Landmark American Insurance Co. v. Khan
307 Ga. App. 609
| Ga. Ct. App. | 2011Background
- Khan sued Landmark for breach of its duty to defend Flashers in a prior premises liability action.
- Policy excludes bodily injury arising from assault/battery unless committed by Flashers’ employee to protect persons/property, with an endorsement allowing coverage in limited protecting scenarios.
- Landmark refused to defend Flashers, asserting no coverage under Flashers’ policy for Khan’s claims.
- A default judgment was entered against Flashers; Khan obtained assignment of Flashers’ claims against Landmark arising from the incident.
- The trial court found Landmark breached the duty to defend and denied Landmark’s dismissal motion; the court granted Khan partial summary judgment on the duty-to-defend claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a duty to defend based on the underlying pleadings? | Khan: pleadings arguably fall within policy coverage for assault/battery by Flashers’ employee protecting persons/property. | Landmark: policy exclusion for assault/battery defeats coverage regardless of actor; claims not covered. | Yes; insurer had a duty to defend. |
| Was the dismissal denial proper given the policy exclusion? | Khan: allegations are ambiguous/incomplete but within coverage, requiring defense. | Landmark: allegations unambiguously exclude coverage; no duty to defend. | Yes; denial of dismissal proper. |
| Did Khan's breach-of-contract claim survive summary judgment? | Khan: insurer breached by failing to defend; entitles judgment on liability. | Landmark: factual disputes and scope left for jury; no automatic breach. | Partially; trial on breach of contract to determine damages remains. |
| Did Khan prevail on the duty-to-defend claim for bad-faith purposes? | Khan: bad-faith conduct is tied to breach of duty to defend. | Landmark: if no duty to defend, bad-faith claim cannot succeed. | Bad-faith claim remains for jury resolution post-determination of defense duty. |
Key Cases Cited
- ALEA London Ltd. v. Woodcock, 286 Ga.App. 572 (Ga. Ct. App. 2007) (ambiguity in policy construed in insured’s favor when determining duty to defend)
- Pilz v. Monticello Ins. Co., 267 Ga.App. 370 (Ga. Ct. App. 2004) (duty to defend determined by comparing allegations with policy; ambiguities favor insured)
- Dudley v. Wachovia Bank, 290 Ga.App. 220 (Ga. Ct. App. 2008) (pleadings liberally construed to do substantial justice)
- Penn-America Ins. Co. v. Disabled American Veterans, 268 Ga. 564 (Ga. 1997) (insurer must defend where allegations are ambiguous or incomplete regarding coverage)
- Driskell v. Empire Fire, etc. Ins. Co., 249 Ga.App. 56 (Ga. Ct. App. 2001) (insurer defends any claim asserting liability under policy; look to allegations even if groundless)
- White v. Ga. Power Co., 265 Ga.App. 664 (Ga. Ct. App. 2004) (summary judgment standard: no genuine issue of material fact; view evidence in movant’s favor)