State Automobile Mutual Insurance v. Thomson ( 1986 )

McMurray, Presiding Judge,

dissenting.

“In Ga. Farm Bureau Mut. Ins. Co. v. Ray, 148 Ga. App. 85 (251 SE2d 34) (1978), and Continental Cas. Co. v. Parker, 161 Ga. App. 614, 616 (288 SE2d 776) (1982), it was held that the ‘expected or intended’ exclusionary language is plain, unambiguous, and capable of only one reasonable interpretation. ‘ “Accident” and “intention” are converse terms. An accident refers to an unexpected happening rather than one occurring through intention or design.’ Travelers Indem. Co. v. Hood, 110 Ga. App. 855, 857 (140 SE2d 68) (1964). ‘(A)cts could not be unexpected unless they were accidental . . .’ Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 154 Ga. App. 344, 346 (268 SE2d 397) (1980). See also Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (291 SE2d 410) (1982).” Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811, 812 (324 SE2d 510).

In the case sub judice, the eviction of tenant Anderson by insured landlord Thomson was clearly intentional. It follows that, in view of evidence that Anderson’s equipment was improperly removed so as to cause damage thereto and then placed out in the rain that Thomson, the insured, intended or expected physical injury to Anderson’s property. The property damage being intended or expected on the part of the insured, any liability resulting therefrom is excluded from the coverage provided by the insurance policy issued to Thomson. Whatever effect the misfiling of Anderson’s answer may have upon the question of whether Thomson has a defense or legal excuse for his action in evicting Anderson, “it does not vitiate the actual intent to cause the injury.” Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811, 813, supra. The insurance policy issued by plaintiff provides no coverage applicable to the claim at issue. I would hold that the trial court erred in denying plaintiff’s motion for summary judgment.

I am authorized to state that Presiding Judge Deen and Presiding Judge Birdsong join in this dissent.

Decided July 16, 1986 Rehearing denied July 31, 1986 Don Smart, for appellant. John Booth, John M. Ranitz, for appellees.