Anderson v. Southern Guar. Ins. Co., A98A1543.

• Court: United States Court of Appeals (Georgia)
• Citation: 235 Ga. App. 306,508 S.E.2d 726
• Docket Number: No. A98A1543.,A98A1543.
• Parties: ANDERSON v. SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA.
• Decision Date: 02 November 1998

508 S.E.2d 726
235 Ga. App. 306

ANDERSON
v.
SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA

No. A98A1543.

Court of Appeals of Georgia.

November 2, 1998.

Reconsideration Denied November 17, 1998.

Certiorari Denied February 26, 1999.

508 S.E.2d 728

Word & Simmons, Gerald P. Word, Carrolton, for appellant

Johnson, Dangle & Parmer, Robert F Dangle, Carrollton, for appellee.

508 S.E.2d 727

ANDREWS, Chief Judge

Southern Guaranty Insurance Company of Georgia filed a petition for a declaratory judgment seeking a ruling from the trial court as to its duty to insure and defend its insured, Betty Anderson, under a homeowner's insurance policy. Anderson demanded insurance coverage and a defense under the policy after she was sued for damages by Heddie Ruth Vaughn and her husband, Gary Vaughn, who alleged in their complaint that Anderson injured Heddie Vaughn by the commission of various intentional torts. In granting summary judgment in favor of Southern Guaranty, the trial court declared that no coverage or duty to defend existed because the insurance policy excluded coverage for bodily injury expected or intended by Anderson. Anderson appeals from the grant of summary judgment to Southern Guaranty.

In the action against Anderson, the complaint alleged that Anderson entered the school bus Heddie Vaughn was driving, which was occupied by school children at the time, and began shouting obscenities at Vaughn. Vaughn alleged that Anderson struck her repeatedly with a cane, then grabbed her by the foot and dragged her off the bus onto the ground, where Anderson resumed the attack by striking and kicking her. As a result of the attack, Vaughn alleges that she sustained torn knee ligaments, a gash on her ear, and multiple contusions. In three of the five counts set forth in the complaint, Vaughn alleged that, by this conduct, Anderson committed: (1) assault and battery by striking her with a cane and kicking her; (2) false imprisonment by detaining her on the bus, preventing her from driving away, and dragging her off the bus; and (3) intentional infliction of emotional distress. The fourth count sought the imposition of punitive damages, and the fifth count was a loss of consortium claim by Gary Vaughn.

It is undisputed that Anderson denied the allegations made in the Vaughns' action, and that Anderson claimed any injuries sustained [235 Ga. App. 307] by Vaughn in the incident were accidental and not expected or intended. Anderson asserted that Southern Guaranty was required under the insurance policy to provide her with coverage and to defend her on the allegations in the complaint. It is also undisputed that criminal charges were filed against Anderson as a result of the incident with Vaughn and that Anderson was convicted in a jury trial of aggravated assault on Vaughn with a cane, simple battery by kicking Vaughn, and seven counts of reckless conduct for endangering the safety of school children. The convictions were affirmed on appeal in Anderson v. State, 228 Ga.App. 453, 491 S.E.2d 893 (1997).¹ During the criminal

508 S.E.2d 729

trial, Anderson testified in her own defense that she did not strike or kick Vaughn; that she grabbed Vaughn's foot only to protect herself from being kicked by Vaughn, and that Vaughn tripped or fell out of the bus. Id. at 454, 491 S.E.2d 893. It is clear that, in filing the petition for declaratory judgment, Southern Guaranty was aware of Anderson's contentions that she did not expect or intend to injure Vaughn and that any injuries sustained by Vaughn were accidental.

In its summary judgment motion, Southern Guaranty showed that the insurance policy at issue provided personal liability coverage as follows: "If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will: 1. pay up to our limit of liability for the damages for which the insured is legally liable; and 2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent...." Under the policy, an "occurrence" is defined as "an accident ... which results, during the policy period, in: ... bodily injury;..." "Bodily injury" is defined as "bodily harm, sickness or disease...." The policy also contains an exclusion which provides that personal liability and medical payments coverage does not apply to bodily injury "which is expected or intended by the insured."

Applying these policy provisions, we first conclude that Southern Guaranty had no duty to provide coverage for or to defend against the allegation in the Vaughns' complaint that Anderson injured the Vaughns by intentional infliction of emotional distress. The insurance policy provides for coverage and a defense against "bodily injury" not mental or emotional injury. Because the policy defines "bodily injury" as "bodily harm, sickness or disease," the purely mental harm alleged in the count of the complaint for intentional [235 Ga. App. 308] infliction of emotional distress is not covered by the policy. Bates v. Guaranty Nat. Ins. Co., 223 Ga.App. 11, 12-13, 476 S.E.2d 797 (1996).

The provisions of the policy also clearly provide that Southern Guaranty had a duty to provide coverage and a defense against accidental occurrences in which any resulting bodily injury was not expected or intended by Anderson. In the remaining allegations of the complaint, the Vaughns' complaint alleged intentional conduct by Anderson which was not an accident and which resulted in bodily injury to Vaughn clearly expected or intended by Anderson. Accordingly, Southern Guaranty contends there was no coverage under the policy, and it had no duty to provide a defense to the suit.²

We find no ambiguity in the provisions of the policy limiting coverage to accidental occurrences not expected or intended by Anderson. Continental Cas. Co. v. Parker, 161 Ga.App. 614, 615-616, 288 S.E.2d 776 (1982). It follows that, if the intentional acts by Anderson alleged in the Vaughns' complaint are the true facts, the damages resulting from these intentional acts would clearly have been expected or intended by Anderson, and Southern Guaranty would have no duty to provide liability coverage or a defense. Penn-America Ins. Co. v. Disabled American Veterans, 268 Ga. 564, 565, 490 S.E.2d 374 (1997); Bates, 223 Ga.App. at 14-15, 476 S.E.2d 797; Hain v. Allstate Ins. Co., 221 Ga.App. 486-487, 471 S.E.2d 521 (1996). However, Anderson denied that the facts alleged in the complaint are the true facts. To the contrary, in demanding coverage and a defense from Southern Guaranty, Anderson made general assertions, of which Southern Guaranty was aware, that the true facts showed the injury to Vaughn was accidental and not expected or intended.

508 S.E.2d 730

Just because the Vaughns alleged facts in their complaint that would result in any damages awarded being excluded from coverage does not, as a matter of law, relieve Southern Guaranty of its separate duty to defend the suit. Considered in light of Anderson's claim that the true facts would place the Vaughns' claim within the policy coverage, we conclude that the insurance contract is ambiguous as to Southern Guaranty's duty to defend. See Loftin v. U.S. Fire Ins. Co., 106 Ga.App. 287, 292, 127 S.E.2d 53 (1962)....