Qbe Ins. Co. v. Couch Pipeline & Grading Inc

• Decision Date: 26 March 2010
• Docket Number: No. A09A2409.,A09A2409.
• Citation: 692 S.E.2d 795,303 Ga.App. 196
• Court: Georgia Court of Appeals
• Parties: QBE INSURANCE COMPANYv.COUCH PIPELINE & GRADING, INC.

303 Ga.App. 196

692 S.E.2d 795

QBE INSURANCE COMPANYv.COUCH PIPELINE & GRADING, INC.

No. A09A2409.

Court of Appeals of Georgia.

March 26, 2010.

Hicks, Casey & Foster, Andrea A. Guariglia, Marietta, for appellant.

Thompson, Slagle & Hannan, Alfred A. Malena, Jr., Donald W. Osborne, Duluth, for appellee.

BARNES, Judge.

QBE Insurance Company filed a declaratory judgment action, seeking a declaration that certain work performed by its insured, Couch Pipeline & Grading, Inc. (“Couch”), was not covered under a commercial liability insurance policy. The superior court denied QBE's motion for summary judgment, and we granted QBE's application for interlocutory review of the trial court's order. While the damages arose from an “occurrence,” as defined in the contract, they also arose from defective workmanship and thus are excluded from coverage in the policy. Accordingly, we reverse.

This Court's review of the grant or denial of summary judgment is de novo in order to determine whether any genuine issue of material fact exists for resolution by a jury. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law pursuant to OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Punctuation and footnotes omitted.) McCullough v. Reyes, 287 Ga.App. 483, 484, 651 S.E.2d 810 (2007).

Viewed in this light, the evidence shows that Couch contracted with Georgia Maintenance and Contracting, Inc., to perform certain grading and pipe work during the construction of an office building. QBE issued a commercial liability insurance policy providing Couch with coverage of $2 million during the contract period. Couch billed Georgia Maintenance $36,756.28 for the work; however Georgia Maintenance refused to pay the full amount because it alleged that some of the grading work was defective. It maintained that instead of removing unsuitable soil, Couch covered the soil with good soil and because of the bad soil, the building pad was unable to be compacted 95 percent, the compaction ratio required by the contract. Couch filed an action for the balance of the money it contended Georgia Maintenance owed under the contract. Georgia Maintenance counterclaimed, alleging that Couch negligently performed grading work in that it failed to remove a strand of unsuitable soil which ultimately prevented the building pad from being compacted to the required compaction ratio. QBE filed the underlying action, seeking a declaration that it has no duty to defend or indemnify Couch in the other action. QBE subsequently filed a motion for summary judgment which after a hearing, the trial court denied without explanation.

1. QBE contends that Georgia Maintenance's claims do not arise from an “occurrence” as defined in the policy. The insurance contract provided that the insurance applies only if the “ ‘property damage’ is caused by an ‘occurrence.’ ” The policy defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

In Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms. Although the provisions of an insurance policy will be construed against the insurer when a part is susceptible of two constructions and a court will adopt that interpretation which is most favorable to the insured, if the language is unambiguous and but one reasonable construction is possible, the court will enforce the contract as written. Interpretation of policy provisions which are plain and definite is a matter of law for the trial court, and a policy provision is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.

(Citations and punctuation omitted.) Sapp v. State Farm, etc. Co., 226 Ga.App. 200, 201(1)(a), 486 S.E.2d 71 (1997).

QBE contends that Georgia Maintenance's claims against Couch do not constitute an “occurrence” which would trigger coverage under the policy because an “occurrence” is an accident, and as such coverage under the policy only provides for unexpected happenings rather than intentional torts or occurrences that are reasonably expected to happen. It argues that Couch intentionally placed a layer of good soil over the building pad which contained unsuitable soil, and compacted the pad. Thus, there was no “occurrence”...