental connection between the [car and the falling tree] and was not an injury that ‘arose out of the use of the [car] as a vehicle for there ‘must be more of a connection between the use of the vehicle and the [falling of the tree] . . . than mere presence in the vehicle. . . .’ [Cit.] ‘Case law indicates that the injury need not be the proximate result of “use” in the strict sense, but it cannot be extended to something . . . remote.’ ” Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700, 701-702 (347 SE2d 688). The majority today extends the concept of “proximate result of use” to cover injury-producing incidents of the most remote nature. With this I cannot agree.

Moreover, I would thus find the insurer’s argument to have been made in good faith. While issues of good faith or bad faith on the part of an insurer are normally reserved for the jury (Gillem v. MARTA, 160 Ga. App. 393, 395 (4) (287 SE2d 264)), “when there is no evidence of unfounded reason for the nonpayment, or if the issue of liability is close, the court should disallow imposition of bad faith penalties. [Cit.] Good faith is determined by the reasonableness of nonpayment of a claim.” International Indem. Co. v. Collins, 258 Ga. 236, 237 (2) (367 SE2d 786). Applying this test, I believe that appellant’s denial of the claim was reasonable, and that it did not act in bad faith so as to support the imposition of bad faith penalties. Id.; compare Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155, 158 (308 SE2d 382) (test of bad faith is as of the time of trial).

Merely because a legal argument is novel does not make it an argument done in bad faith. Such a staid position would throttle the orderly, albeit conservative, development of the law in this state.

While I fully recognize and appreciate the damage which can be done to an individual insured when pitted against the well-capitalized battery of legal counsel of an insurance company, nevertheless insurance companies too are entitled to certain basic rights of effective legal representation. When this court acts in a manner which deters an insurance company from advancing in litigation legitimate, but novel, legal theories and arguments, we have not assisted the individual insureds of this state. Rather, we have merely provided another incentive for spiralling increases in the insurance rates of our citizens.

I believe that because no causal connection existed in this case, as a matter of law, that judgment should be reversed. However, assuming arguendo, a causal connection could be found to exist, under the facts of this case, as a matter of law, the insurance company’s determination to contest rather than to pay this claim would be reasonable, and thus not in bad faith. Thus, I believe that the insurance company in any event acted in good faith, albeit aggressively, in the case sub judice, and that it should not have been assessed punitive damages, attorney fees, or bad faith penalty.

“[T]he appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortune of the unlucky.” Autry v. State, 150 Ga. App. 584, 587 (258 SE2d 268). It is the duty of this court to see that justice is fairly dispensed to all parties concerned, and, this creates an equally important judicial obligation not to render judgments born only of generosity or compassion.

I respectfully dissent. I am authorized to state that Chief Judge Carley and Presiding Judge Deen join in this dissent.