Southern v. Sphere-Drake Ins. Co., Inc., SPHERE-DRAKE
| Decision Date | 13 May 1997 |
| Docket Number | SPHERE-DRAKE,No. A97A1479,A97A1479 |
| Citation | 226 Ga.App. 450,486 S.E.2d 674 |
| Parties | , 97 FCDR 2049 SOUTHERN et al. v.INSURANCE COMPANY, INC. |
| Court | Georgia Court of Appeals |
Barry Staples, L. Chandler Vreeland, Marietta, for appellants.
Alan I. Begner, Scott M. Zahler, Charles M. Goetz, Jr., Benjamin T. Hughes, for appellee.
HAROLD R. BANKE, Senior Appellate Judge.
The instant case arose from a determination of insurance coverage relating to an incident at Kingshead Pub ("Kingshead") in which Danny Southern and Diane Key Cart were allegedly injured during an altercation involving Kingshead's employees. Southern and Cart asserted claims for assault and battery, malicious prosecution, false arrest, and false imprisonment. In addition, they alleged their injuries resulted from Kingshead's negligent hiring, training and supervision of its employees. Southern and Cart sought compensatory and punitive damages. Kingshead's insurer, Sphere-Drake Insurance Company, Inc. ("Sphere-Drake") sought declaratory relief, contending the liability coverage sought fell outside Kingshead's general liability insurance policy. After Sphere-Drake moved for summary judgment, Southern and Cart again amended their complaint to allege in the alternative that their injuries and damages were the result of negligence or negligent acts.
It is undisputed that the subject policy contains the following assault and battery/negligent hiring exclusion: The insurance policy at issue also contains a punitive damages exclusion endorsement.
The trial court determined that neither Kingshead nor its employees were entitled to insurance coverage for any claims arising out of the alleged altercation and its aftermath. In its order, the court noted, Southern and Cart appeal summary judgment granted to Sphere-Drake. Held:
Southern and Cart contend that summary judgment was precluded by unresolved questions of material fact. At the outset, we note that Southern and Cart had a right to amend their complaint regardless of whether the negligence theories raised in the amended complaint were inconsistent with the intentional torts asserted in their earlier complaint. Parties may set forth inconsistent claims and theories and may freely amend their complaint prior to the entry of a pretrial order. OCGA §§ 9-11-8(e)(2); 9-11-15(c); D. H. Overmyer Co. v. Kapplin, 122 Ga.App. 51, 53(1), 176 S.E.2d 207 (1970) ().
Nevertheless, the trial court properly granted Sphere-Drake's motion for summary judgment notwithstanding Southern and Cart's unsuccessful belated effort to incorporate claims for negligence. See Precise v. City of Rossville, 261 Ga. 210, 211(3), 403 S.E.2d 47 (1991) (). Regardless of whether Southern and Cart assert that their injuries were deliberately or negligently inflicted,...
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