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St. Paul Reinsurance Co.9/28/2005
514) (1998) (same). Significantly, the transcript of the evidentiary hearing appears nowhere in the record. Nor has St. Paul utilized any of the alternative procedures set forth in OCGA ยง 5-6-41 for circumstances where a transcript is unavailable.
Without access to the hearing transcript, we cannot determine whether evidentiary submissions, stipulations, or statements in place by counsel were tendered at the hearing. Without this knowledge, we cannot adequately address [St. Paul's claim of error] on appeal. The burden is on an appellant to show error by the record, and when a portion of the record which is necessary for our determination of one or more appellate issues is not before the court, the trial court's express or implicit ruling as to those issues must be affirmed.
Gill v. B & R Intern., Inc., 234 Ga. App. 528, 531 (1) (c) (507 SE2d 477) (1998). "Without a transcript of the testimony below, we cannot review the basis for the [trial court's] finding ." Sampson v. Intellectual Techns., Inc., 242 Ga. App. 493, 494 (2) (529 SE2d 921) (2000). Thus, we are unable to review St. Paul's claim of error. Lott v. Arrington & Hollowell, P.C., 258 Ga. App. 51, 53-54 (1) (572 SE2d 664) (2002).
Nevertheless, quoting Bates v. Guaranty National Insurance Co., 223 Ga. App. 11, 14 (2) (476 SE2d 797) (1996), St. Paul argues that the hearing transcript is not necessary because "the allegations of the complaint [brought against the insured] provide the basis for determining whether liability exists under the terms of the insurance policy." But, Bates does not hold or suggest that the allegations in the underlying tort complaint brought against the insured provide the sole basis for determining whether an insurance policy exclusion applies. Rather, Bates simply holds that an insurer can meet its initial burden of showing that a policy exclusion applies by relying on the allegations of the underlying complaint; the burden then shifts to the party seeking coverage under the policy to come forward with other evidence creating a genuine issue of fact over whether the exclusion is applicable. Id. Thus, the fact that the record contains a copy of the Rosses' underlying personal injury complaint does not negate the need for an evidentiary hearing transcript, since the analysis of whether the assault and battery exclusion applies begins, but does not end, with that complaint.
However, St. Paul emphasizes that the burden-shifting mechanism discussed in Bates arose in a case where the insured, claiming coverage under the insurance policy, brought suit against the insurer. St. Paul argues that while it may be true that "an insured suing its own insurer is entitled to contest the complaint [filed] in the underlying action," the personal injury plaintiff who sued the insured in the underlying tort action should not be permitted to take a position inconsistent with the allegations in his own tort complaint when he later sues the insurer in garnishment. In this regard, St. Paul contends that the specific allegations in the Rosses' complaint in the underlying personal injury suit brought against Akhtar clearly come within the assault and battery exclusion, and so the Rosses should be bound by those allegations in the garnishment action.
Pretermitting whether the specific allegations in the Rosses' complaint in the underlying personal injury suit can only be construed as coming within the assault and battery exclusion, we reject St. Paul's attempt to distinguish Bates. Although we are sympathetic to St. Paul's position, binding precedent of this Court holds to the contrary. In Nichols v. Ocean Accident & Guar. Corp., 70 Ga. App. 169 (2) (27 SE2d 764) (1943), we held it permiss
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