Southern Trust Ins. Co. v. Eason

• Decision Date: 14 May 1975
• Docket Number: No. 50575,No. 2,50575,2
• Citation: 134 Ga.App. 827,216 S.E.2d 667
• Parties: SOUTHERN TRUST INSURANCE COMPANY v. Sara F. EASON et al
• Court: Georgia Court of Appeals

Page 667

216 S.E.2d 667

134 Ga.App. 827

SOUTHERN TRUST INSURANCE COMPANY v. Sara F. EASON et al.

No. 50575.

Court of Appeals of Georgia, Division No. 2.

May 14, 1975.

Syllabus by the Court

Where the plaintiff in a pending tort action sued the insured charging him with the negligent killing of her son, and the insurer contended that the act was in fact wilful and intentional and therefore not covered under its contract, it was entitled while defending under a reservation of rights agreement to seek a declaratory judgment to determine whether coverage in fact existed.

This is an appeal from an order dismissing a complaint for declaratory judgment. Mrs. Eason's son was killed by a pistol shot while attending a part at the home of French. She brought a death action against French alleging that his negilgence in carrying a loaded pistol in his hand, and in allowing, it to fire a bullet which killed her son, proximately caused the death. French called on his insurer, appellant Southern Trust Insurance Co., to defend under the terms of homeowner's liability policy, Section II, Coverage E: 'This Company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent.' An occurrence means 'an accident, including injurious exposure to conditions, which results during the policy term in bodily injury.'

After obtaining reservation of rights agreement the company filed an answer on behalf of its insured, French, and then filed this declaratory judgment complaint, naming both French and Eason as defendants and seeking a judgment declaring lack of coverage based on Exclusion (f) of Coverage E: 'to bodily injury . . . which is either expected or intended from the stand-point of the insured.'

Henry C. Head, S. James Tuggle, Carrollton, for appellant.

Gilbert & Bone, Aubrey W. Gilbert, Tisinger & Tisinger, J. Thomas Vance, Carrollton, for appellees.

DEEN, Presiding Judge.

In declaratory judgment cases involving coverage vel non, a distinction exists between the insurer' right to a declaration settling the matter where it hestitates whether or not to defend a pending action (as in LaSalle National Ins. Co. v. Popham, 125 Ga.App. 724, 188 S.E.2d 870), and where that action has already been prosecuted to judgment, or the suit is in the first instance between a putative claimant or insured and the insurer (as in State Farm v. Hillhouse, 131 Ga.App. 524(4), 206 S.E.2d 627; Provident Life & Acc. Ins. Co. v. United Family Life Ins. Co., 233 Ga. 540, 212 S.E.2d 326). Where the action between tortfeasor and insurer is pending, declaratory judgments are regularly permitted to an insurer of the defendant who seeks construction of policy language and like questions of law, as in Nationwide Mutual Ins. Co. v. Peek, 112 Ga.App. 260, 145 S.E.2d 50. Where it neither appears that there is a dispute over the meaning of the contract or the facts sought to be applied, a general demurrer should be sustained. Hatcher v. Ga. Farm Bureau Mut. Ins. Co., 112 Ga.App. 711, 146 S.E.2d 535. 'If an insurer has knowledge of the facts but does not feel safe in making a determination as to a proper course of action it may enter upon a defense...