General American Life Insurance v. Barth

Carley, Judge.

Appellee-plaintiff was a part-time employee of the International House of Pancakes (IHOP). While taking stock inventory on the late shift, appellee was struck by a bullet and sustained injuries to his mouth, teeth and lips which required medical, surgical and dental treatment extending over a period of more than three years. The bullet had been fired by the owner of the IHOP restaurant, who, unbeknownst to appellee and his co-workers, was on the premises and whose reason for firing the shot has never *606been explained.

Appellee successfully sued his assailant in tort and recovered $25,000. He also filed for workers’ compensation benefits. Appellee entered into a stipulation of “no coverage” with IHOP’s workers’ compensation carrier but nevertheless received the sum of $10,000 from the carrier. Appellee also made a claim under his father’s group policy with appellant-defendant General American Life Insurance Company. Appellant refused to honor the claim, relying on the following exclusion in the policy: “Benefits shall not be payable... for or in connection with (4) sickness covered by Workmen’s Compensation law... or laws of a similar character; or injury arising out of or in the course of any occupation or employment for compensation, profit, or gain.” Through his father, appellee twice more made demand for payment upon appellant, but was refused on the same grounds.

Appellee then brought the instant action against appellant for unreimbursed medical expenses. The case was tried before a jury, and a verdict was returned awarding appellee benefits under the policy, bad faith penalties, and attorney fees. Appellant, having unsuccessfully moved for a directed verdict, moved for judgment n.o.v. This motion was likewise denied. Appellant appeals, enumerating as error the denial of its motions for directed verdict and judgment n.o.v.

Appellant asserts that the above quoted exclusion applies because appellee was injured while clearly “in the course of employment” as that term is defined in Georgia law.

In support of its contention, appellant cites a number of workers’ compensation cases that have held that a person fortuitously shot at his workplace, under circumstances as clearly unrelated to the victim’s actual duties as was the shooting of appellee in the instant case, was injured “in the course of’ his employment. See Gen. Fire & Cas. Co. v. Bellflower, 123 Ga. App. 864 (182 SE2d 678) (1971); Chadwick v. White Provision Co., 82 Ga. App. 249 (60 SE2d 551) (1950); Fidelity & Cas. Co. v. Barden, 79 Ga. App. 260 (54 SE2d 443) (1949). “The words ‘in the course of the employment’ relate to the time, place and circumstances under which the accident takes place...” New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682, 688-689 (118 SE 786) (1923).

Under the rationale of the cases cited above, appellee was clearly “in the course of’ his employment when he was injured. Appellee attempts to distinguish those cases by pointing out that they involved workers’ compensation. It is true that “these workers’ compensation cases are not directly applicable to the issues... presented in the case at bar. However, the reasoning employed therein in determining *607whether or not the particular injury in question occurred during the scope of the employee’s employment appears to be sound and logical and we see no reason why the same logic should not apply to the case at bar.” IBM v. Bozardt, 156 Ga. App. 794, 799 (275 SE2d 376) (1980) (cert. denied). Accordingly, we find that the injury which forms the basis of appellee’s claim arose “in the course of’ his employment and, therefore, there is no coverage.

United Benefit Life Ins. Co. v. Glisson, 105 Ga. App. 122 (123 SE2d 350) (1961) does not compel a different result. It is true that in Glisson, this court interpreted the particular language involved in that policy as not relieving the insurer of liability “as a result of accidental injuries to [the insured] simply because he sustained such injuries while performing duties in the course of his employment, unless he would have a cause of action for such expenses under the [Workers’] Compensation Act or similar legislation.” United Benefit Life Ins. Co. v. Glisson, supra at 124. There is, however, a fundamental difference between the ambiguous language in the policy under consideration in Glisson and the clear and unequivocal wording of the policy in the instant case. In Glisson, the policy provided that there would be no coverage for “accidental bodily injuries arising out of or in the course of the employment of the protected person or his dependents or sickness covered by a Workmen’s Compensation Act or similar legislation.” p. 124. The court in Glisson held that in order to be excludable under the policy, an accident must not only have arisen out of or in the course of employment, but it must also be covered by the Workers’ Compensation Act. Such a construction of the policy provisions in this case is not reasonable. As noted above, appellee’s policy excludes coverage for “sickness covered by Workmen’s Compensation law, occupational disease law, or laws of a similar character; or injury arising out of or in the course of any occupation or employment for compensation, profit or gain . . .” (Emphasis supplied.) Thus, in appellee’s policy, there is a semicolon separating the language concerning coverage under workers’ compensation laws and laws of a similar character from the language dealing with the exclusion for injury “arising out of or in the course of . . . employment.” It is therefore clear that the exclusion based upon coverage under workers’ compensation is separate from the exclusion relating solely to an injury arising out of or in the course of employment and that the latter non-coverage provision is disjunctive in nature. Thus, regardless of workers’ compensation coverage, it is clear that there is no coverage under the relevant exclusionary language of the instant policy if the injury arose either out of or in the course of employment. As noted above, the injury which forms the basis of appellee’s claim *608arose “in the course of’ his employment and, therefore, there is no coverage.

Decided July 15, 1983 Rehearing denied July 28, 1983 Theodore G. Frankel, for appellant. James M. Crawford, Stuart W. Snow, for appellees.

Moreover, we find that there is no coverage in this case for another reason. In Cantrell v. Home Security Life Ins. Co., 165 Ga. App. 670 (302 SE2d 415) (1983), the same type of “stipulation” regarding “no coverage” under the Workers’ Compensation Act was entered into as is involved in the instant case. Cantrell is applicable and controlling and, here as there, the relevant policy language “must be construed to exclude coverage when workers’ compensation benefits are actually paid, irrespective of whether or not there is an adjudication on the merits of compensability by the Board.” Cantrell v. Home Security Life Ins. Co., supra at 671.

For all of the above reasons, the trial court erred in failing to grant a directed verdict for appellant on the ground that the policy afforded no coverage for appellee. There being no coverage under the policy, appellee’s judgment for bad faith penalties and attorney fees was likewise unauthorized.

Judgment reversed.

Shulman, C. J., Banke, Birdsong, Sognier and Pope, JJ., concur. Deen, P. J., Quillian, P. J., and McMurray, P. J., dissent.