Allstate Ins. Co. v. Grayes

• Decision Date: 27 February 1995
• Docket Number: No. A94A2623,A94A2623
• Citation: 216 Ga.App. 419,454 S.E.2d 616
• Parties: ALLSTATE INSURANCE COMPANY v. GRAYES et al.
• Court: Georgia Court of Appeals

Page 616

454 S.E.2d 616

216 Ga.App. 419

ALLSTATE INSURANCE COMPANY v. GRAYES et al.

No. A94A2623.

Court of Appeals of Georgia.

Feb. 27, 1995.

Certiorari Denied May 19, 1995.

Karsman, Brooks & Callaway, R. Kran Riddle, Savannah, for appellant.

Clarence L. Martin, P.C., Clarence L. Martin, Jackson & Schiavone, G. Terry Jackson, Savannah, for appellees.

BIRDSONG, Presiding Judge.

This interlocutory appeal was granted to review the trial court's denial of Allstate Insurance Company's motion for summary judgment in Allstate's action seeking a judicial declaration of its obligations under a homeowner's insurance policy it issued to Ulysses Middleton and Valencia Middleton. This litigation arises from a continuing dispute between the Middletons and their neighbors, Willie Grayes and Dolores Grayes, that ended when Ulysses Middleton shot both Willie and Dolores Grayes with a shotgun. Mrs. Middleton was not present at the time of the shooting. The Grayeses filed suit against the Middletons alleging that Mr. Middleton was liable because he intentionally and without provocation shot the Grayeses and that Mrs. Middleton was liable because she provoked the series of incidents that ultimately led to the shootings.

After the Grayeses sued the Middletons and the Middletons claimed coverage under their Allstate homeowner's policy, Allstate filed a petition seeking a declaratory judgment. Subsequently, Allstate moved for summary judgment contending there was no coverage because the policy covered only damages for bodily injury arising from accidents and because the policy's exclusions for intentional acts and criminal conduct precluded coverage under the policy. Allstate asserted that there was no coverage for Mr. Middleton because the Grayeses' injuries were caused by Mr. Middleton's intentional, criminal conduct and there was no coverage for Mrs. Middleton because her actions did not cause bodily injury to the Grayeses.

The Grayeses' response to the motion asserted that a policy endorsement modified the policy's criminal acts exclusion so that the exclusion did not apply if the bodily injury resulted from wilful acts or omissions committed by an insured or with the knowledge or consent of an insured, which were crimes under the Georgia Criminal Code, but the acts or omissions were for the preservation of life or property. Consequently, the Grayeses amended their complaint to allege that Mr. Middleton negligently shot the Grayeses in self-defense because he shot them without ascertaining whether he was really in danger. The Grayeses also submitted Mr. Middleton's affidavit stating that he shot the Grayeses in self-defense.

Because of the amendment to the endorsement, Allstate withdrew its reliance on both policy exclusions. As to Mr. Middleton, Allstate based its motion for summary judgment solely on its contention that there was no coverage because the shootings were not accidental and the policy covered only damages arising from accidents.

The trial court denied Allstate's motion because it found that "the question is whether [Mr. Middleton] acted accidentally, negligently, recklessly, intentionally, etc. in an effort to preserve life or property. Because coverage depends on a factual finding that Mr. Middleton's conduct fit within the endorsement providing coverage for protection of life or property, the issue cannot be determined as a matter of law." Thus, the trial court found jury issues existed on whether Mr. Middleton's conduct satisfied the preservation of life or property exception to the criminal acts exclusion. As to Mrs. Middleton, the trial court found there were issues of fact concerning coverage for her because she was intimately involved in the incidents that ultimately resulted in the Grayeses' injuries.

Allstate contends the trial court erred because the criminal acts or omissions exception applied only if there was bodily injury caused by Mr. Middleton that arose from an accident, and here the evidence showed there was no accident. Allstate also contends that the trial court erred by denying its motion regarding coverage for Mrs. Middleton because there was no evidence that her actions resulted in bodily injury to the Grayeses. Held:

1. Although the questions the lower court found significant might ultimately become relevant in certain cases, a court's first obligation in cases such as this is to construe the insurance policy to determine the scope of the policy and any exclusion at issue. OCGA § 13-2-1. If any question of fact is then relevant, the jury must decide those issues. Id.

Further, before addressing whether the terms of some exclusion might be applicable, the initial consideration is whether the policy covered the incident in which the Grayeses suffered their injuries. Penn. Millers Mut. Ins. Co. v. Heule, 140 Ga.App. 851, 852, 232 S.E.2d 267; Showers v. Allstate Ins. Co., 136 Ga.App. 792, 222 S.E.2d 198; Ga. Farm Bureau Mut. Ins. Co. v. Alloway, 134 Ga.App. 660, 661, 215 S.E.2d 506. To establish a prima facie case on a claim under a policy of insurance the insured must show the occurrence was within the risk insured against. See Donaldson v. Pilot Life Ins. Co., 177 Ga.App. 748, 749, 341 S.E.2d 279; Fidelity, etc., Co. of Md. v. Sun Life Ins. Co., 174 Ga.App. 258, 260, 329 S.E.2d 517.

The provision establishing the coverage of this policy states: "Losses we cover: Subject to the terms, limitations and conditions of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy." The policy defines "bodily injury" as "physical harm to the body, including sickness and disease, and resulting death." Although the policy does not define the term "accident," in Georgia an accident is defined as "an event which takes place without one's foresight or expectation or design." OCGA § 1-3-3(2). "An accident refers to an unexpected happening rather than one occurring through intention or design. Acts could not be unexpected unless they were accidental." (Citation and punctuation omitted.) Southern Guaranty Ins. Co. v. Saxon, 190 Ga.App. 652-653...