Thrif-Mart, Inc. v. Commercial Union Assur. Companies

• Decision Date: 28 May 1980
• Docket Number: INC,THRIF-MAR,No. 59080,59080
• Citation: 154 Ga.App. 344,268 S.E.2d 397
• Parties: et al. v. COMMERCIAL UNION ASSURANCE COMPANIES et al. *
• Court: Georgia Court of Appeals

Page 397

268 S.E.2d 397

154 Ga.App. 344

THRIF-MART, INC. et al. v. COMMERCIAL UNION ASSURANCE COMPANIES et al. ^*

No. 59080.

Court of Appeals of Georgia.

Argued Jan. 10, 1980.

Decided April 15, 1980.

Certiorari Denied May 28, 1980.

David A. Handley, Jack O. Morse, Charles L. Barrett, III, Atlanta, for appellants.

Thomas E. Greer, David H. Tisinger, J. Thomas Vance, Carrollton, Jack F. Witcher, Bremen, Richard C. Sutton, Tallapoosa, for appellees.

SOGNIER, Judge.

Appellants, the operator of a grocery store business and the owner of the building in which the business is conducted, filed individual suits against Wayne Allan Moore and the administrator of the estate of Dennis C. Williams seeking damages for destruction of their property by fire. Appellee, Commercial Union Assurance Companies, then brought a declaratory judgment action to determine whether coverage of Wayne Allan Moore was afforded under a homeowners insurance policy issued to his father, denying liability because of an exclusion in the policy providing that "This policy does not apply . . . to bodily injury or property damage which is either expected or intended from the standpoint of the Insured." The jury rendered a verdict in favor of the insurer and judgment was entered accordingly. The appellants' motions for judgment notwithstanding the verdict and for new trial were denied and this appeal ensued. We affirm.

1. Appellants' contention that the evidence was insufficient as a matter of law to support a verdict in favor of the insurer is not supported by the transcript of testimony at the trial and other statements of Wayne Allan Moore introduced therein. Moore testified that on Saturday, January 11, 1976 he and a friend and schoolmate, Dennis Williams, had been drinking vodka all day. Moore was fourteen. Late that night he and Williams went to a youth recreation center to get some Coca-Colas but were asked to leave because they had been drinking. Both left and Williams went to a nearby grocery store, operated by the appellant Thrif-Mart. Moore followed and saw Williams stealing Cokes from the soft drink machine. Williams broke into the store and Moore followed him in by entering through a broken window, climbing over a cabinet and going through two or three doors to get into the store area. Moore knew he was not authorized to enter the building but wanted to get Williams out before they were caught. While in the store he knocked a jar of mayonnaise off a shelf breaking the jar. When he cut his bare foot on the glass he threw a bottle of catsup in anger. He took some money Williams gave him out of the store and then returned to get Williams out. It "seemed like" there were articles knocked off the shelves and stacked up. He saw smoke and "took off," thinking Williams was behind him. However, Williams was trapped inside the store by the rapidly combusting fire and perished from injuries received when the store was destroyed by flames.

Moore also made statements prior to trial to the insurance claim adjuster, a fire marshal and the sheriff, which differed in some respects from his trial testimony and which were introduced for purposes of impeachment. Moore told appellee's adjuster that he broke down the door to the store to enter it; Moore told the sheriff that Williams told him (Moore) to run down the first aisle and wreck it and that he ran down the aisle knocking off merchandise. He told the fire inspector that Williams was spraying an aerosol can of Right Guard over a butane cigarette lighter flame as a blow torch, although at trial Moore denied seeing such an occurrence. When questioned about discrepancies between prior statements and his trial testimony, Moore swore that he had lied during previous statements to protect himself because he was facing criminal charges, but he was telling the truth at trial. In addition to the money which Moore admitted taking from the store, investigators also found other articles including a bracelet, cigarettes and butane cigarette lighters outside the burned store. After being qualified as an expert, the investigator from the State Fire Marshal's Office testified that based upon his examination of the scene of the fire, his consultation with witnesses and his expertise, it was his opinion that the fire was intentionally set because of the relation of "hot spots" and the rapid movement of the fire.

The jury was entitled to believe all, part or none of Moore's testimony, and the evidence as a whole amply supported a finding that Moore intended or expected damage to occur to the items he swept off the shelf. Even if Moore did not intend or expect to burn the property, the policy exclusion does not restrict the injury or damage to fire so as to preclude the verdict as a matter of law. " 'Accident' and 'intention' are converse terms. An accident refers to an unexpected happening rather than one occurring through intention or design." (Emphasis supplied.) Travelers Indemnity Co. v. Hood, 110 Ga.App. 855, 857(1), 140 S.E.2d 68, 70 (1964) (20 A.L.R.3d 314 (1968)). Thus, Moore's acts could not be unexpected unless they were accidental, and there was no evidence that such was the case. Hence, if the jury found that Moore intended to cause harm to the property of another, the resulting damage was both intentional and expected, as contemplated by the exclusion of coverage. Accord, State Farm Fire & Cas. Co. v. Muth, 190 Neb. 248, 277, 207 N.W.2d 364 (Neb. 1973) with identical policy provision. See generally Annot., 2 A.L.R.3d 1238, 1243, § 4 (1965).

2. Nor do we agree that the policy exclusion referred only to the named insured, Robert H. Moore, the father of Wayne Allan Moore, and to no other insured under the policy. "Insured" is defined in the policy as "residents of the Named Insured's household, his spouse, the relatives of either, and any other person under the age of twenty-one in the case of any Insured . . ." (T-210) "The language 'an insured' makes the company liable for property damage caused by any person included in the omnibus clause, while the language 'the insured,' referring to settlement of claims, is ambiguous, since it may mean either the name insured or the insured...