Companion Property Ins. v. Airborne Exp.

631 S.E.2d 915, 631 S.E.2d 913, 369 S.C. 388, 2006 S.C. App. LEXIS 126
CourtCourt of Appeals of South Carolina
DecidedJune 19, 2006
DocketNo. 4124.
StatusPublished
Cited by13 cases

This text of 631 S.E.2d 915 (Companion Property Ins. v. Airborne Exp.) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Companion Property Ins. v. Airborne Exp., 631 S.E.2d 915, 631 S.E.2d 913, 369 S.C. 388, 2006 S.C. App. LEXIS 126 (S.C. Ct. App. 2006).

Opinion

STILWELL, J.:

Airborne Express, Inc. and Charles Carpenter appeal the trial court's grant of summary judgment in favor of Companion Property and Casualty Insurance Company in this declaratory judgment action. We affirm.

This case arises from the tragic sexual assault and murder of Carpenter's daughter, seventeen-year-old Jessica Carpenter. Robert Franklin Atkins was employed by Moore Express, Inc., a package delivery sub-contractor for Airborne. In late July of 2000, Atkins, a convicted felon, delivered a package to the Carpenter home. He returned to the home on August 4th dressed in his Airborne uniform and driving an Airborne delivery *916vehicle, gained entry to the premises, and attacked Jessica.

Carpenter, in his capacity as Jessica's personal representative, filed a wrongful death and survival action against Airborne, Moore, and Atkins. Moore was insured by Companion under a commercial general liability policy.1 Airborne was named as an additional insured. Companion filed a declaratory judgment action contending that under the terms of the policy it was not required to defend Airborne or Moore because Jessica's murder was not an "occurrence" as contemplated by the terms of the policy, and, further, fell within the intentional acts exclusion of the policy. The trial court agreed and granted summary judgment in Companion's favor. Airborne and Carpenter appeal.

STANDARD OF REVIEW

In reviewing a motion for summary judgment, the appellate court applies the same standard of review as the trial court under Rule 56(c), SCRCP. Cowburn v. Leventis, 366 S.C. 20, 30, 619 S.E.2d 437, 443 (Ct.App.2005) (citing Trousdell v. Cannon, 351 S.C. 636, 639, 572 S.E.2d 264, 265 (2002)). Summary judgment should be affirmed if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. "Our standard of review in evaluating a motion for summary judgment is to liberally construe the record in favor of the nonmoving party and give the nonmoving party the benefit of all favorable inferences that might reasonably be drawn therefrom." Estes v. Roper Temp. Servs., Inc., 304 S.C. 120, 121, 403 S.E.2d 157, 158 (Ct.App.1991).

LAW/ANALYSIS

Airborne appeals the trial court's determination that Carpenter's complaint failed to allege an "occurrence" within the contemplation of the terms of the policy and that the intentional acts exclusion of the policy precludes coverage.2 Carpenter contends the court improperly applied the summary judgment standard by finding inferences in favor of the moving party, Companion.

As a preliminary matter, we must determine which state's law applies. In construing insurance policies, South Carolina courts apply the law of the state where the policy was issued. Gordon v. Colonial Ins. Co. of California, 342 S.C. 152, 155-56, 536 S.E.2d 376, 378 (2000). Moore is a Georgia corporation, and the policy was issued and delivered to Moore in Georgia. Consequently, Georgia law governs our application and interpretation of the policy. All parties agree the application of Georgia law is appropriate.

An insurer's duty to defend is determined by examining the allegations contained in the complaint and comparing them to the coverage provided by the policy. Batson-Cook Co. v. Aetna Ins. Co., 200 Ga.App. 571, 409 S.E.2d 41, 42-43 (1991). In the instant case, the underlying complaint states claims for wrongful death and survival. In stating his claims, Carpenter alleges that Airborne and Moore were negligent in failing to conduct a background investigation of Atkins prior to hiring him, in failing to warn customers that delivery persons had not been subject to background checks, in failing to conduct periodic background checks once employees were hired, and in inducing customers to believe that delivery persons are agents and representatives of Airborne, all resulting in Atkins' assault of Jessica.

The initial allegation, that Airborne and Moore were negligent in Atkins' assault of Jessica, appears to rest solely on the theory of vicarious liability; i.e., the employee's conduct is imputed to his employer. The remaining allegations, however, seem to assert separate negligent acts or omissions on the part of Airborne and Moore that contributed to Jessica's assault and death. Having preliminarily examined the allegations in the *917complaint, we must now compare those allegations with the coverage provided by the relevant provisions in the policy.

Moore's CGL policy provides the following:

This insurance applies to "bodily injury" or "property damage" only if:

(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory[.]"

Occurrence is defined in the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Airborne argues that whether Jessica's murder was an "accident" must be viewed not from Atkins' standpoint, but from the standpoint of Airborne and Moore under the Georgia case of Crook v. Georgia Farm Bureau Mut. Ins. Co., 207 Ga.App. 614, 428 S.E.2d 802 (1993). In Crook, the son of the plaintiffs in the underlying suit committed an intentional act that resulted in his death. Id. at 802-03.

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Bluebook (online)
631 S.E.2d 915, 631 S.E.2d 913, 369 S.C. 388, 2006 S.C. App. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/companion-property-ins-v-airborne-exp-scctapp-2006.