Al Who Enterprises, Inc. v. Capitol Indem. Corp., A95A0700
| Decision Date | 10 May 1995 |
| Docket Number | No. A95A0700,A95A0700 |
| Citation | 217 Ga.App. 423,457 S.E.2d 696 |
| Parties | AL WHO ENTERPRISES, INC. et al. v. CAPITOL INDEMNITY CORPORATION. |
| Court | Georgia Court of Appeals |
Self, Mullins, Robinson, Marchetti & Kamensky, Ronald W. Self, M. Peterson Robinson, Columbus, for appellants.
Warren S. Shulman, Harp & Johnson, Gary L. Johnson, Columbus, Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Leslie S. Sullivan, Atlanta, for appellee.
According to the allegations of the complaint, appellant Fleming owns and operates a nightclub in Columbus, known as Al Who's Place. 1 The restaurant was insured by appellee Capitol Indemnity Corporation under a general commercial liability policy issued to appellant Al Who Enterprises, Inc. Hanlon and Karpew, servicemen stationed at Fort Benning, instituted tort suits against Al Who Enterprises, Inc., Fleming, Howard (the manager of Al Who's Place), and others as a result of an altercation which erupted in the vicinity of the nightclub. The insurer sought a declaratory judgment as to its policy obligations concerning those suits. Fleming and the corporate defendant appeal the superior court's partial grant of the appellee's motion for summary judgment.
Tort suits
In Count I of their respective complaints, Hanlon and Karpew sought compensatory and punitive damages, based on allegations that Howard and other nightclub employees assaulted and battered them without just cause or provocation, causing them to sustain multiple injuries.
Based on allegations that the nightclub's agents and employees had committed an assault upon him by threatening to cause his arrest and by actually causing him to be handcuffed, which caused him to fear arrest and imprisonment without just cause or provocation, Karpew sought compensatory and punitive damages for the intentional infliction of emotional harm in Count II of his complaint.
Both Hanlon and Karpew alleged that Fleming misrepresented to their commanding officers that they were the aggressors and had caused the fight. In this connection, Hanlon sought compensatory and punitive damages for intentional infliction of emotional harm (Count II of his complaint) and for libel and slander (Count III), and Karpew sought compensatory and punitive damages for libel and slander (Count IV of his complaint).
Karpew also sought both types of damages for false imprisonment (Count III), alleging that the nightclub's agents and employees forcibly restrained and imprisoned him by preventing him from leaving the premises and by causing him to be handcuffed by the police.
Disputed facts
In Howard's affidavit opposing summary judgment, he testified that Hanlon and Karpew exhibited aggressive behavior at the scene of the altercation, posing immediate danger to others; that he and other nightclub employees merely restrained them in order to keep them from escaping and injuring others before the police arrived; and that at no time did he injure them, commit any intentional act resulting in injury to them, or direct others to injure them.
Policy provisions
Policy Coverage A, for bodily injury and property damage liability, states:
An exclusion within Coverage A states:
Coverage B, which is for personal and advertising injury liability, states:
An exclusion within Coverage B states: "This insurance does not apply to: a. 'Personal injury' or 'advertising injury': (1) Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity."
An endorsement containing an exclusion for assault and battery states: "This insurance does not apply to bodily injury, property damage or personal injury arising out of assault, battery, or assault and battery." (Emphases deleted.) This exclusion defines "assault" as "[a] willful attempt or offer with force or violence to harm or hurt a person without the actual doing of the harm or hurt." It defines "battery" as "[a]ny battering or beating inflicted on a person without his or her consent." It defines "assault and battery" as specifically including "the ejection or exclusion with force or violence, or attempt thereof, of any person from the premises by the insured and his/her/its employees or agents."
Superior court's order
The court granted insurer's motion for summary judgment as to Count I of Hanlon's and Karpew's complaints, concluding that the assault and battery exclusion effectively bars coverage "as to any cause of action arising from the actual personal injuries constituting the assault and battery inflicted upon Hanlon and Karpew."
The court also granted summary judgment to insurer as to coverage for intentional infliction of...
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