Cantrell v. Allstate Ins. Co., A91A2006

• Decision Date: 17 February 1992
• Docket Number: No. A91A2006,A91A2006
• Parties: CANTRELL v. ALLSTATE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 711

415 S.E.2d 711

202 Ga.App. 859

CANTRELL v. ALLSTATE INSURANCE COMPANY.

No. A91A2006.

Court of Appeals of Georgia.

Feb. 17, 1992.

Harp & Associates, B. Seth Harp, Jr., Columbus, for appellant.

Page, Scrantom, Harris & Chapman, Richard A. Marchetti, Columbus, for appellee.

SOGNIER, Chief Judge.

Allstate Insurance Company brought a declaratory judgment action to determine its obligations to its insured Lloyd Cantrell concerning a separate lawsuit previously filed by others against Cantrell. Allstate prevailed on its motion for summary judgment, and Cantrell appeals.

Appellant is an insured under a homeowners policy issued by appellee. In July 1990 Gene Naugher, William E. Hubbard, and Sue Hubbard Burke brought suit against appellant and two other defendants asserting claims for false imprisonment, malicious prosecution, and conspiracy, and seeking general and punitive damages (hereinafter referred to as the "Naugher suit"). When appellee was notified of the Naugher suit, it issued a reservation of rights letter to appellant and subsequently filed this action to determine its obligations to defend appellant and cover the claim.

The policy provides for liability coverage for "all sums arising from an accidental loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage covered by [the liability section] of the policy," and excludes from liability coverage "any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by an insured person." "Bodily injury" is defined as "bodily injury, sickness or disease, including required care, loss of services and resulting death." The trial court concluded that these provisions excluded the Naugher suit from coverage under the policy.

Appellant contends material fact questions remain concerning the nature of the claims asserted in the Naugher suit and the adequacy of his notice to appellee so as to preclude the grant of summary judgment. We disagree, as we find the policy language clearly excludes coverage for the claim at issue, and thus hold the question of notice is not material.

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.' [Cit.]" (Emphasis and footnote omitted.) Great American Ins. Co. v. McKemie, 244 Ga. 84, 85-86, 259 S.E.2d 39 (1979). Contrary to appellant's contentions, the material fact question in this declaratory judgment action is not whether the Naugher suit has merit but whether the suit alleges a claim that is covered by the policy. St. Paul Fire, etc., Ins. Co. v. Mitchell, 164 Ga.App. 215, 216(1), 296 S.E.2d 126 (1982). "[A] distinction [is] drawn between groundless suits and actions which, even if successful would not be within the policy coverage," (punctuation and citations omitted), Great American Ins., supra, 244 Ga. at 85, 259 S.E.2d 39, and the insurer is only obligated to defend the former. Id.

The Naugher suit plaintiffs clearly and unequivocally manifest not only...