Thrift-Mart, Inc. v. Commercial Union Assurance Companies

268 S.E.2d 397, 154 Ga. App. 344, 1980 Ga. App. LEXIS 2158
CourtCourt of Appeals of Georgia
DecidedApril 15, 1980
Docket59080
StatusPublished
Cited by19 cases

This text of 268 S.E.2d 397 (Thrift-Mart, Inc. v. Commercial Union Assurance Companies) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thrift-Mart, Inc. v. Commercial Union Assurance Companies, 268 S.E.2d 397, 154 Ga. App. 344, 1980 Ga. App. LEXIS 2158 (Ga. Ct. App. 1980).

Opinion

Sognier, Judge.

Appellants, the operator of a grocery store business and the owner of the building in which the business is conducted, filed individual suits against Wayne Allan Moore and the administrator of the estate of Dennis C. Williams seeking damages for destruction of their property by fire. Appellee, Commercial Union Assurance Companies, then brought a declaratory judgment action to determine whether coverage of Wayne Allan Moore was afforded under a homeowners insurance policy issued to his father, denying liability because of an exclusion in the policy providing that "This policy does not apply ... to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.” [345]*345The jury rendered a verdict in favor of the insurer and judgment was entered accordingly. The appellants’ motions for judgment notwithstanding the verdict and for new trial were denied and this appeal ensued. We affirm.

1. Appellants’ contention that the evidence was insufficient as a matter of law to support a verdict in favor of the insurer is not supported by the transcript of testimony at the trial and other statements of Wayne Allan Moore introduced therein. Moore testified that on Saturday, January 11, 1976 he and a friend and schoolmate, Dennis Williams, had been drinking vodka all day. Moore was fourteen. Late that night he and Williams went to a youth recreation center to get some Coca-Colas but were asked to leave because they had been drinking. Both left and Williams went to a nearby grocery store, operated by the appellant Thrift-Mart. Moore followed and saw Williams stealing Cokes from the soft drink machine. Williams broke into the store and Moore followed him in by entering through a broken window, climbing over a cabinet and going through two or three doors to get into the store area. Moore knew he was not authorized to enter the building but wanted to get Williams out before they were caught. While in the store he knocked a jar of mayonnaise off a shelf breaking the jar. When he cut his bare foot on the glass he threw a bottle of catsup in anger. He took some money Williams gave him out of the store and then returned to get Williams out. It "seemed like” there were articles knocked off the shelves and stacked up. He saw smoke and "took off,” thinking Williams was behind him. However, Williams was trapped inside the store by the rapidly combusting fire and perished from injuries received when the store was destroyed by flames.

Moore also made statements prior to trial to the insurance claim adjuster, a fire marshall and the sheriff, which differed in some respects from his trial testimony and which were introduced for purposes of impeachment. Moore told appellee’s adjuster that he broke down the door to the store to enter it; Moore told the sheriff that Williams told him (Moore) to run down the first aisle and wreck it and that he ran down the aisle knocking off merchandise. He told the fire inspector that Williams was spraying an aerosol can of Right Guard over a butane cigarette lighter flame as a blow torch, although at trial Moore denied seeing such an occurrence. When questioned about discrepancies between prior statements and his trial testimony, Moore swore that he had lied during previous statements to protect himself because he was facing criminal charges, but he was telling the truth at trial. In addition to the money which Moore admitted taking from the store, investigators [346]*346also found other articles including a bracelet, cigarettes and butane cigarette lighters outside the burned store. After being qualified as an expert, the investigator from the State Fire Marshall’s Office testified that based upon his examination of the scene of the fire, his consultation with witnesses and his expertise, it was his opinion that the fire was intentionally set because of the relation of "hot spots” and the rapid movement of the fire.

The jury was entitled to believe all, part or none of Moore’s testimony, and the evidence as a whole amply supported a finding that Moore intended or expected damage to occur to the items he swept off the shelf. Even if Moore did not intend or expect to burn the property, the policy exclusion does not restrict the injury or damage to fire so as to preclude the verdict as a matter of law. " 'Accident’ and 'intention’ are converse terms. An accident refers to an unexpected happening rather than one occurring through intention or design.” (Emphasis supplied.) Travelers Indemnity Co. v. Hood, 110 Ga. App. 855, 857 (1) (140 SE2d 68) (1964) (20 ALR3d 314 (1968)). Thus, Moore’s acts could not be unexpected unless they were accidental, and there was no evidence that such was the case. Hence, if the jury found that Moore intended to cause harm to the property of another, the resulting damage was both intentional and expected, as contemplated by the exclusion of coverage. Accord, State Farm Fire & Cas. Co. v. Muth, 207 NW2d 364 (Neb. 1973) with identical policy provision. See generally Annot., 2 ALR3d 1238, 1243, § 4 (1965).

2. Nor do we agree that the policy exclusion referred only to the named insured, Robert H. Moore, the father of Wayne Allan Moore, and to no other insured under the policy. "Insured” is defined in the policy as "residents of the Named Insured’s household, his spouse, the relatives of either, and other person under the age of twenty-one in the case of any Insured ...” [T-210] "The language ' an insured’ makes the company liable for property damage caused by any person included in the omnibus clause, while the language 'the insured,’ referring to settlement of claims, is ambiguous, since it may mean either the named insured or the insured actually causing the damage.” Assurance Co. of America v. Bell, 108 Ga. App. 766, 770 (2) (134 SE2d 540) (1963). Appellants argue that "the insured,” as it appears on the first page of the policy where the agreement to insure is set forth, includes Wayne Allan Moore as a resident of the household of the named insured under the age of twenty-one, but the same language, when used in the exclusion from coverage, applies only to the named insured, his father. This construction "is worthy of mention solely on account of its novelty. As a legal argument, it is wholly without merit.” [347]*347Hughes v. Powell, 152 Ga. App. 851 (264 SE2d 303) (1980). It follows that the court was correct in refusing to charge that "the Insured” in the exclusion clause referred only to the named insured.

3. There was likewise no error in failing to grant appellants’ motions for directed verdict, j.n.o.v. or new trial on the ground that due to his intoxication Moore was incapable of the requisite intent or expectation so as to exclude a harm resulting from his acts from insurance coverage. This issue was submitted to the jury and decided adversely to the appellant. The evidence was sufficient to authorize the jury’s conclusion.

4. The trial court’s charge to the jury concerning conspiracy, which is enumerated as error, was almost a verbatim quote from Hill v. Reynolds, 19 Ga. App. 334 (1) (91 SE 434) (1916), where it was stated: "Where a conspiracy is shown, the act of one becomes the act of all, in so far as the furtherance of the conspiracy is concerned; and each is as fully responsible for the acts of the others in carrying out the common purpose as if he himself had committed the acts. [Cits.]” The Hill

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mary Sheffield v. Conair Corporation
821 S.E.2d 93 (Court of Appeals of Georgia, 2018)
Owners Insurance v. James
295 F. Supp. 2d 1354 (N.D. Georgia, 2003)
Nationwide Mutual Insurance v. Flagg
789 A.2d 586 (Superior Court of Delaware, 2001)
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. Purvis
444 S.E.2d 109 (Court of Appeals of Georgia, 1994)
Owens-Illinois, Inc. v. United Ins. Co.
625 A.2d 1 (New Jersey Superior Court App Division, 1993)
Southern Guaranty Insurance v. Saxon
379 S.E.2d 577 (Court of Appeals of Georgia, 1989)
State Farm Fire & Casualty Company v. Morgan
368 S.E.2d 509 (Supreme Court of Georgia, 1988)
State Farm Fire & Casualty Co. v. Morgan
364 S.E.2d 62 (Court of Appeals of Georgia, 1987)
Gary L. Shaw Builders, Inc. v. State Automobile Mutual Insurance
355 S.E.2d 130 (Court of Appeals of Georgia, 1987)
State Automobile Mutual Insurance v. Thomson
348 S.E.2d 507 (Court of Appeals of Georgia, 1986)
Haldi v. Foundation Life Insurance
324 S.E.2d 189 (Supreme Court of Georgia, 1985)
Stein v. Massachusetts Bay Insurance
324 S.E.2d 510 (Court of Appeals of Georgia, 1984)
United States Fidelity & Guaranty Co. v. American Employer's Insurance
159 Cal. App. 3d 277 (California Court of Appeal, 1984)
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. Meriwether
312 S.E.2d 823 (Court of Appeals of Georgia, 1983)
Continental Casualty Co. v. Parker
288 S.E.2d 776 (Court of Appeals of Georgia, 1982)
Transamerica Insurance v. Thrift-Mart, Inc.
285 S.E.2d 566 (Court of Appeals of Georgia, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
268 S.E.2d 397, 154 Ga. App. 344, 1980 Ga. App. LEXIS 2158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thrift-mart-inc-v-commercial-union-assurance-companies-gactapp-1980.