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Nationwide Mutual Fire Insurance Co. v. Somers12/1/2003
WHOLE COURT
Nationwide Mutual Fire Insurance Company appeals the grant of summary judgment to Deborah Somers, John Connolly and Margie Connolly, d/b/a Sunrise Memorial Gardens ("Sunrise"), John Connolly and Margie Connolly, d/b/a Easley Marble Company ("Easley"), Amanda Conant, and Phillip Ronald Woodall in the declaratory judgment action that Nationwide filed against them. Nationwide's complaint for a declaratory judgment alleged that it was uncertain about its rights and obligations under a commercial general liability policy it issued to Sunrise and asked the superior court for a declaratory judgment defining its rights and obligations and the legal relationships of the parties.
Somers is the plaintiff in an action against Sunrise alleging that Sunrise entered into a perpetual care contract that was assigned to her and that, under that contract, her son was buried at Sunrise. She contends that Sunrise breached the contract by failing to maintain the grave site and allowing it to be desecrated. She demanded compensatory and punitive damages and attorneys fees.
Sunrise demanded that Nationwide provide coverage under its Nationwide policy, but Nationwide contends one or more of the exclusions in the policy apply and that there is no coverage under the policy. Although Nationwide has provided Sunrise with a defense, it has reserved its rights under the policy. It has not, however, officially denied coverage.
Sunrise answered, denying that Nationwide was entitled to the declaratory judgment it sought . Sunrise also contended that Nationwide was estopped from denying coverage and also asserted that Nationwide had waived its denial of coverage. Further, even though Sunrise admitted that an actual controversy existed between Sunrise and Nationwide, Sunrise denied that an actual controversy existed regarding Easley .
Subsequently, Nationwide moved for summary judgment against the remaining defendants. Somers's complaint contained three counts: Count 1 alleged that Sunrise desecrated her son's grave with cigarette butts and animal feces, Count 2 alleged that Sunrise breached the perpetual care contract by permitting the grave to be littered with trash, and Count 3 alleged the RICO count which has been dismissed. Nationwide asserted that the damages sought in this complaint are not the type covered by its policy and, in fact, are excluded from the policy. Nationwide reasons that the policy covers bodily injury and property damage, as defined by the policy, that are caused by an occurrence, and that none of Somers's injuries fall within the policy's definitions. Nationwide further contends that the acts Somers alleges are intentional acts which are excluded by the policy and that Somers's allegation regarding breach of the perpetual care contract are not covered because the policy excludes coverage for "bodily injury or property damage for which the insured is obligated to pay damages by reason of assumption of liability in a contract or agreement."
Sunrise's response to the motion for summary judgment asserted that the policy clearly covered property damage claims arising from unintentional conduct, and Somers's complaint asserted claims for unintentional damage to her property. Accordingly, Sunrise contended that Nationwide was required to defend and indemnify it against her claims. Sunrise, however, did not file a motion or cross-motion for summary judgment.
The superior court denied Nationwide's motion, holding that, "under the type of notice pleading in this and the underlying case insurance coverage may be warranted, there are numerous factual issues to be parsed-out in this case," and "that summary judgment is not an ap
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