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An insurer under a comprehensive general liability insurance policy was not obligated to defend the insured in a suit alleging sexual harassment, assault and battery, according to the Court of Appeals of Georgia.
Daniel Lee O'Dell owned two companies that were covered under CGL policies issued by St. Paul Fire & Marine Insurance Co. The policies covered bodily injury, property damage, personal injury and advertising injury. Tracey Gilleland, an O'Dell employee, sued Mr. O'Dell and his two companies, alleging that Mr. O'Dell sexually taunted and harassed her with the knowledge of both of his companies during her employment as office manager of the two companies. Ms. Gilleland sought damages for claims of assault, battery, intentional infliction of emotional distress, and sexual harassment. Mr. O'Dell sought coverage and defense of the suit from St. Paul. St. Paul declined coverage. Mr. O'Dell brought this suit seeking to force St. Paul to provide coverage. The trial court ruled for the insurer.
The appellate court said it was undisputed that Ms. Gilleland sought damages for bodily and personal injury. The court said that, in Georgia, bodily injury means just "bodily injury." According to the court, it pertains to physical injury to the body, not emotional or mental harm. Furthermore, the court said the policy required the bodily injury to arise out of an "event," e.g., an accident. An accident refers to an event which takes place without one's foresight or expectation or design, the court said. Thus, the court agreed that the CGL policies did not cover Ms. Gilleland's claims and that St. Paul did not have a duty to defend Mr. O'Dell. The trial court decision was affirmed.
O'Dell vs. St. Paul Fire & Marine Insurance, Court of Appeals of Georgia, Nov. 18, 1996 (BI/03/Ju.-$10).
Subrogation clause ruled non-enforceable
In a case of first impression in Oklahoma, the state Supreme Court ruled that a subrogation and reimbursement clause in an ERISA plan was not enforceable against a beneficiary.
L.C. Youngblood was covered under an ERISA plan as an employee of Ft. Howard Paper Co. A subrogation and reimbursement provision in the plan gave the plan certain rights to repayment for amounts it had paid on behalf of a "plan member." Kim Youngblood, a minor daughter of L.C. Youngblood, was injured in an automobile accident. Her medical expenses and damages exceeded $150,000. She received only $40,000 from liability insurance companies for the negligent driver. The plan paid $31,845 in medical expenses for Ms. Youngblood arising from the accident. The plan then sought subrogation of the payment by the automobile insurance policies. The trial court ruled against the plan; however, the Court of Appeals found for the plan.
The state Supreme Court held that, where the subrogation or reimbursement contract does not expressly sets priorities for the repayment of benefits, nor otherwise gives a right to subrogation or reimbursement before any funds are paid to the beneficiary, nor vests the plan manager's discretionary authority to interpret ambiguous plan provisions, and the compensation received by the beneficiary from settlement or judgment against a third party represents less than full compensation, then the subrogation or reimbursement clause is not enforceable against the beneficiary. The appellate decision was reversed.
Equity Fire & Cas. Co. vs. Youngblood, Supreme Court of Oklahoma, Nov. 12, 1996 (BI/04/Ju.-$10).
These abstracts were prepared by Mayo H. Stiegler. Copies of these decisions are available by sending a $10 check payable to Mayo H. Stiegler, to Business Insurance, 740 N. Rush St., Chicago, Ill. 60611-2590. List the number for each opinion.