Cincinnati Ins. Co. v. Davis
| Decision Date | 19 March 1980 |
| Docket Number | No. 59007,59007 |
| Parties | CINCINNATI INSURANCE COMPANY v. DAVIS. |
| Court | Georgia Court of Appeals |
Edward L. Savell, Atlanta, for appellant.
Tyler Dixon, Oliver D. Peters, Jr., Atlanta, for appellee.
Summary judgment arising out of insurance contract. The facts show that Davis was a landlord renting warehouse space to Hybrid Industries, Inc. Hybrid warehouse items such as television sets in the leased space. Apparently, Hybrid had not been the most prompt payer of rent and Davis, on occasion, had threatened dispossessory proceedings. On the last such occasion, Davis obtained a dispossessory warrant and, being unable to locate Hybrid's agent, had notice of the proceedings tacked on an interior window of the leased premises. At that time Hybrid was at least one month in default on rental. Davis' agent (his son) executed the dispossessory warrant. Accompanied by a deputy sheriff, Davis' agent removed a number of television sets from the warehouse and stored them in another of Davis' warehouses for safekeeping. Hybrid brought suit against Davis for conversion of the television sets (amounting to approximately $53,000) and for malicious use of process. The latter count was dismissed by Hybrid, and Hybrid obtained a partial summary judgment as to liability on the conversion count. The trial court based the grant of partial summary judgment upon the premise that service of notice on Hybird was insufficient and that Davis therefore had improperly taken control of the contents of the warehouse at the time of the dispossession. Davis turned the defense of the lawsuit over to his insurer, Cincinnati Insurance Co. Cincinnati undertook the defense with a reservation of rights on the ground that the contract of insurance did not grant coverage for conversion. Judgment was rendered against Davis for the conversion in the amount of $53,076 with an additional award of punitive damages in the amount of $46,000 (see Davis v. Hybrid Industries, 142 Ga.App. 722, 236 S.E.2d 854). Davis unsuccessfully made demand upon Cincinnati to recover the $99,076 as his insurer. The present suit was then instituted by Davis against Cincinnati. Both parties moved for summary judgment. The trial court granted summary judgment in favor of Davis and denied summary judgment to Cincinnati. It is the grant and denial of these summary judgments that form the basis of Cincinnati's appeal. Held :
Davis had a comprehensive general liability policy of insurance with Cincinnati, similar to an umbrella policy. He also had purchased scheduled underlying policies for specific coverages that formed a part of the umbrella policy. The schedule of underlying policies delineate several differing policies with varying limits of coverage.
Cincinnati urged that the general provisions of the umbrella policy govern all the underlying policies scheduled. The umbrella policy provides payment for all sums which Davis became legally obligated to pay as damages because of an "occurrence" but excluded property damage while that property was in the care, custody or control of the insured or as to which the insured was for any purpose exercising physical control. Moreover, Cincinnati contended that the policy covered only an "occurrence" which was defined as an "accident" which results in property damage neither expected nor intended from the standpoint of the insured. Cincinnati argues first that after conversion the television equipment was within the care and control of Davis and secondly that conversion is an intentional act, not an "accident"; thus, Davis' asserted property damage resulted from wrongfully converting the television sets to his own use. In either event, Cincinnati urges that the exclusionary provisions of the umbrella policy barred recovery by Davis. While Cincinnati advances other variations of these arguments, as we perceive them, all the arguments for non-liability are covered in these two contentions.
Davis contended successfully before the trial court that he was not seeking recovery under the terms of the comprehensive general liability policy but more specifically under the personal injury policy. That policy, without reference to an accident, occurrence or possession of property, provided that Cincinnati would pay on behalf of the insured Davis all sums which Davis should become legally obligated to pay as damages because of injury (called personal injury in this policy) arising out of one or more "offenses" committed in the conduct of Davis' business....
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