dissenting.
Contrary to the majority’s conclusion, I believe that this case is controlled by the rationale of Antill v. State Farm Fire & Cas. Co., 178 Ga. App. 659 (344 SE2d 480) (1986). Based upon the record in this case, Hurley “either committed an intentional tort or [he] did not, and in either case [appellant] would not be liable under the policy.” Antill v. State Farm Fire & Cas. Co., supra. The only possible distinction in this case would be that the complaint contained vague allegations of negligence as well as averments as to an intentional tort. However, in Pennsylvania Millers Mut. Ins. Co. v. Crews, 184 Ga. App. 492 (361 SE2d 657) (1987), a plurality of this Court based its determination as to the non-applicability of the policy exclusion upon the underlying evidence in the case, and not just the allegations of the complaint. A majority of the judges concurred in the result of the case wbich could have been reached only on the basis of this reasoning. It is true that in Crews, the majority found the policy exclusion to be inapplicable because the evidence would “warrant the conclusion that the injury was an unintended consequence of the spanking.” Pennsylvania Millers Mut. Ins. Co. v. Crews, supra, 493. However, the distinction between Crews and this case is that in Crews, the court relied upon a statute specifically authorizing corporal punishment in Georgia schools. Thus, while the act of “spanking” in Crews was statutorily sanctioned, there is no statute which would authorize Hurley’s act of “kicking” in this case.
Although Hurley contends that his intentional act of kicking Lassiter was not intended to result in the injury to Lassiter’s groin, the policy exclusion “is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected.” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (291 SE2d 410) (1982). See also Stein v. Mass. Bay Ins. Co., 172 Ga. App. *550811 (324 SE2d 510) (1984); Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368 (373 SE2d 23) (1988). Because I believe that the trial court erred in failing to grant summary judgment in favor of the insurer based upon the policy exclusion, I respectfully dissent.
Decided February 15, 1989 Rehearing denied March 2, 1989 Dillard & Landers, Bryant H. Bower, Jr., Terry A. Dillard, for appellant. William E. Moore, Jr., John W. Case, for appellees.I am authorized to state that Judge Birdsong, Judge Sognier and Judge Pope join in this dissent.