Scottsdale Ins. Co. v. Great American Assur. Co.
| Decision Date | 04 February 2005 |
| Docket Number | No. A04A2148.,A04A2148. |
| Citation | 610 S.E.2d 558,271 Ga. App. 695 |
| Parties | SCOTTSDALE INSURANCE COMPANY v. GREAT AMERICAN ASSURANCE COMPANY. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Freeman, Mathis & Gary, Philip W. Savrin, Kelley R. Purdie, Atlanta, for appellant.
Mabry & McClelland, Robert M. Darroch, Joseph J. Dinardo, Samantha R. Johnson, Atlanta, for appellee.
Scottsdale Insurance Company (Scottsdale) appeals from the grant of summary judgment to Great American Assurance Company (Great American) on its claim to satisfy a judgment entered against Great American's insured.1 For the following reasons, we affirm.
To prevail on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). When reviewing the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).
Viewed in the light most favorable to Scottsdale, the evidence showed that Moresi & Blum leased certain space to Pearle Vision, Inc. (Pearle). The lease agreement contained an indemnification provision in which Moresi & Blum agreed to "indemnify [Pearle] and save it harmless from all suits, actions, damages, liability and expense in conjunction with loss of life, bodily or personal injury or property damage arising from or out of any occurrence in, upon, at or from the Leased Premises...." Moresi & Blum subsequently subleased a portion of the space to Dr. Kendall Mullins. This sublease agreement contained an indemnification provision identical to the provision in the Moresi & Blum/Pearle lease.
In 1998, Melissa Neill sued Mullins, Pearle, and several other parties alleging negligence in the misdiagnosis of her medical condition. After Moresi & Blum's insurer, Great American, refused to provide a defense to Pearle pursuant to the indemnification provision in the lease agreement, Scottsdale, as Pearle's insurer, settled with Neill.
Scottsdale subsequently brought a claim against Moresi & Blum for the failure to indemnify Pearle, and was awarded a judgment of $3 million. Scottsdale then sought to collect payment from Great American, Moresi & Blum's insurer. Great American moved for summary judgment on the ground that Scottsdale's claim was not covered by Moresi & Blum's policy. The trial court granted the motion and Scottsdale now appeals.
On appeal, Scottsdale argues that the lease agreement is an "insured contract" pursuant to the Great American policy and that Great American is therefore obligated to pay the judgment entered against Moresi & Blum. We disagree.
Based upon the plain language of the policy, Great American was obligated to pay only those sums that Moresi & Blum was itself obligated to pay as damages because of bodily injury, personal injury, property damage, or advertising injury. Here, Scottsdale seeks payment from Great American based upon a judgment entered against Moresi & Blum for the failure to indemnify Pearle as agreed to in...
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