Nationwide Mut. Fire Ins. Co. v. City of Rome, A04A0192.

• Decision Date: 02 July 2004
• Docket Number: No. A04A0192.,A04A0192.
• Citation: 268 Ga. App. 320,601 S.E.2d 810
• Parties: NATIONWIDE MUTUAL FIRE INSURANCE COMPANY v. CITY OF ROME, Georgia et al.
• Court: Georgia Court of Appeals

601 S.E.2d 810

268 Ga. App. 320

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY v. CITY OF ROME, Georgia et al.

No. A04A0192.

Court of Appeals of Georgia.

July 2, 2004.

William Dinges, Temple, Strickland & Dinges, Decatur, for Appellant.

Ivy Duggan, Brinson, Askew, Berry, Seigler et al., Rome, for Appellee.

ADAMS, Judge.

Appellant Nationwide Mutual Fire Insurance Company filed a complaint for declaratory judgment seeking a declaration of its rights and obligations under a business owner's insurance policy issued to Acc-Q-Tech Services, Inc., after it received notice that the City of Rome, the Housing Authority of the City of Rome, the Housing Authority of the City of Dublin and the Housing Authority of the City of Rockmart (collectively referred to as the "Cities") intended to file suit against Acc-Q-Tech. The Cities subsequently filed their complaint against Acc-Q-Tech and its principal Renard L. McNeil, alleging breach of private duty, negligence, breach of contract, negligent misrepresentation, common law fraud and Georgia RICO violations. According to the complaint, the Cities contracted with Acc-Q-Tech to prepare and submit applications for Housing and Urban Development (HUD) grants, but Acc-Q-Tech failed to file the applications in accordance with the parties' agreements. The Cities further contended that as the result of this failure they had not been awarded the grants, and they sought, inter alia, $586,000 in damages.

The parties filed motions and cross-motions for summary judgment on the issue of coverage in the declaratory judgment action. The trial court granted the Cities' and Acc-Q-Tech's ("appellees") motion for summary judgment and denied Nationwide's motion, finding that coverage for the claims existed under the policy. Nationwide appeals.

1. In two separate enumerations of error, Nationwide contends that the trial court erred by denying its motion for summary judgment and by granting appellees' motion. Appellees contend that these enumerations are not "specific and definite" and that, therefore, this appeal should be dismissed. We disagree, and find that the errors asserted on appeal have been clearly, definitely and specifically identified in the enumerations and brief. See OCGA §§ 5-6-30; 5-6-48(f); MacDonald v. MacDonald, 156 Ga.App. 565, 568(1)(c), 275 S.E.2d 142 (1980). Appellees' contention that this appeal should be dismissed is without merit. 2. Nationwide contends that the loss alleged in the underlying lawsuit is not for "property damage" as defined by the policy and thus the alleged loss is not covered under the policy. "An insurer's duty to defend is determined by comparing the allegations of the complaint with the provisions of the policy." Batson-Cook Co. v. Aetna Ins. Co., 200 Ga.App. 571, 572, 409 S.E.2d 41 (1991).

The policy defines property damage as follows:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.

In their complaint, as well as their brief on appeal, the Cities allege that they "lost the use of their tangible property which memorialized information required by HUD to be timely submitted." In other words, the Cities argue that the HUD applications were specific, tangible property for which a "loss of use" was suffered. Nationwide argues that the Cities are not seeking to recover the HUD applications, but rather to...