Bates v. Guaranty Nat. Ins. Co.

• Decision Date: 27 September 1996
• Docket Number: No. A96A1016,A96A1016
• Citation: Bates v. Guaranty Nat. Ins. Co., 476 S.E.2d 797, 223 Ga.App. 11 (Ga. App. 1996)
• Parties: BATES v. GUARANTY NATIONAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 797

476 S.E.2d 797

223 Ga.App. 11

BATES v. GUARANTY NATIONAL INSURANCE COMPANY.

No. A96A1016.

Court of Appeals of Georgia.

Sept. 27, 1996.

Monte K. Davis, Atlanta, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Leslie B. Zacks, Dennis G. Lovell, Jr., J. Arthur Lee, Jr., Atlanta, for appellee.

RUFFIN, Judge.

Guaranty National Insurance Company ("Guaranty National") filed a declaratory judgment action against Michael Bates, and Bates appeals from the trial court's grant of summary judgment to Guaranty National. For reasons which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). "A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]" Id.

Viewed in that light, the record shows the following: Leon Baker entered a store owned by Foodmart Stores ("FMS") where Bates was an employee. Bates became hostile when Baker attempted to purchase items with a $50 bill, and Bates shoved Baker with both hands, pointed a handgun at Baker, and told Baker to leave the store. Baker filed a complaint against FMS and Bates, alleging negligence, assault, aggravated assault, simple battery, battery and intentional infliction of emotional distress.

When the incident occurred, FMS was insured by Guaranty National. Guaranty National filed a complaint for declaratory judgment against Bates and FMS to determine whether coverage was available under the applicable insurance policy. Subsequently, Guaranty National moved for summary judgment, asserting its insurance policy did not provide coverage for the claims alleged by Baker in the underlying tort action. The trial court granted Guaranty National's motion for summary judgment.

Guaranty National's policy contains the following language under the heading "Bodily Injury And Property Damage Liability": "We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.... This insurance applies to bodily injury and property damage only if: (1) The bodily injury or property damage is caused by an occurrence that takes place in the coverage territory...." "Bodily injury" is defined as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." "Occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The policy excludes "[b]odily injury or property damage expected or intended from the standpoint of the insured[,]" but states that the exclusion "does not apply to bodily injury resulting from the use of reasonable force to protect persons or property."

In addition, the policy applies to "[p]ersonal injury caused by an offense arising out of [FMS's] business...." "Personal injury" is defined as "injury, other than bodily injury, arising out of one or more of the following offenses: false arrest, detention or imprisonment; malicious prosecution; wrongful eviction or invasion of privacy; slander or libel; and oral or written invasion of privacy."

Bates contends the trial court erred in granting Guaranty National summary judgment because questions of material fact exist regarding (1) whether Bates acted with "reasonable force" in defending himself and store property and (2) whether Bates acted with the "intent to injure" Baker. Guaranty National contends (1) the alleged assault and battery was an intentional act and, therefore, excluded from coverage and (2) Baker's injuries are not "bodily injuries" covered by the policy.

1. We agree with Guaranty National that the injuries alleged by Baker in Counts 1 through 4 and 8 of his underlying tort action are not "bodily injuries" covered by the policy. In Brayman v. Allstate Ins. Co., 212 Ga.App. 96(1), 441 S.E.2d 285 (1994), we construed a similar definition of "bodily injury" and denied coverage to the insured because the underlying litigation alleged only mental pain and anguish. "Used in an insurance policy, the term 'bodily injury' means just that--'bodily injury.' It pertains to physical injury to the body. It does not include non-physical, emotional or mental harm. And it cannot be equated with a broader term 'personal injury.' " (Citations and punctuation omitted.) Id. at 96-97, 441 S.E.2d 285. See also Presidential Hotel v. Canal Ins. Co., 188 Ga.App. 609, 611, 373 S.E.2d 671 (1988).

In the present case, Counts 1 through 4 and Count 8 of Baker's underlying complaint against Bates allege only non-physical injuries and seek damages for purely mental harm. Under Counts 1, 2 and 3, dealing with negligence and gross negligence, Baker's complaint alleges "immediate and delayed harm for mental anguish, embarrassment, and hurt feelings" as a direct and proximate result of Bates' actions. Likewise, Count 4, asserting simple assault, alleges that Baker was frightened and in apprehension of receiving a violent injury, and Count 8, asserting intentional infliction of emotional distress, alleges strictly non-physical damages.

Thus, Baker's alleged injuries in these counts are not bodily injuries covered by the policy. In addition, Baker's alleged injuries in these counts are not covered "personal injuries" because they do not arise from one of the specifically enumerated torts in the policy.

However, the remaining counts of Baker's underlying complaint are sufficient under Code pleading requirements to allege physical injuries incurred as a result of Bates' tortious conduct, including his intentional shoving of Baker. See, e.g., Gonzalez v. Zant, 199 Ga.App. 13, 403 S.E.2d 880 (1991). Counts 5, 6 and 7, dealing with aggravated assault, simple battery and battery, merely allege that Baker "has been damaged as a result of" Bates' tortious actions, including an intentional shoving by Bates "upon his person." These counts, which allege shoving and damage, can be liberally construed as alleging physical injury. Since there is no evidence in the record contradicting Baker's allegations of physical injuries, we must determine whether the claims alleged in Counts 5, 6 and 7 are otherwise excluded by the policy.

2. Having concluded that Counts 5, 6 and 7 of Baker's underlying complaint assert a claim for bodily injury, we must determine whether the claims are excluded because they allege intentional acts or whether they are excepted from the exclusion because Bates was using reasonable force to protect himself or store property. Although it is clear that Baker's assertions of aggravated assault, simple battery and battery all...