PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-9134
Non-Argument Calendar
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D.C. Docket No. 1:96-CV-1949-WBH
ATLANTIC MUTUAL INSURANCE COMPANY,
Plaintiff-Appellee,
versus
ATLANTA DATACOM, INC., d.b.a., Ad Com,,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 27, 1998)
Before BIRCH and MARCUS, Circuit Judges, and HENDERSON, Senior Circuit
Judge.
PER CURIAM:
Atlantic Mutual Insurance Company (“Atlantic”) filed this action in the
United States District Court for the Northern District of Georgia seeking a
declaratory judgment that it was not obligated to defend Atlanta Datacom, Inc.
d/b/a AdCom (“AdCom”) in a suit brought for “abusive litigation” pending in the
State Court of Fulton County, Georgia. The district court granted Atlantic’s
motion for summary judgment. AdCom filed this appeal from that final judgment.
For the reasons that follow, we affirm.
FACTS
This action arises out of litigation originally filed by AdCom in the Superior
Court of Gwinnett County, Georgia against several defendants based on the
formation of a new business by several former AdCom employees. AdCom
subsequently amended its lawsuit to add claims against Advanced
Telecommunications Corporation (“ATC”), which allegedly was an investor in, or
lender to, the new business. ATC served notice on AdCom that it intended to
pursue a cause of action for abusive litigation pursuant to O.C.G.A. § 51-7-81
unless AdCom voluntarily dismissed its claims against ATC. AdCom failed to
dismiss and the Superior Court eventually granted summary judgment in favor of
ATC on all the claims asserted against it and the Georgia Court of Appeals
affirmed that judgment.
ATC’s successor in interest, Worldcom, Inc., then filed a suit against
AdCom for abusive litigation in 1995. AdCom notified Atlantic of the pendency of
that suit in October 1995 and demanded that Atlantic defend and indemnify it.
Atlantic had issued two policies, one effective November 1, 1992 and the second
beginning November 1, 1993, providing commercial general liability and
commercial umbrella liability coverage for AdCom. Coverage A of the policies
dealt with insurance for “bodily injury” and “property damage” liability. Coverage
B insured AdCom against causes of action for “personal injury” and “advertising
injury.” The parties agree that Worldcom’s abusive litigation claim does not
qualify as a bodily injury, property damage or advertising injury. They disagree
on, and this case turns on, whether the claim constitutes a personal injury.
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The policies defined “personal injury” as an
injury, other than “bodily injury,” arising out of one or more of the
following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into or invasion of the right
of private occupancy of a room, dwelling or premises that a person
occupies by or on behalf of its owner, landlord or lessor;
d. Oral or written publication of material that slanders or libels a person
or disparages a person’s or organization’s goods, products, or
services; or
e. Oral or written publication of material that violates a person’s right of
privacy.
(Insurance Policies, Coverage B at Section V, § 10). AdCom maintained in the
district court that any recovery against it in the Worldcom litigation would
constitute a personal injury because it would arise out of a “malicious
prosecution.” Atlantic argued that the offenses of malicious prosecution and
abusive litigation are separate and distinct causes of action under Georgia law
and, as a result, Worldcom’s complaint against AdCom was not covered by the
policies. The district court concluded that the causes of action were distinct, that
Worldcom’s demand against AdCom was not covered by the policies and granted
Atlantic’s motion for summary judgment.
DISCUSSION
On appeal, AdCom urges that the tort of abusive litigation should be
considered a personal injury embraced by the Atlantic policies. It notes that the
term “malicious prosecution” is not defined in the policies and has differing
meanings. In its view, the policy language should be construed against Atlantic
because the insurer drafted this “ambiguous” language and because exclusions
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from coverage should be strictly interpreted. It also argues that it had a
reasonable expectation that the tort of abusive litigation would be included in the
policies. Atlantic contends that there is no ambiguity in the meanings as stated in
the policies and that the district court correctly adhered to the clear distinction
under Georgia law between causes of action for malicious prosecution and
abusive litigation.
The policies in issue extend coverage for personal injuries which fall within
one of five specifically designated categories, one of which is malicious
prosecution. In Georgia, that term has been codified at least since 1863. As
presently defined, malicious prosecution is “[a] criminal prosecution which is
carried on maliciously and without any probable cause and which causes damage
to the person prosecuted ....” O.C.G.A. § 51-7-40. While the tort of abusive
litigation applicable to civil proceedings was not codified until 1989, see O.C.G.A.
§ 51-7-80, the distinction between the two torts has long been recognized by the
Georgia courts. Thus, in 1903, the Supreme Court of Georgia observed that “the
term ‘malicious prosecution’ is applicable only to the carrying on of a criminal
case. ... When damages are sought for the malicious carrying on of a civil suit,
the cause of action is not for malicious prosecution, but for the malicious use of
process.” Woodley v. Coker, 46 S.E. 89, 89 (Ga. 1903).
AdCom contends that the term “malicious prosecution” may apply to the
improper commencement of a civil as well as a criminal action. As support for
this proposition, it cites a provision from Appelman’s treatise on insurance law
that includes, as one of the elements of a cause of action for malicious
prosecution, the commencement of a civil or criminal action. See Appelman,
Insurance Law and Practice, Vol. 16A, § 8896.35. As Atlantic points out,
however, this section of the treatise concerns the liability of an insurer or its
agents for a claim of malicious prosecution; it is not a discussion of how coverage
for the tort of malicious prosecution has been characterized otherwise. AdCom
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also argues that other states include civil litigation within the scope of “malicious
prosecution” for insurance purposes. This action involves allegedly abusive
litigation filed by AdCom in a Georgia state court and the construction of an
insurance policy issued to it in Georgia. We must look to Georgia law in
determining the scope of the term “malicious prosecution.” It is clear that the
term “malicious prosecution” is confined to the pursuit of a criminal action and not
one for the recovery of damages arising out of a civil tort. The judgment of the
district court is AFFIRMED.
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