Colonial Penn Ins. Co. v. Hart
| Decision Date | 12 May 1982 |
| Docket Number | 63336,Nos. 63335,s. 63335 |
| Citation | 162 Ga.App. 333,291 S.E.2d 410 |
| Parties | COLONIAL PENN INSURANCE COMPANY v. G. W. HART et al. G. W. HART et al. v. COLONIAL PENN INSURANCE COMPANY et al. |
| Court | Georgia Court of Appeals |
Ronald R. Womack, LaFayette, for Colonial Penn Ins. Co.
Frank M. Gleason, Rossville, for Harts.
Jon Bolling Wood, LaFayette, for Rices.
During the early morning hours of June 23, 1978, Gary W. Hart, a minor, was walking on a public road which ran beside the residence of Edward and Ethel Rice (the Rices). The minor was struck with pellets from a shotgun when Mr. Rice stepped from his house and intentionally discharged the weapon. Subsequently, Gary Hart and his father (the Harts) filed a civil action against the Rices seeking to recover for personal injuries and damages allegedly resulting from the incident.
Colonial Penn Insurance Company (Colonial Penn) had issued the Rices a home owner's liability policy which was in effect at the time of the shooting. Colonial Penn brought the instant declaratory judgment action naming both the Rices and Harts as defendants and seeking a judgment declaring lack of coverage under the following exclusionary provision of the policy: "This policy does not apply ... to bodily injury ... which is either expected or intended from the standpoint of the Insured."
In their responsive pleadings to the complaint, the Harts asserted cross-claims against the Rices for damages allegedly resulting from the complained of incident. The Harts also counterclaimed against Colonial Penn alleging liability under the policy issued to the Rices. By order dated February 16, 1981, the trial court granted Colonial Penn's motion to dismiss the counterclaims. By order dated April 7, 1981, the trial court granted the Rices' motion to dismiss the cross-claims.
After discovery, the matter was submitted to a jury and a verdict in favor of the Rices and the Harts and against Colonial Penn was returned. In Case No. 63335 Colonial Penn has filed a notice of appeal from the judgment entered on the jury verdict. In Case No. 63336 the Harts appeal from the trial court's orders dated February 16, 1981, and April 7, 1981, dismissing their counterclaims and cross-claims, respectively. The Harts also appeal from the judgment entered on the jury verdict insofar as the judgment failed to include a provision that Colonial Penn would be liable for any amount adjudicated against the Rices in the tort action.
1. Mullinax v. Singleton, 139 Ga.App. 704, 705(1), 229 S.E.2d 518 (1976). Accord, Ga. Farmers' Market Auth. v. Dabbs, 150 Ga.App. 15, 16 (1), 256 S.E.2d 613 (1979).
2. Colonial Penn enumerates as error the denial of its motion for a directed verdict. The evidence presented at trial showed that the Rices' home had been the focal point of several past acts of vandalism and malicious mischief. On the night in question, Mrs. Rice was apparently awakened by strange noises and she awakened Mr. Rice. Upon peering out of the garage door, Mr. Rice observed Gary Hart "thr[ow] a rock against the house." Mr. Rice then stepped from the garage, confronted Gary Hart, and as the minor turned to run, Mr. Rice intentionally discharged his shotgun twice. The first shot was fired "straight up in the air." Realizing that a shot directly overhead might strike a power line leading to his house, Mr. Rice lowered the shotgun to "about a forty-five degree angle" and fired the second shot in the direction in which Gary Hart had run but "way up over his head up in the trees." Mr. Rice testified that his sole purpose in firing the shotgun was to scare Gary Hart and that he did not intend to injure or harm the boy in any manner.
Colonial Penn predicated its motion for directed verdict upon the fact that Mr. Rice intentionally fired the shotgun. Colonial Penn urges that this intentional act of its insured brought the exclusionary provision into play thereby barring coverage under the policy and, as there was no conflict in the evidence, judgment in its favor was demanded. However, the issue in the instant case was not whether Mr. Rice intentionally fired the shotgun. This fact is uncontroverted. Rather, Transamerica Ins. Co. v. Thrift-Mart, 159 Ga.App. 874, 881, 285 S.E.2d 566 (1981).
The general rule which appears to have developed through judicial interpretation and application of exclusionary provisions such as the one in the instant case is that they are inapplicable if and only if the insured acts without the intent or expectation of causing any injury, however slight. Conversely, such an exclusion is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected. See generally, Annot. 2 A.L.R.3d 1238, 1243 § 4 (1965). Thus, there is a recognized distinction between intentional and unintentional results of intentional acts. "Intent" is defined in Restatement, Torts 2d, § 8A (1965) "to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." "On the other hand, the mere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent." Prosser, The Law of Torts, p. 32 § 8 (4th ed. 1971).
In the instant case, Mr. Rice testified that he had no intention of harming Gary Hart, but merely fired the shotgun in order to frighten him. Apparently, the jury believed that Mr. Rice neither intended nor expected bodily injury to result from his otherwise intentional acts. The evidence certainly did not demand a finding that Mr. Rice intended to cause the bodily injuries or that he knew the injuries were substantially certain to follow from his actions. Accordingly, the trial court did not err in denying Colonial Penn's motion for a directed verdict.
3. Colonial Penn next asserts that the trial court erred in charging the jury as to certain legal principles applicable to the construction of the insurance policy. American Cas. Co. v. Crain-Daly, 129 Ga.App. 576, 579, 200 S.E.2d 281 (1973). California Ins. Co. v. Blumburg, 101 Ga.App. 587, 591-592, 115 S.E.2d 266 (1960).
As previously noted, Transamerica Ins. Co. v. Thrift-Mart, 159 Ga.App. at 881, 285 S.E.2d 566, supra. Under the facts of the instant case we are unable to say that the error was harmless. Compare South Georgia Trust Co. v. Neal, 174 Ga. 24 (2), 161 S.E. 815 (1931).
4. Colonial Penn contends that the trial court erred in giving certain instructions to the jury on the law of negligence which were not adjusted to the evidence. Rolan v. Rittenhouse, 107 Ga.App. 769, 770 (3), 131 S.E.2d 112 (1963). Even assuming that the charges on negligence were not warranted by the evidence, Colonial Penn has failed to demonstrate any manner in which it was harmed by such instructions. Accordingly this enumeration is without merit.
5. Remaining enumerations of error not specifically addressed have been considered and found to be without merit.
6. Colonial Penn moved to dismiss the Harts' counterclaims against it on the grounds that they failed to state a claim upon which relief could be granted and that the counterclaims were premature inasmuch as the liability of its insured had not yet been established. The Rices moved to dismiss the Harts' cross-claims on the grounds that they failed to state a claim upon which relief could be granted and that the relief sought by the cross-claims was not maintainable in a declaratory judgment action. In Case No. 63336, cross-appellants, the Harts, enumerate as error the granting of these motions.
"The purpose of the Declaratory Judgment Act [Ga.L.1945, p. 137; 1959, p. 236 (Code Ann. § 110-1101 et seq.)] 'is to settle and...
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