Capitol Indemnity, Inc. v. Brown

*868BARNES, Judge,

concurring in part and dissenting in part.

Because I cannot agree that the Assault and Battery and Punitive Damage Exclusions upon which Capitol relies apply to the Errors and Omissions/Professional Liability Coverage Endorsement (“E & O Coverage”), I must respectfully dissent. Although I concur in the majority’s holding that the Assault and Battery Exclusion is sufficient to exclude coverage for Brown’s damages under the Commercial General Liability Coverage Part and that the exclusion extends to assaults by individuals other than West Atlanta employees, extending the Assault and Battery Exclusion and the Punitive Damages Exclusion to the E & O Coverage is not consistent with the policy or with our law.

I acknowledge that the Commercial General Liability Coverage Part Form Schedule says: “Forms and Endorsements applying to this Coverage Part and made a part of this policy at time of issue: FORMS APPLICABLE TO ALL PREMISES AND COVERAGES,” but this general provision conflicts with the terms of specific provisions of the Assault and Battery Exclusion, the Punitive Damages Exclusion, and the E & O Coverage endorsement. The Assault and Battery Exclusion and the Punitive Damages Exclusion both specifically provide that:

This form changes the policy terms as follows:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.18

Thus by their terms, these exclusions do not apply to the E & O Coverage. Further, the E & O Coverage endorsement by its specific terms states that it modifies insurance provided under the Commercial General Liability Coverage Part.19 As under our general rules of contract construction, limited or specific provisions of a contract prevail over a more broadly inclusive provision, Swisshelm v. Dept. of Human Resources, 253 Ga. App. 816, 817 (560 SE2d 722) (2002); Holtzclaw v. City of Dalton, 189 Ga. App. 650, 652 (377 SE2d 196) (1988), the general provision on the form schedule is not sufficient to include these endorsements.

Thus, while I agree with the majority that the E & O Coverage endorsement modifies the Commercial General Liability Coverage Part, I cannot agree that the Assault and Battery and Punitive Damages Exclusions apply to the E & O Coverage endorsement. If Capitol wanted the Assault and Battery and Punitive Damages Exclusions to *869apply to the E & O Coverage endorsement, it could have easily done so. Because “if an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured,” Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334-335 (1) (380 SE2d 686) (1989), we must give Brown and West Atlanta the benefit of any inconsistency between these provisions. At the very least, these provisions are ambiguous: A word or phrase is ambiguous when “ ‘it is of uncertain meaning and may be fairly understood in more ways that one.’ ” Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989). The majority’s effort to “harmonize” these inconsistent provisions deprives Brown and West Atlanta of the benefit of this longstanding rule of contract construction.

Moreover, I cannot agree with the majority’s conclusion that the Assault and Battery Exclusion does not render the E & O Coverage worthless. What would be the benefit of the E & O Coverage endorsement if the majority is correct? I see none.

The nature of the security business, particularly in a sports bar, is such that by its very nature dealing with confrontations must be expected, and confrontations that result in assaults or batteries are part and parcel of the business. Further, the incident in this case falls squarely within the scope of the endorsement: “damages arising out of the rendering or.failing to render professional services during the policy period in the conduct of the named insured detective or security guard operations.”

If this incident is not exactly what is contemplated by the E & O Coverage, then what is covered? Are we to believe that West Atlanta procured this coverage to protect them in lawsuits from patrons who were denied admission to the sports bar?

As the construction given these exclusions by the majority, in effect, vitiates the E & O Coverage endorsement, it violates the principles of contract construction that “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part,” OCGA § 13-2-2 (4), and that courts “should avoid an interpretation of a contract which renders portions of the language of the contract meaningless.” Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 675 (357 SE2d 100) (1987).

Accordingly, I must respectfully dissent in part.

I am authorized to state that Judge Phipps and Judge Mikell join in this opinion.

*870Decided March 27, 2003 Reconsideration denied April 14, 2003 Swift, Currie, McGhee & Hiers, Lynn M. Roberson, John S. Berry, for appellant. Millar & Mixon, Bruce R. Millar, Hawkins & Parnell, William H. Major, Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Temple, Strickland, Counts & Dinges, William D. Strickland, Jack F. Witcher, James B. Sullivan, Donald J. Sharp, for appellees.

The Assault and Battery Exclusion also states that it applies to the Products/Completed Operations Coverage Part, but that coverage is not relevant to this case.

This endorsement also states that it applies to the Products/Completed Operations Coverage Part.