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St. Paul Reinsurance Co.9/28/2005
WHOLE COURT
In Ross v. St. Paul Reinsurance Co., 279 Ga. 92 (610 SE2d 57) (2005), the Supreme Court of Georgia reversed our previous decision in these consolidated appeals arising out of a garnishment action brought by Shirley and Ronald Ross against St. Paul Reinsurance Company, Ltd. in the State Court of DeKalb County. See St. Paul Reinsurance Co. v. Ross, 266 Ga. App. 75 (596 SE2d 193) (2004). In reversing this Court, the Supreme Court held that a tort judgment creditor has standing to bring a garnishment action seeking recovery of all or part of the judgment from the insurer of the tort judgment debtor. Accordingly, our previous opinion and judgment is vacated and set aside, and the decision of the Supreme Court is hereby made the decision of this Court as to the issue of standing. However, " he issues submitted by the remaining enumerations of error which were rendered moot by our previous decision are reopened by the decision of the Supreme Court." Stevens v. Wakefield, 163 Ga. App. 40 (292 SE2d 516) (1982). See also St. Paul Fire & Marine Ins. Co. v. Clark, 255 Ga. App. 14, 19 (2) (c) (566 SE2d 2) (2002) (en banc). We address the remaining enumerations below, namely, whether the trial court erred (1) in concluding that the liability insurance policy issued to Akhtar did not exclude from coverage the Rosses' claim predicated on the shooting of Ronald Ross and (2) in calculating post-judgment interest. We affirm the trial court's ruling as to the first issue, but reverse as to the second.
The basic facts and history surrounding this garnishment action, which has been before us on multiple occasions, are as follows. On May 5, 1998, the Rosses brought a personal injury action against Jeff Akhtar for, inter alia, negligent failure to prevent physical injury to Ronald Ross after he was shot by a stray bullet in the parking lot of a nightclub owned by Akhtar. After the lawsuit commenced, Akhtar declared bankruptcy , and the Rosses and Akhtar agreed to entry of a consent judgment. Consequently, on June 29, 1999, the trial court entered a final judgment by consent on the Rosses' negligence claim against Akhtar in the amount of $500,000 in compensatory damages.
Akhtar and his nightclub were insured to the extent of $300,000 under a liability insurance policy issued by St. Paul Reinsurance Company. However, St. Paul denied coverage for the shooting incident and informed Akhtar that it would not defend him in the underlying personal injury action or indemnify him for any damages recovered by the Rosses based on an assault and battery exclusion contained in the liability policy. St. Paul did not file a declaratory judgment action to resolve the coverage issue during the pendency of the personal injury action.
Subsequently, on August 11, 1999, the Rosses brought the instant garnishment action against St. Paul, contending that St. Paul was indebted to them on the $500,000 consent judgment because the shooting was covered by the liability policy. St. Paul answered, denying indebtedness, and filed a motion to dismiss, or alternatively, a motion for summary judgment, on the ground that the shooting arose out of an assault and battery and, therefore, was excluded from liability coverage. The Rosses filed a traverse to St. Paul's answer. On February 18, 2000, the trial court held an evidentiary hearing on St. Paul's motion for summary judgment and the Rosses' traverse.
On June 13, 2000, the trial court entered an amended order denying St. Paul's motion for summary judgment and granting the Rosses' traverse, finding that "the damages for which the insured defendant, Jeff Akhtar, became liable in this case were not excluded from the garnishee's insurance policy." H
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