Georgia Farm Bureau Mutual Insurance v. Hurley ( 1989 )

Deen, Presiding Judge,

concurring specially.

Although I concur fully with the majority opinion, the following thoughts should also be set forth.

In Pennsylvania Millers Mut. Ins. Co. v. Crews, 184 Ga. App. 492 (361 SE2d 657) (1987) (a 5-4 decision), in which a school principal and the county Board of Education had been sued by the father of a student allegedly injured when the principal spanked him, this court affirmed the trial court’s award of summary judgment to the defendants in an action for declaratory judgment filed by their insurer, and held that the policy exclusion (closely similar to that in the instant case) did not apply. The court noted the existence of a statute specifically authorizing corporal punishment. In Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368 (373 SE2d 23) (1988), the trial court held, and this court affirmed, that a similar policy exclusion did apply to the actions of the insured, a confessed child molester.

On its facts, the instant case falls somewhere between Roe and Crews, supra, but is closer to Crews than to Roe, inasmuch as appellee Hurley was not engaged in a course of conduct inherently illegal or immoral. While not necessarily dissenting from the judgment in Roe, supra, I would concur with the position taken in Judge Beasley’s concurring opinion regarding the construction of provisions of an insurance policy: “Insurance policy exclusions are to be strictly construed, ‘against the insurer and in favor of providing the indemnity sought.’ [Cit.]”