THE STATE OF
In The Court of Appeals
Companion Property and Casualty Insurance Company, Respondent,
Airborne Express, Inc., Moore Express, Inc., and Charles Carpenter, as personal representative of the estate of Jessica Lynne Carpenter, Defendants,
Of whom Airborne Express, Inc. and Charles Carpenter, as personal representative of the estate of Jessica Lynne Carpenter, are the Appellants.
James C. Williams, Jr., Circuit Court Judge
Opinion No. 4124
Heard May 9, 2006 – Filed June 19, 2006
Robin A. Braithwaite, of Aiken, and Jonathan M. Aldeman, of Atlanta, Georgia, for Appellant Airborne Express; Ronald A. Maxwell, of Aiken, and James L. Ford, Sr., of Atlanta, Georgia, for Appellant Charles Carpenter.
Karl Stephen Brehmer, of
Columbia, and Marvin D. Dikeman and Melissa C. Patton, both of Atlanta, Georgia, for Respondent.
STILWELL, J.: Airborne Express, Inc. and Charles Carpenter appeal the trial court’s grant of summary judgment in favor of Companion Property and Casualty Insurance Company in this declaratory judgment action. We affirm.
This case arises from the tragic sexual assault and murder of Carpenter’s daughter, seventeen-year-old Jessica Carpenter. Robert Franklin Atkins was employed by Moore Express, Inc., a package delivery sub-contractor for Airborne. In late July of 2000, Atkins, a convicted felon, delivered a package to the Carpenter home. He returned to the home on August 4th dressed in his Airborne uniform and driving an Airborne delivery vehicle, gained entry to the premises, and attacked Jessica.
Carpenter, in his capacity as Jessica’s personal representative, filed a wrongful death and survival action against Airborne,
STANDARD OF REVIEW
In reviewing a motion for summary judgment, the appellate court applies the same standard of review as the trial court under Rule 56(c), SCRCP. Cowburn v. Leventis, 360 S.C. 20, 30, 619 S.E.2d 437, 443 (Ct. App. 2005) (citing Trousdell v. Cannon, 351 S.C. 636, 639, 572 S.E.2d 264, 265 (2002)). Summary judgment should be affirmed if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Airborne appeals the trial court’s determination that Carpenter’s complaint failed to allege an “occurrence” within the contemplation of the terms of the policy and that the intentional acts exclusion of the policy precludes coverage. Carpenter contends the court improperly applied the summary judgment standard by finding inferences in favor of the moving party, Companion.
As a preliminary matter, we must determine which state’s law applies. In construing insurance policies,
An insurer’s duty to defend is determined by examining the allegations contained in the complaint and comparing them to the coverage provided by the policy. Batson-Cooke Co. v. Aetna Ins. Co., 409 S.E.2d 41, 42-43 (
The initial allegation, that Airborne and
Moore’s CGL policy provides the following:
This insurance applies to “bodily injury” or “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory[.]”
Occurrence is defined in the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Airborne argues that whether Jessica’s murder was an “accident” must be viewed not from Atkins’ standpoint, but from the standpoint of Airborne and
Even if Crook supports the notion that an intentional act committed by one party may be considered an accident as to an insured in certain circumstances, it does not support Airborne’s main contention. In Crook, the intentional act causing the ultimate event complained of was committed by a total stranger to the policy, and such act was not attributable, either vicariously or otherwise, to the insured. To interpret Crook to mean that the intentional acts of Atkins are completely severable from
O’Dell also claims that
St. Paul must defend the lawsuit on behalf of DRACS and DRA because [plaintiff] alleged facts on which a cause of action for negligent retention of O’Dell could be based. We note initially that the policy does not recite that it covers losses due to negligent retention. But even if this were true, the complaint does not allege that [plaintiff] suffered bodily injuries, and even assuming she did suffer bodily injuries, she did not allege that those injuries were caused by an accident and thus were brought about by an “event.”
We find the factual scenario in O’Dell so similar to those in the instant case that we consider the holding therein to be controlling here. In O’Dell, the plaintiff alleged an intentional tort, sexual harassment, and brought a claim of negligent retention against DRACS and DRA. The Georgia Court of Appeals concluded that the negligent retention claim specifically was not a covered “event” under the CGL policy because the plaintiff did not allege her injuries were caused by an accident.
In this case, the plaintiff has alleged intentional acts, assault and murder, and has asserted a negligence claim against
The decision of the Eleventh Circuit in SCI Liquidating Corp. v. Hartford Fire Ins. Co., 181 F.3d 1210 (1999), supports our interpretation of O’Dell by stating, “[t]he Georgia Court [in O’Dell] concluded that the plaintiff’s negligent retention claims also were not covered, because, among other things, the plaintiff ‘did not allege that those injuries were caused by an accident and thus were brought about by an ‘event.’”
Because we conclude Carpenter’s complaint does not allege an occurrence under the policy, thereby negating Companion’s obligation to defend, we decline to address whether the policy’s intentional act exclusion is applicable. See Rule 220(c), SCACR; Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 498, 613, 518 S.E.2d 591, 598 (1999) (“[A]n appellate court need not address remaining issues when disposition of prior issue is dispositive.”).
HUFF and BEATTY, JJ., concur.
Moore also had a commercial automobile policy through Companion, and both
 Airborne and Carpenter also contend that the cases relied upon by Companion are factually distinct from this case. As that question is essentially part and parcel of the central issue on appeal, we do not address it separately.
 The policy at issue also contains a “separation of insureds” clause that indicates each insured will be treated severally under the policy. Had this issue been sufficiently preserved by having been raised to and ruled upon by the trial court, this case would potentially require a different analysis. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) (holding that an issue must be raised to and ruled upon by the trial court to be preserved for appellate review).