Allstate Ins. Co. v. Neal

• Decision Date: 01 June 2010
• Docket Number: No. A10A0276.,A10A0276.
• Citation: 696 S.E.2d 103,304 Ga.App. 267
• Parties: ALLSTATE INSURANCE COMPANYv.NEAL et al.
• Court: Georgia Court of Appeals

304 Ga.App. 267

696 S.E.2d 103

ALLSTATE INSURANCE COMPANYv.NEAL et al.

No. A10A0276.

Court of Appeals of Georgia.

June 1, 2010.

Carlock, Copeland & Stair, Hugh M. Ruppersburg, Atlanta, for appellant.

Flint, Connolly & Walker, David L. Walker Jr., Konrad G. W. Ziegler, Canton, William E. Whitaker, for Appellee.

PHIPPS, Presiding Judge.

Deputy sheriff Patrick Neal was injured in a shooting with Frank Sheridan while trying to serve Sheridan with an arrest warrant at Sheridan's residence. Sheridan was killed. Neal brought a tort action against Sheridan's estate seeking damages for his injuries. Sheridan's homeowner's insurer, Allstate Insurance Company, brought this declaratory judgment action against Neal and the estate seeking a ruling that it was not obligated to provide the estate with coverage, indemnity or a defense for any claim arising out of the shooting. The trial court denied Allstate's motion for summary judgment in the declaratory judgment action, and we granted interlocutory review. Finding that Allstate was entitled to judgment as a matter of law, we reverse.

Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.¹ On appeal from the grant or denial of summary judgment, we conduct a de novo review, construing the evidence and all reasonable conclusions and inferences drawn therefrom in the light most favorable to the nonmovant.²

Neal's deposition testimony is the only record evidence of the circumstances of the shooting. He testified that he was assigned to serve an arrest warrant on Sheridan. At about 3:00 p.m. on August 10, 2004, Neal drove to Sheridan's house in his patrol car. There, he saw Sheridan standing beside the passenger door of a truck which had been backed into the driveway. The two men looked at each other. Sheridan then ran “around the back of his truck to the driver's side.”

Concerned that Sheridan would flee, Neal parked his patrol car in front of the truck and got out of his car. Neal called out Sheridan's name and walked toward him. Sheridan was standing next to the open driver's door of the truck, facing away from Neal. At this point, Neal stood about one foot away from the edge of the door. Sheridan turned toward him holding a gun pointed at the ground, and Neal drew his gun. Neal stepped to the side, putting the truck door between himself and Sheridan. Sheridan raised his gun. Neal ordered Sheridan to put down the gun, but Sheridan fired the gun twice through the glass window of the truck door, hitting Neal. Sheridan then came “around the [truck] door shooting at [Neal] again, and that's when [Neal] returned fire on him.” During the exchange, Sheridan retreated behind the door of the truck and came out from behind it a second time. Sheridan then fell to the ground and continued to fire at Neal. Both men were shot multiple times during the exchange, which lasted five to seven seconds.

1. In determining Allstate's obligations regarding Neal's claims against the estate, the initial consideration is whether the policy covered the incident in which Neal suffered his injuries.³ Allstate contends that Sheridan's homeowner's insurance policy did not cover it. The policy provided coverage for “damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies.” The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage.” Thus, we must decide whether the shooting from which Neal's injuries arose was an “accident.”

Sheridan's policy with Allstate did not define “accident.” Interpreting similar policy provisions, however, we have defined an accident as “an event which takes place without one's foresight or ... design” and “an unexpected happening.” ⁴ Applying this definition of accident to an injury arising from an intentional shooting, we reversed the denial of summary judgment to a liability insurer in Allstate Ins. Co. v. Grayes,⁵ holding that where the insured “intended to shoot the gun and hit those whom he intended to shoot,” then as a matter of law the shooting was not an “event [ ] which took place without [the insured's] foresight or expectation or design.” ⁶

Neal contends that a jury question exists concerning whether Sheridan intended to shoot the gun and to hit him, arguing that “[b]ecause the shooter in this case is deceased, and therefore is unable to testify as to his mental state or his intentions at the time of the shooting, any attempt to infer his intent is speculative and invades the purview of the jury.” But the lack of testimony by Sheridan about his intent does not preclude a finding, as a matter of law, that Sheridan intended to shoot Neal.⁷ Neal's own undisputed testimony was that Sheridan raised a gun, pointed it at him, approached him, and shot him multiple times. In light of this evidence, Neal has not pointed to any specific evidence that would authorize a jury to find that he was struck accidentally.⁸ Moreover, we find no reasonable interpretation of the evidence that would support an inference that Sheridan did not intend to fire the gun at Neal and strike him.⁹

Nevertheless, Neal argues that Sheridan's intent was “inherently a factual question.” He cites in support of this argument cases in which a factual question arose concerning whether an insured intended to commit suicide. ¹⁰ Those cases are inapposite because, unlike here, they involved the application of a presumption against a finding of suicidal intent.¹¹]

Neal also argues that whether the shooting was an accident under the policy depends upon whether it was unforeseen by him, not whether it was unforeseen by Sheridan. The cases Neal cites in support of this argument, however, addressed the definition of “accident” within the context of an automobile insurance policy, not a homeowner's liability policy.¹² As discussed above, cases concerning whether an event is an accident under a homeowner's liability policy have turned on whether the event was unforeseen by the insured (here, Sheridan).¹³

The undisputed evidence in this case demonstrated that, like the insured in Grayes, Sheridan intended to fire at and hit Neal with the gun. This evidence demonstrated that the shooting was not an accident and thus was not a covered occurrence under the policy.¹⁴ Accordingly, Allstate was entitled to summary judgment in the declaratory judgment action, and the trial court erred in ruling otherwise.

2. Allstate contends that summary judgment was appropriate because a policy exclusion relating to intentional and criminal acts precluded coverage. In light of our conclusion in Division 1 that the shooting was not a covered occurrence under the policy, we need not consider the applicability of any policy exclusions.¹⁵

Judgment reversed.

MILLER, C.J., and JOHNSON, J., concur.

1. OCGA § 9-11-56(c).

2. O'Dell v. Pine Ridge Investments, 293 Ga.App. 696, 667 S.E.2d 912 (2008).

3. Perry v. State Farm Fire &, etc., 297 Ga.App. 9, 10-11, 676 S.E.2d 376 (2008); see Scottsdale Ins. Co. v. Great American Assurance Co., 271 Ga.App. 695, 697(2), 610 S.E.2d 558 (2005) (court must consider whether policy covered incident in which injury occurred before addressing whether policy exclusion applies); Southern Guaranty Ins. Co. v. Phillips, 220 Ga.App. 461, 462(1), 469 S.E.2d 227 (1996) (same); Allstate Ins. Co. v. Grayes, 216 Ga.App. 419, 420(1), 454 S.E.2d 616 (1995) (same).

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