In support of its contention that a connection did not exist in this case between the injuries and the operation, maintenance or use of the vehicle, the appellant relies on a series of cases disallowing benefits to or on account of persons who were criminally assaulted while occupying an insured vehicle. See Davis v. Criterion Ins. Co., 179 Ga. App. 235 ( 345 S.E.2d 913) (1986); Weeks v. Auto-Owners Ins. Co., 175 Ga. App. 725 ( 334 S.E.2d 325) (1985); Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829 ( 318 S.E.2d 670) (1984); Washington v. Hartford Acc. c. Co., 161 Ga. App. 431 ( 288 S.E.2d 343) (1982); Westberry v.State Farm c. Ins. Co., 179 Ga. App. 700 ( 347 S.E.2d 688) (1986). With the exception of Weeks, the controlling factor in each of these cases clearly was the intentional and deliberate nature of the assault, "'which took place in the vehicle simply because that is where the (victims) happened to be'" at the time.
For example, in Bennett v. Nat. Union Fire Ins. Co. of Pittsburgh, Pennsylvania, the insured parties sought to claim benefits from their insurance policy that covered "injuries caused by an accident arising out of the operation, maintenance or use of a motor vehicle as a vehicle" after they were intentionally shot while in their vehicle by an assailant outside the vehicle. 170 Ga.App. 829, 829 (318 S.E.2d 670) (1984).
Id. at 564. In Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829, 830 ( 318 S.E.2d 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.
(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, this still does not answer the question of whether the bullet entering the rig from the car was "physical contact" between the vehicles for purposes of uninsured motorist coverage. See, e.g., USAA Property c. Ins. Co. v. Wilbur, supra; First Fin. Ins. Co. v. Rainey, 195 Ga. App. 655 ( 394 S.E.2d 774) (1990); Westberry v. State Farm c. Ins. Co., 179 Ga. App. 700, 701 ( 347 S.E.2d 688) (1986); Bennett v. Nat. Union Fire c. Co., 170 Ga. App. 829, 830 ( 318 S.E.2d 670) (1984) which discuss this issue in the context of PIP no-fault coverage. 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).
Velthouse, 751 P.2d at 3. This holding is consistent with our decisions in King v. St. Paul Fire c. Co., 201 Ga. App. 851 ( 412 S.E.2d 614) (1991) (holding no liability for injuries sustained by insured as he was shot while attempting to enter his vehicle) and Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829 ( 318 S.E.2d 670) (1984) (finding no coverage under automobile liability insurance policy when insureds were injured in their moving automobile when a third-party intentionally fired a gun at them because "the (injuries bear) no apparent relation to the operation of the vehicle or the use to which it was being put. Instead, it resulted from a deliberate assault which took place in the vehicle simply because that is where the (victims) happened to be when the assailant came `gunning' for (them).
With specific reference to shootings, we have held that "[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." Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829, 830-831 ( 318 S.E.2d 670) (1984). In Westberry v. State Farm c. Ins. Co., 179 Ga. App. 700 ( 347 S.E.2d 688) (1986), this court held that no-fault benefits were not payable for the death of a taxi driver who was shot and killed by a robber while seated in the front seat of his taxi, even though "in all probability [the driver] was robbed for the purpose of taking the amount of money he had accumulated for the use of his vehicle as a taxi."
The vehicle was not running, any "maintenance" had already been performed by someone else, and there was at most a remote connection between Boykin's injuries and the vehicle. See Westberry v. State Farm Mut. Auto Ins. Co., 179 Ga. App. 700, 701 (1) ( 347 S.E.2d 688) (1986); Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829, 830 ( 318 S.E.2d 670) (1984); Jones v. Continental Ins. Co., 169 Ga. App. 153, 154 ( 312 S.E.2d 173) (1983); Leverette v. Aetna Cas. c. Co., 157 Ga. App. 175, 176 ( 276 S.E.2d 859) (1981). The injuries did not result "from an accident peculiar to the motor vehicle" nor were they "intrinsically related to the vehicle itself."
In cases in which an issue is presented as to whether a gunshot wound sustained by an insured in a motor vehicle can be considered an injury arising out of the use of the vehicle, the general rule is set forth in Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 564 ( 236 S.E.2d 550), 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." This court considered the same issue in Bennett v. Nat. Union Fire c. Ins. Co., 170 Ga. App. 829 ( 318 S.E.2d 670), in which the insured and his wife were seated in their moving automobile and a third party intentionally shot at them from outside the car. We affirmed summary judgment for the insurer, holding that to reach a finding that the injury arose out of the "operation, maintenance or use of the motor vehicle . . . [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."
"There must be more of a connection between the use of the vehicle . . . and the resulting injury than mere presence in the vehicle when the injury was sustained." Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829, 830-831 ( 318 S.E.2d 670) (1984). In Washington v. Hartford Accident c. Co., 161 Ga. App. 431 ( 288 S.E.2d 343) (1982) and in Hicks v. Walker County School Dist., 172 Ga. App. 428 ( 323 S.E.2d 231) (1984), we held that an injury resulting from an intentional assault upon a bus passenger did not arise out of the operation, maintenance or use of the bus.
The general rule, as set forth in Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 564 ( 236 S.E.2d 550) (1977), is 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.'" Washington v. Hartford Accident Indem. Co., 161 Ga. App. 431 ( 288 S.E.2d 343) (1982); Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829, 830 ( 318 S.E.2d 670) (1984). "There 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.