Penn-America Ins. Co. v. Disabled American Veterans, Inc.
| Citation | 481 S.E.2d 850,224 Ga.App. 557 |
| Decision Date | 11 February 1997 |
| Docket Number | No. A96A1860,PENN-AMERICA,A96A1860 |
| Parties | , 97 FCDR 545 INSURANCE COMPANY v. DISABLED AMERICAN VETERANS INC., et al. |
| Court | United States Court of Appeals (Georgia) |
Swift, Currie, McGhee & Hiers, Jonathan M. Engram, Dennis A. Brown, Atlanta, for appellant.
Mullis, Marshall, Lindley & Powell, Julius A. Powell, Jr., Miguel A. Garcia, Jr., Macon, for appellees.
Disabled American Veterans, Inc. ("DAV") owned a facility which was covered under a liability insurance policy issued by Penn-America Insurance Company. When Lois Farley slipped and fell on the premises, she and her husband sued DAV, Robert Lee (the post's commander), and McCrary-Adams, Chapter 9, DAV ("McCrary-Adams"). Although the insurance agreement provided that Penn-America would defend DAV, Lee and McCrary-Adams in actions filed against them, Penn-America refused to defend the Farley lawsuit. Farley subsequently dismissed the action against DAV, but not against Lee or McCrary-Adams. Lee and McCrary-Adams moved for summary judgment based on the grounds that: (1) Farley's exclusive remedy was to file a workers' compensation claim; (2) she failed to exercise ordinary care for her own safety; and (3) there was no negligence on Lee's part. The trial court granted summary judgment to Lee and McCrary-Adams without specifying its reason(s) therefor. DAV, Lee and McCrary-Adams then sued Penn-America for refusing to defend them in the Farley action. Penn-America moved for summary judgment, claiming that it had no duty to defend the suit because Farley was injured in the course of her employment, and the policy specifically excludes insurance coverage for bodily injuries to employees arising out of employment. DAV filed a cross-motion for summary judgment, arguing that Penn-America was obligated under the contract to defend the suit filed against DAV, McCrary-Adams and Lee (hereinafter collectively referred to as "the insureds") because the complaint asserted a claim covered by the policy. The trial court granted the insureds' cross-motion and denied Penn-America's motion for summary judgment. Penn-America appeals from the grant of the insureds' cross-motion.
The insurance contract states that Penn-America "will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury ... arising out of the use of the premises ... and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury ... even if any of the allegations of the suit are groundless, false or fraudulent...." The policy also provides that "[t]his insurance does not apply: (i) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured for which the insured may be held liable as an employer."
Whether an insurer is obligated to defend an action against its insured (Punctuation omitted; emphasis in original.) St. Paul Fire, etc., Co. v. Mitchell, 164 Ga.App. 215, 216(1), 296 S.E.2d 126 (1982); compare Al Who Enterprises v. Capitol Indem. Corp., 217 Ga.App. 423, 426(1), 457 S.E.2d 696 (1995). The Farleys' complaint alleges that Lois Farley slipped and fell at DAV's establishment, that DAV was negligent by not providing a clear, dry and accessible walkway around the counter and waitress station, and that this negligence was the cause of the plaintiffs' injuries. Nowhere in the complaint is it alleged that Farley was injured in the course of her employment. Inasmuch as the policy provides that Penn-America will pay for bodily injuries arising out of the use of the premises and that it will defend any suit against the insureds for bodily injuries, and the allegations of the complaint show it to be a personal injury action against the insureds for an injury occurring on the insureds' premises, the allegations clearly assert a claim which falls within the policy coverage and which Penn-America was obligated to defend. See St. Paul Fire, etc., Co., supra at 216(1), 296 S.E.2d 126.
Contrary to Penn-America's argument, the fact that the trial court in the Farley action granted summary judgment to the insureds does not require a different result. Although Penn-America claims the Farley court granted summary judgment to the insureds based on its finding that Farley was...
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