Southern Guar. Ins. Co. of Georgia v. Saxon

• Decision Date: 21 February 1989
• Docket Number: No. 77229,77229
• Citation: 379 S.E.2d 577,190 Ga.App. 652
• Parties: SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA v. SAXON.
• Court: Georgia Court of Appeals

Page 577

379 S.E.2d 577

190 Ga.App. 652

SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA v. SAXON.

No. 77229.

Court of Appeals of Georgia.

Feb. 21, 1989.

Rehearing Denied March 9, 1989.

Wetzel, Shaw & Quinn, Michael L. Wetzel, Decatur, John R. Shaw, Jr., for appellant.

Heard, Leverett & Phelps, E. Freeman Leverett, Elberton, for appellees.

BEASLEY, Judge.

Southern Guaranty Insurance Company, plaintiff in an action for declaratory judgment, appeals from an order granting defendants Joel and Alan Saxon's and Rhonda Lamb's motions for summary judgment.

On August 12, 1987, Alan Saxon was driving a truck owned by his father Joel and insured under a Southern Guaranty commercial automobile liability policy. Rhonda, a fifteen-year-old passenger, was being sought by the Department of Social Services. When a police vehicle pulled behind them and its blue light was activated she exclaimed: "Please don't let them get me." They just "took off," said Alan, and a chase at speeds of "seventy-five, eighty [m.p.h.], somewhere in there" ensued, which lasted for around twenty minutes and covered between twenty and twenty-five miles. While traveling over a dirt road, the truck struck a ditch and overturned, injuring Alan and Rhonda.

Rhonda sued Alan in tort to recover damages for her personal injuries. Southern Guaranty brought a declaratory judgment action to determine whether it would be required to provide a defense for Alan and to pay any damages for which he might become legally obligated. The issue presented is whether the evidence conclusively establishes that the policy exclusion is not applicable, so that there is liability coverage.

Joel Saxon's policy recited that Southern Guaranty would pay on behalf of its insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage caused by an "occurrence" and arising out of the ownership, maintenance or use of the owned automobile. "Occurrence" is defined in the policy as an "accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." Compare American Protection Ins. Co. v. Parker, 150 Ga.App. 732, 733(3a), 258 S.E.2d 540 (1979); Thrift-Mart v. Commercial Union, etc., Cos., 154 Ga.App. 344, 346(1), 268 S.E.2d 397 (1980).

We are confronted with the limited questions of construction of the provision and whether it is shown as a matter of law that Alan neither expected nor intended an injurious result from his acts.

In applying the rules of construction insurance policy exclusions are construed most strongly against the insurer and in favor of providing the indemnity sought. State Farm Fire, etc., Co. v. Morgan, 185 Ga.App. 377, 379, 364 S.E.2d 62 (1987), aff'd 258 Ga. 276, 368 S.E.2d 509 (1988). "An accident refers to an unexpected happening rather than one occurring through intention or design." Travelers Indem. Co. v. Hood, 110 Ga.App. 855, 857, 140 S.E.2d 68 (1964). "[A]cts could not be unexpected unless they were accidental." Thrift-Mart, supra, 154 Ga.App. at 346, 268 S.E.2d 397. Accord Stein v. Mass. Bay Ins. Co., 172 Ga.App. 811, 812, 324 S.E.2d 510 (1984).

The provision in this case was instrumental in Ga. Farm Bureau, etc., Ins. Co. v. Ray, 148 Ga.App. 85, 86, 251 S.E.2d 34 (1978). It was held that this language is plain, unambiguous and capable of only one reasonable interpretation. "[I]n such instances the language used must be afforded its literal meaning and plain ordinary words must be given their usual significance." The policy provision "will not cover those damages caused intentionally by any insured." Ga. Farm, etc., Ins. Co., supra at 86, 251 S.E.2d 34.

This was followed in Continental Cas. Co. v. Parker, 161 Ga.App. 614, 616(1), 288 S.E.2d 776 (1982). We are in agreement regarding the meaning, but the facts here yield a different result. While the evidence in Continental was in conflict, leaving for a jury whether the insured's acts "were intentional and thus excluded by the policy," id. at 617, 288 S.E.2d 776, here the evidence is one-sided.

Alan testified by deposition that he had no intention of injuring anyone, including himself, and that he had no fear of wrecking the truck or thought that it might occur as a result of his driving. A wreck ensuing never crossed his mind. His sole aim was to evade capture by the police.

The policy clearly envisions a subjective test as to the insured's intention. Specific intent is called for by the policy. It can be a partial intent, i.e., combined with other intents, and even a minor intent in the composite of intents of the actor. But there cannot be an absence of that intent or there will be coverage. Insured does not necessarily have to prove a different specific intent, just an absence of the affirmative intent to injure, to be covered. Of course, it is easiest to convince of this absence by showing the presence of a different intent, ignoring the possibility of multiple intents.

Intent may be manifested by objective factors. Alan denied any intent to cause injury. The objective factors only show that he intended to avoid apprehension by the police and in doing so he violated the law.

Insurer does not focus on the evidence, which it must to avoid the summary judgment, since evidence of intention is what the whole controversy is about. Insurer must show there is a question of fact about insured's intent. It must show that insured has not conclusively established as fact that he had no intent or expectation to injure by his act of driving as he did. But the insurer put no wedge in this testimony. That is what it would have to do to avoid the summary judgment. This case is dissimiliar from Roe v. State Farm Fire & Cas. Co., 188...