Fisher appeals the grant of summary judgment to Clarendon National Insurance Company (Clarendon), the liability insurer of his employer, and The Hartford, his personal insurance company, in the insurers' suit for declaratory judgment regarding uninsured motorist coverage.
1. In ruling on a motion for summary judgment, the opposing party is given the benefit of all reasonable doubt, and the court should construe all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Langford v. Royal Indem. Co., 208 Ga.App. 128 (1) (430 S.E.2d 98) (1993).
So viewing the evidence on the insurers' motions, Fisher was employed by Bo-Mark Transport as a long distance driver. On the afternoon of October 3, 1989, Fisher was operating his fully loaded tractor trailer rig on Highway 278 in Columbia County on his way from South Carolina to Atlanta. He was not using nearby Interstate 20 because his rig was overloaded and he was going to drive around the interstate weigh station.
As he pulled onto four-lane Highway 278, he first noticed a black sports car in front of his rig. Fisher travelled behind the car for some distance until the highway changed from a four-lane to three lanes, one in each direction with a center passing lane. At this point, although there was no other traffic in front of it, the sports car slowed to approximately 20 mph.
When the two vehicles arrived at the next available passing lane in their direction, Fisher pulled his rig into the center lane to attempt to pass. As his rig gained speed, the car also began to gain speed until it was traveling at the same speed as the rig, adjacent to the rig's rear
The car then backed off and followed the rig to the next passing lane, at which point the car began to pass until it came adjacent to Fisher's window, which was closed. There were two occupants in the car, but Fisher was able to see the driver's arm come across the passenger and shots were fired into his cab. One bullet shattered the window, entering his left arm and then his chest, causing serious injury. Another slug was found in the driver's door. The perpetrator was never apprehended. Other than the bullets, no contact occurred between the rig and the car.
Fisher was able to pull the rig to the side of the road and stop it. He flagged down a motorist and asked him to contact police and then went to a house nearby where Ms. Whitaker opened the door to find him bleeding profusely. He told her what had happened and she called authorities and attempted to stem the bleeding until they arrived.
2. "OCGA § 33-7-11 (b) (2) provides that `in 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,' except where `the description by the claimant of the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.'" Nat. Surety Corp. v. O'Dell, 195 Ga.App. 374 (393 S.E.2d 504) (1990).
While the insurer and insured may contract for broader coverage than that provided by the statute, the policy must at least provide the coverage mandated by the statute. Martin v. Chicago Ins. Co., 184 Ga.App. 472, 473 (361 S.E.2d 835) (1987). Such coverage includes the intentional acts of third parties as an "accident" if the remaining criteria are met. USAA Property &c. Ins. Co. v. Wilbur, 207 Ga.App. 57, 58 (427 S.E.2d 49) (1993); Martin, supra at 473. The two policies here provide the minimum coverage.
Fisher's arguments are, in the alternative, 1) that Ms. Whitaker corroborates his version of the incident, doing away with the necessity of contact between the vehicles; 2) that the bullet was a "phantom vehicle"; and 3) the act of firing from the car was "use of an uninsured vehicle."
(a) Fisher's argument is that Ms. Whitaker's description of his condition and what he told her about the accident are part of the res gestae and are sufficient to corroborate his claim, absent physical contact between the vehicles.
(b) Assuming without deciding that the incident here can be said to have arisen from the operation, maintenance, or use of the uninsured motor vehicle as required by the two policies and Georgia law,
For this position, Fisher relies on an admitted extension of the rationale of Ins. Co. of N. America v. Dorris, 161 Ga.App. 46, 48 (288 S.E.2d 856) (1982).
Now Justice Carley, writing for this court, concluded that the unidentified driver's pursuit of Spears and Dorris was such as to conclude that the injury to Dorris "arose from," "had its origins in," "grew out of" or "flowed from" the unidentified assailant's use of the truck and that "[i]t was because of the physical contact between the mirrors on the respective trucks that the entire incident began." Id. at 49 (2).
No case since has extrapolated from this case to find that a projectile launched from the uninsured car which strikes the victim's car is the required physical contact between the vehicles. We decline to
Judgment affirmed. Pope, C. J., and Birdsong, P. J., concur.