First Financial Ins. Co. v. American Sandblasting Co., A96A1581

• Decision Date: 16 October 1996
• Docket Number: No. A96A1581,A96A1581
• Citation: 223 Ga.App. 232,477 S.E.2d 390
• Parties: , 96 FCDR 3722 FIRST FINANCIAL INSURANCE COMPANY v. AMERICAN SANDBLASTING COMPANY.
• Court: Georgia Court of Appeals

Page 390

477 S.E.2d 390

223 Ga.App. 232, 96 FCDR 3722

FIRST FINANCIAL INSURANCE COMPANY v. AMERICAN SANDBLASTING COMPANY.

No. A96A1581.

Court of Appeals of Georgia.

Oct. 16, 1996.

Crim & Bassler, Terence D. Williams, Atlanta, Michael O. Sheridan, for appellant.

Kim G. Meyer, Atlanta, for appellee.

POPE, Presiding Judge.

Defendant First Financial Insurance Company issued a general liability policy to plaintiff American Sandblasting Company. The policy provided coverage for the painting of structures three stories or less in height. Plaintiff was painting a bridge less than three stories tall when paint overspray damaged numerous vehicles on a car dealer's lot. Within 30 days after plaintiff filed a claim, defendant denied coverage. Plaintiff requested reconsideration and notified defendant that it intended to seek bad faith damages if defendant continued to deny the claim. Defendant reiterated its denial. More than 60 days later, plaintiff filed suit for the overspray damages it paid the car dealer. It also sought bad faith damages and attorney fees pursuant to OCGA § 33-4-6. Subsequently, the trial court granted partial summary judgment to plaintiff regarding defendant's liability under the policy, but reserved the issue of bad faith damages and attorney fees for trial. Following a bench trial, plaintiff was awarded these damages.

1. Defendant contends plaintiff's claim was not covered under the policy due to an exclusion clause, and thus the trial court erred in granting plaintiff partial summary judgment. We disagree.

It is well settled that insurance policies, even when ambiguous, are to be construed by the court, and no jury question is presented unless an ambiguity remains after application of the applicable rules of contract construction. Alley v. Great American Ins. Co., 160 Ga.App. 597, 599, 287 S.E.2d 613 (1981). "Because insurance policies are contracts of adhesion, drawn by the legal draftsman of the insurer, they are to be construed as reasonably understood by an insured. Exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms." (Citation and punctuation omitted.) St. Paul Fire, etc., Ins. Co. v. Snitzer, 183 Ga.App. 395, 397(1), 358 S.E.2d 925 (1987).

Here, the exclusion clause provides that: "This insurance does not apply to ... 'property damage,' ... arising out of pile driving, caisson, coffer dam, subway, sewer, tunnel, bridge, dam, subaqueous or dredging construction or operations." Defendant contends that painting a bridge constitutes "bridge operations," and thus that the exclusion clause is applicable. Specifically, defendant argues that the term "operations," which is not defined in the policy, means the "doing or performing of a practical work or of something involving the practical application of principles or processes...." See Webster's Third New Intl. Dictionary at 1581(1b) (1981). According to defendant, the process at issue here is painting, and the act of painting constitutes the application of that process, in this case, to a bridge. While such an interpretation is plausible, it is clear that the term "operations," as used in the clause at issue, is capable of more than one reasonable interpretation. As plaintiff argues, "operation" also is defined as "the quality or state of being functional or operative----" or "the operating of...." See Webster's at 1581(2b), (10). Consequently, "bridge operations" could reasonably refer to the functioning of or operating of a bridge, such as a drawbridge or toll bridge. Under such an interpretation, the exclusion clause would not apply.

"[I]f an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured." (Citation omitted.) Claussen v. Aetna Cas., etc., Co., 259 Ga. 333, 334-335(1), 380 S.E.2d 686 (1989). Applying this rule of construction, as well as those mentioned above, we conclude that the exclusion clause is not applicable. Accordingly, the trial court did not err in granting plaintiff's partial summary judgment motion.

2. We also reject defendant's contention that the trial court erred in awarding plaintiff bad faith damages and attorney fees pursuant to OCGA § 33-4-6. The question of bad faith is for the trier of fact, Snitzer, 183 Ga.App. at 397(2), 358 S.E.2d 925, and a "judgment (for bad faith penalties and attorney fees) should be affirmed if there is any evidence...