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Dynamic Cleaning v. First Financial

Court of Appeals of Georgia
Feb 25, 1993
208 Ga. App. 37 (Ga. Ct. App. 1993)

Summary

holding that exclusion unambiguously barred any "claim based on assault and battery," when exclusion stated that it applied to an assault and battery " whether or not committed by or at the direction of the insured"

Summary of this case from First Specialty Ins. v. Flowers

Opinion

A92A1989, A92A1990.

DECIDED FEBRUARY 25, 1993. RECONSIDERATION DENIED MARCH 19, 1993.

Action on policy. DeKalb Superior Court. Before Judge Fuller.

Bentley, Karesh Seacrest, Gary L. Seacrest, Richard B. Crohan, for appellants (case no. A92A1989).

Eric C. Silver, for appellants (case no. A92A1990).

Swift, Currie, McGhee Hiers, Lynn M. Roberson, for appellee.


These two appeals arise out of a declaratory judgment action brought by appellee to determine its duty to defend its insured under a policy of general liability insurance. The trial court concluded that appellee had no duty to defend its insured and entered judgment in favor of appellee.

The relevant facts are that appellee issued a policy of insurance to Robert Kesler d/b/a Dynamic Cleaning Service, Inc. ("Dynamic"). Dynamic had a contract to provide after hours cleaning services to a Dairy Queen restaurant where Mr. Geoffrey Brosy was employed as the manager. Lloyd Kemp, an employee of Dynamic assigned to actually clean the restaurant, was in the process of cleaning the Dairy Queen when he allowed a former employee of the Dairy Queen to enter the restaurant. The former employee attacked Mr. Brosy by stabbing him repeatedly. The Brosys sued Kesler, Dynamic and Kemp, alleging that Kemp was negligent in allowing an unauthorized person to enter the restaurant after the close of business and that Kesler and Dynamic were liable under a theory of respondent superior. At the time of the incident, Dynamic was insured under a policy of general liability insurance issued by appellee which contained the following assault and battery exclusion: "[N]o coverage shall apply under this policy for any claim, demand or suit based on assault and battery, and assault and battery shall not be deemed an accident, whether or not committed by or at the direction of the insured." Appellee provided a defense to the defendants pursuant to a reservation of rights letter but subsequently filed a declaratory action to determine its duty to defend the defendants. Appellee moved for summary judgment on the grounds that the Brosys' claims were based on the assault and battery and thus were excluded under the terms of the policy. Kesler, Dynamic and Kemp also moved for summary judgment, contending that the exclusion did not apply because the complaint alleged a cause of action for negligence in allowing an unauthorized person to enter the restaurant after business hours. The trial court granted summary judgment to appellee and denied summary judgment to Kesler, Dynamic and Kemp. In Case No. A92A1989, Kesler, Dynamic and Kemp appeal the trial court's order, and in Case No. A92A1990, the Brosys appeal the same order.

"`An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.' ... [Cit.]" Lofton v. State Farm c. Ins. Co., 192 Ga. App. 154 ( 384 S.E.2d 245) (1989). Furthermore, "[a]n insurer's duty to defend is determined by comparing the allegations of the complaint with the provisions of the policy. [Cits.]" Batson-Cook Co. v. Aetna Ins. Co., 200 Ga. App. 571, 572 ( 409 S.E.2d 41) (1991). Appellants' argument that the exclusion does not apply because the complaint alleges negligence and not assault and battery is unpersuasive. Although the complaint alleges that Kemp was negligent in creating the circumstances which allowed the assault to occur, the injuries which gave rise to the cause of action arose out of and were clearly based on the assault and battery. Consequently, the fact that Kemp may have negligently allowed the assault to occur does not negate the effect of the exclusion.

Appellants also argue that the exclusion should be construed such that it applies only to an assault and battery committed by an employee of the insured. "`(A)n unambiguous policy requires no construction, and its plain terms must be given full effect even though they are beneficial to the insurer and detrimental to the insured. (Cits.)' [Cit.]" Liberty Nat. Ins. Co. v. Davis, 198 Ga. App. 343, 344 ( 401 S.E.2d 555) (1991). The language of the exclusion unambiguously provides that a claim based on assault and battery is not covered by the policy. The second part of the sentence is also clear that an assault and battery is not an "accident," which is covered by the policy, regardless of whether the assault and battery was committed by the insured, one of the insured's employees or some unknown third party.

Although we have found no Georgia cases which interpret the assault and battery exclusion, numerous courts from other jurisdictions have uniformly rejected the arguments advanced by appellants. See, e.g., United Nat. Ins. Co. v. Entertainment Group, 945 F.2d 210, 213-214 (7th Cir. 1991); Essex Ins. Co. v. Yi, 795 F. Supp. 319 (N.D. Cal. 1992); Terra Nova Ins. Co., Ltd. v. Nanticoke Pines, Ltd., 743 F. Supp. 293, 297-298 (Del. 1990); Terra Nova Ins. Co., Ltd. v. North Carolina Ted, 715 F. Supp. 688, 690 (E.D.Pa. 1989); Wallace v. Huber, 597 So.2d 1247 (La.App. 3rd Cir. 1992); Roloff v. Taste of Minnesota, 488 N.W.2d 325 (Minn.App. 1992); Britamco Underwriters v. Zuma Corp., 576 So.2d 965 (Fla.App. 5th Dist. 1991). Appellants attempt to distinguish some or all of the cases from foreign jurisdictions, but we find no material distinctions in either the facts of the cases or the exclusions contained in the policies. The issue before us is not whether Dynamic should be liable for the negligence of Kemp but whether the policy which it purchased protects it against the type of harm which occurred. Appellants have cited no authority in support of their argument that the Brosys' claims are within the scope of the coverage provided in the policy, and the overwhelming weight of authority from other jurisdictions is contrary to the arguments advanced by appellants. Accordingly, we conclude that summary judgment was appropriately entered in favor of appellee.

Judgments affirmed. McMurray, P. J., concurs. Blackburn, J., concurs in judgment only.

DECIDED FEBRUARY 25, 1993 — RECONSIDERATION DENIED MARCH 19, 1993 — CERT. APPLIED FOR.


Summaries of

Dynamic Cleaning v. First Financial

Court of Appeals of Georgia
Feb 25, 1993
208 Ga. App. 37 (Ga. Ct. App. 1993)

holding that exclusion unambiguously barred any "claim based on assault and battery," when exclusion stated that it applied to an assault and battery " whether or not committed by or at the direction of the insured"

Summary of this case from First Specialty Ins. v. Flowers

ruling that coverage need not be provided even though negligence was asserted as a concurrent cause of the harm suffered by an insured, because that harm arose out of conduct that was within the scope of an insurance policy exclusionary clause

Summary of this case from City of Coll. Park v. Georgia Interlocal Risk Mgmt. Agency

In Dynamic Cleaning Service, Inc. v. First Financial Insurance Company, 430 S.E.2d 33 (Ga.Ct.App. 1993), the Georgia Court of Appeals considered a similar argument — that a mixture of intentional and unintentional conduct requires an insurance company to provide coverage.

Summary of this case from Allstate Indemnity Company v. Bates

In Dynamic Cleaning Service, the underlying complaint alleged negligence in creating the circumstances that allowed the assault and battery to occur.

Summary of this case from Allstate Indemnity Company v. Bates

In Dynamic Cleaning Service, Inc. v. First Financial Ins. Co., 208 Ga. App. 37, 38 (430 S.E.2d 33) (1993) (physical precedent only), this court interpreted the identical exclusionary language to bar coverage in a premises liability case arising from an assault and battery.

Summary of this case from Boomer's, Inc. v. Whitney
Case details for

Dynamic Cleaning v. First Financial

Case Details

Full title:DYNAMIC CLEANING SERVICE, INC. et al. v. FIRST FINANCIAL INSURANCE…

Court:Court of Appeals of Georgia

Date published: Feb 25, 1993

Citations

208 Ga. App. 37 (Ga. Ct. App. 1993)
430 S.E.2d 33

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