469_C322
WAS
SCOOP INCIDENT AN ACCIDENT?
|
Homeowners |
Intentional Act |
|
Duty To Defend |
Punitive Damages |
On or about October 5,
2005, Yong Kim and Chong Yang were in a karaoke bar
in
On July 31, 2006, Yang
filed a lawsuit against Kim, seeking both compensatory and punitive damages,
alleging that Kim had "unlawfully, intentionally, and without provocation
or justification committed an assault and battery upon [her] by throwing a
metal ice scooper and striking [her] in the
face." In November 2006, Yang amended the complaint to include allegations
that Kim "was negligent in her actions resulting in the alleged injuries
to plaintiff."
The following July she
amended her complaint again, effectively changing it from a complaint alleging
intentional conduct to a complaint alleging negligent conduct. The language of
the new complaint stated that Kim "negligently threw and without
reasonable care threw a metal ice scooper in [Yang's]
direction...striking [her] in the face" and that Kim "recklessly and
with willful disregard for [Yang's] safety, threw a metal ice scooper in [Yang's] direction...striking her in the face.
[Kim's] reckless disregard for [Yang's] safety...constituted gross
negligence."
Kim had a homeowners policy issued by Nationwide Mutual Fire Insurance
Company. The policy provided coverage for "damages an insured is legally
obligated to pay due to an occurrence resulting from negligent personal acts or
negligence arising out of the ownership, maintenance or use of real or personal
property." The policy defined "occurrence" as "bodily
injury or property damage resulting from an accident, including continuous or
repeated exposure to the same general condition." The policy contained an
intentional acts exclusion that excluded coverage for bodily injury "(a)
caused intentionally by or at the direction of an insured, including willful
acts the result of which the insured knows or ought to know will follow, from
the insured's conduct...[or] (b) caused by or
resulting from an act or omission of any insured which are crimes pursuant to
the Georgia Criminal Code." The exclusion applied even if "the bodily
injury or property damage is of a different kind or degree than the insured
knows or ought to know will follow from the insured's conduct." Further,
the exclusion applied regardless of whether or not the insured is actually
charged with, or convicted of, a crime.
When Kim sought coverage
under the policy, Nationwide filed a declaratory judgment action asking the
court to determine if it had a duty to defend and indemnify her. The lower
court found that Yang's claims for negligence and gross negligence were
covered, but that the punitive damages were not covered. Nationwide, Kim and
Yang all appealed.
On appeal, Nationwide
argued that the policy's criminal acts exclusion applied despite the fact that
Yang had amended her complaint. According to Nationwide, Yang and Kim had both
admitted that Kim was charged with crimes under
The Court of Appeals also
found that the lower court erred when it found that punitive damages were not
covered by the policy. According to the court, under
The lower court's decision
in favor of coverage for the insured was affirmed. The lower court's decision
finding that there was no coverage for punitive damages was reversed.
Nationwide Mutual Fire
Insurance Company vs. Kim-Nos.
A08A1063-A08A1065-Court of Appeals of Georgia-November 14, 2008-669 South
Eastern Reporter 2d 517