Allеging negligence, Tina Phillips and James Stacy sued South West Mechanical Contractors, Inc., Arthur Payton, Michael Mahlum, and John Doe 1 for the death and suffering of their son resulting from a vehicle accident. South West, Paytоn, and Georgia Farm Bureau Mutual Insurance Company successfully moved for summary judgment. Phillips and Stacy now appeal this ruling, and upon review, we affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant need not produce any evidence, but must only point to an absence of evidence to support at least one essential element of the plaintiff’s claim.
Lau’s Corp. v. Haskins,
*145 So viewed, the evidence reveals that while driving on Georgia Highway 400, Payton experienced problems with the dump truck he was driving for his employer, South West. Payton pulled over into the emergency lane and halfway into the grass to the right of the emergency lane to investigate the problem. Payton and his supervisor determined that there was a fuel problem, and both left the dump truck in the emergency lane to get a fuel filtеr. Upon returning and realizing that replacement of the fuel filter did not correct the problem, the two men spoke with the owner of South West and were told to leave the truck as the owner would come thе next day to replace the fuel pump. Approximately thirty-six hours later, after midnight, the decedent and another teenager were traveling along Georgia Highway 400 on a stolen one-passenger all-tеrrain vehicle (ATV), without a headlight, and in excess of 65 mph. The driver of the ATV and a third teenager had stolen the ATV the previous day, and the passenger, the decedent, was aware of this fact. The ATV veered into thе emergency lane and struck the left rear of the dump truck. Both youths were thrown from the vehicle, and the decedent, who was riding on the back of the ATV, was thrown onto the highway, struck by an unknown vehicle, and killed.
The appellants’ enumerations claim that the court erred in finding certain issues of fact or erred in failing to find certain issues of fact. We point out that the trial court is not required to make findings of fact and conclusiоns of law in ruling on a motion for summary judgment.
Thompson v. City of Fitzgerald,
1. Appellants argue that South West was negligent in leaving the dump truck on the side of Georgia Highway 400.
To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standаrd of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and thе resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.
(Citation omitted.)
Berry,
supra,
Notably, in
Jimenez v. Morgan Drive Away,
2. The appellants also named John Doe as a defendant in their complaint in оrder to seek uninsured motorist coverage from their insurer, Georgia Farm Bureau. They further argue that they are entitled to uninsured motorist benefits for the collision between the ATV and the dump truck.
(a) Appellants arguе that the separate collision between the ATV and the dump truck entitled them to uninsured motorist coverage. It is undisputed that the decedent was an insured under the automobile policy. The exclusion to the рolicy, however, states that “[Georgia Farm does] not provide Uninsured Motorists Coverage for ‘property damage’ or ‘bodily injury’ sustained by any person: ... 3. Using a vehicle without a reasonable belief that that рerson is entitled to do so.”
The appellants cite
Maryland Cas. Co. v. Rhoden,
Under Georgia law, “an insurance company is free to fix the terms of its policies as it sees fit, so long as such terms are not contrary to law, and it is equally free to insure against certain risks while excluding others.” (Footnote omitted.)
Continental Cas. Co. v. HSI Financial Svcs.,
(b) The appellants also contend that they are entitled to uninsured motorist coverage due to the negligence of John Doe in strildng the decedent. Law enforcement determined that the decedent was struck by another automobile. The autopsy report revealed that the decedent was still alive prior to being struck by the John Doe vehicle. There is, however, an absence of evidence showing that John Doe’s acts or omissions constituted negligence. There were no eyewitnesses to the collision and no other evidence presented as to how it occurred. “The purpose of the uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is
legally entitled to recover damages from an uninsured motorist,
and thereby to protect innocent victims from the negligence of irresponsible drivers.” (Citations omitted; emphasis in original.)
Brown v. State Farm &c. Ins. Co.,
Here, the appellants have failed to come forward with any evidence which raises a question of fact as to John Doe’s negligence. See
Etheredge v. Kersey,
3. Appellants’ argument that they are entitled to punitive damages against South West is without merit, as such a claim was derivative of the negligence claim against South West. See
Nelson & Hill, P.A. v. Wood,
4. In light of our holding in Division 1, appellаnts’ remaining enumerations are moot.
Judgment affirmed.
Notes
John Doe was named as a defendant so the appellants could seek uninsured motorist coverage from their insurer, Georgia Farm Bureau Mutual Insurance Company.