Brayman v. Allstate Ins. Co., A93A2208

• Decision Date: 15 February 1994
• Docket Number: No. A93A2208,A93A2208
• Citation: 441 S.E.2d 285,212 Ga.App. 96
• Parties: BRAYMAN et al. v. ALLSTATE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 285

441 S.E.2d 285

212 Ga.App. 96

BRAYMAN et al. v. ALLSTATE INSURANCE COMPANY.

No. A93A2208.

Court of Appeals of Georgia.

Feb. 15, 1994.

Richard D. Phillips, Ludowici, for appellants.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, Savannah, for appellee.

COOPER, Judge.

Allstate Insurance Company brought a declaratory judgment action against its insureds, Lawrence and Shirley Brayman, to determine its obligations to the Braymans with respect to a lawsuit brought against them for slander. ¹ The trial court granted Allstate's motion for summary judgment and the Braymans appeal.

Allstate issued a homeowners insurance policy to the Braymans which provides in pertinent part as follows: "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 excludes from coverage any bodily injury or property damage resulting from "an act or omission intended or expected to cause bodily injury or property damage ... even if the bodily injury or property damage is of a different kind or degree, or is sustained by a different person or property, than that intended or expected." "Bodily injury" is defined as "physical harm to the body, including sickness or disease, and resulting death." In July 1990, plaintiff Little brought suit against the Braymans alleging they had made numerous false and malicious statements to others that she was a homosexual and that such statements were deliberately calculated to injure her, constituted slander per se, and had caused her great mental pain and anguish.

1. The Braymans' sole enumeration of error is that the trial court erred in granting summary judgment to Allstate because the claim for slander is covered under that portion of the policy providing coverage for bodily injury. "An insurer's duty to defend is determined by the insurance contract; and since the contract obligates the insurer to defend claims asserting liability under the policy, even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted." (Citations and punctuation omitted.) Cantrell v. Allstate Ins. Co., 202 Ga.App. 859, 860, 415 S.E.2d 711 (1992). "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 the broader term 'personal injury.' " (Citations omitted.) Presidential Hotel v. Canal Ins. Co., 188 Ga.App. 609, 611, 373 S.E.2d 671 (1988). The plaintiff's complaint against the Braymans alleges only a non-physical injury, Oliver v. Wal-Mart Stores, 209 Ga.App. 703, 704, 434 S.E.2d 500 (1993), and seeks damages for purely mental harm. Presidential Hotel, supra 188 Ga.App. at 611, 373 S.E.2d 671. Thus, the plaintiff's complaint does not seek damages for "bodily injury" within the meaning of the policy provisions. Id.

Furthermore, even if we were to assume the plaintiff did assert a claim for bodily injury, such would only be covered if it occurred as the result of an accident....