Jefferson Ins. Co. of New York v. Dunn, 496 S.E.2d 696 (Ga. 1998). · Go Syfert
Jefferson Ins. Co. of New York v. Dunn, 496 S.E.2d 696 (Ga. 1998). Cases Citing This Book View Copy Cite
52 citation events (43 in the last 25 years) across 6 distinct courts.
Strongest positive: ZURICH AMERICAN INSURANCE COMPANY v. MARK EUBANKS (gactapp, 2026-03-06)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 24 distinct citers.
cited Cited as authority (rule) ZURICH AMERICAN INSURANCE COMPANY v. MARK EUBANKS
Ga. Ct. App. · 2026 · confidence medium
Co. of New York v. Dunn, 269 Ga. 213, 215 ( 496 SE2d 696 ) (1998) (“by its express terms, 26 These policies were in effect from June 10, 2016 through June 10, 2021.
discussed Cited as authority (rule) AIKG, LLC v. The Cincinnati Insurance Company
N.D. Ga. · 2021 · confidence medium
Unambiguous terms must be given effect “even if beneficial to the insurer and detrimental to the insured,” and Georgia courts 5 T:\ORDERS\20\AIKG, LLC\mtdtwt.docx “will not strain to extend coverage where none was contracted or intended.” , 269 Ga. 213, 215 (1998) (quotation marks and citation omitted).
discussed Cited as authority (rule) Georgia Interlocal Risk Management Agency v. City of Sandy Springs
Ga. Ct. App. · 2016 · confidence medium
Co. of New York v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998). “[A]n insurance company is free to fix the terms of its policies as it sees fit, so long as such terms are not contrary to law, and it is equally free to insure against certain risks while excluding others.” Continental Cas.
discussed Cited as authority (rule) Carl D. Zook v. Arch Specialty Insurance Company
Ga. Ct. App. · 2016 · confidence medium
Co. of New York v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998) (finding no material distinction in this context between “caused by” and “arose out of”). 15 to his testimony, the incident began when he was struck with the door and grabbed by his shirt, which are batteries.25 Assault and battery were the genesis of Zook’s claims for false imprisonment and arrest.26 Accordingly, the trial court did not err in finding that, under the policy, Zook’s claim for damages for false imprisonment “arose out of” an assault and battery and were thus subject to the $50,000 sublimit in the …
discussed Cited as authority (rule) Mjq Concourse, Inc. v. Arch Specialty Insurance Company
Ga. Ct. App. · 2016 · confidence medium
Co. of New York v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998) (finding no material distinction in this context between “caused by” and “arose out of”). 25 Kohler v. Van Peteghem, 330 Ga. App. 230, 234 (1) ( 767 SE2d 775 ) (2014) (“The touching of another without her consent, even if minimal, constitutes a battery.
cited Cited as authority (rule) Hays v. Georgia Farm Bureau Mutual Insurance Co.
Ga. Ct. App. · 2012 · confidence medium
Co. &c. v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998).
cited Cited as authority (rule) State Farm Fire & Casualty Co. v. Bauman
Ga. Ct. App. · 2012 · confidence medium
Co. &c. v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998); Continental Cas.
cited Cited as authority (rule) City of College Park v. Georgia Interlocal Risk Management Agency
Ga. Ct. App. · 2011 · confidence medium
Co. &c. v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998). 42 Jefferson Ins.
cited Cited as authority (rule) Video Warehouse, Inc. v. Southern Trust Insurance Co.
Ga. Ct. App. · 2009 · confidence medium
Co. &c. v. Dunn, 269 Ga. 213, 215-216 ( 496 SE2d 696 ) (1998).
discussed Cited as authority (rule) Lavoi Corp. v. National Fire Insurance of Hartford
Ga. Ct. App. · 2008 · confidence medium
Co. v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998). 7 OCGA § 33-4-6 (a) provides that [i]n the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 50 percent of the liability of the insurer for the loss or $5,000.00, whichever is greater, and all reasonable attorney’s fees for the prosecution of the action against th…
discussed Cited as authority (rule) Fireman's Fund Ins. Co. v. UNIV. OF GEORGIA ATHLETIC ASS'N, INC. (2×)
Ga. Ct. App. · 2007 · confidence medium
Co. &c. v. Dunn, 269 Ga. 213, 215-216 ( 496 SE2d 696 ) (1998) (claims of negligent hiring and negligent supervision arose out of bar employee’s intentional assault and battery of patron within meaning of exclusion for bodily injury or death caused by assault or battery where bar’s exercise of care in hiring and supervising employee would have prevented the employee’s tortious conduct); Continental Cas.
cited Cited as authority (rule) Cincinnati Insurance v. Magnolia Estates, Inc.
Ga. Ct. App. · 2007 · confidence medium
Co. of New York v. Dunn, 269 Ga. 213, 215 ( 496 SE2d 696 ) (1998) (assault and battery exclusion).
cited Cited as authority (rule) ALEA London Limited v. Woodcock
Ga. Ct. App. · 2007 · confidence medium
Co. &c. v. Dunn, 269 Ga. 213, 214, n. 1 ( 496 SE2d 696 ) (1998); Capitol Indem. v. Brown, 260 Ga. App. 863, 864 (1) ( 581 SE2d 339 ) (2003); Eady v. Capitol Indem.
cited Cited as authority (rule) BBL-MCCARTHY, LLC v. Baldwin Paving Co.
Ga. Ct. App. · 2007 · confidence medium
Co. of New York v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998). 19 Seaboard Coast Line R.
cited Cited as authority (rule) ST. PAUL REINSURANCE CO., LTD. v. Ross
Ga. Ct. App. · 2005 · confidence medium
Co. &c. v. Dunn, *139 269 Ga. 213, 215 ( 496 SE2d 696 ) (1998) (discussing test for determining whether insurance policy exclusion applies); Eady v. Capitol Indem.
cited Cited as authority (rule) Selective Way Insurance v. Litigation Technology, Inc.
Ga. Ct. App. · 2004 · confidence medium
Co. of New York v. Dunn, 269 Ga. 213, 216 ( 469 SE2d 696 ) (1998).
discussed Cited as authority (rule) Pilz v. Monticello Insurance
Ga. Ct. App. · 2004 · confidence medium
Co. &c. v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998). 6 266 Ga. 260 ( 466 SE2d 4 ) (1996). 7 Id. at 261-262 . 8 Id. at 262 . 9 269 Ga. 213 ( 496 SE2d 696 ) (1998). 10 (Emphasis omitted.) Id. at 216. 11 OCGA § 51-7-20; Collier v. Evans, 199 Ga. App. 763, 764 (1) ( 406 SE2d 90 ) (1991) (false imprisonment is an intentional tort). 12 226 Ga. App. 450 ( 486 SE2d 674 ) (1997). 13 Id. at 452 .
cited Cited as authority (rule) Manning v. USF&G Insurance
Ga. Ct. App. · 2003 · confidence medium
Co. of New York v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998). 4 Marquis v. State Farm Fire &c.
cited Cited as authority (rule) Capitol Indemnity, Inc. v. Brown
Ga. Ct. App. · 2003 · confidence medium
Co. &c. v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998); Eady v. Capitol Indem.
cited Cited as authority (rule) Phillips v. South West Mechanical Contractors, Inc.
Ga. Ct. App. · 2002 · confidence medium
Co. of New York v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998).
cited Cited as authority (rule) Georgia Farm Bureau Mutual Insurance v. Russum
Ga. Ct. App. · 2001 · confidence medium
Co. &c. v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998).
cited Cited as authority (rule) Continental Insurance v. American Motorist Insurance
Ga. Ct. App. · 2000 · confidence medium
Co. &c. v. Dunn, 224 Ga. App. 732, 736 (2) ( 482 SE2d 383 ) (1997), over *333 ruled on other grounds, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998). 3 See Leventhal v. American Bankers Ins.
cited Cited as authority (rule) Nationwide Mutual Fire Insurance v. Erwin
Ga. Ct. App. · 1999 · confidence medium
Assn. v. Lucas, 200 Ga. App. 383, 384 (1) ( 408 SE2d 171 ) (1991). 5 269 Ga. 213, 215 ( 496 SE2d 696 ) (1998). 6 Eady v. Capitol Indem.
cited Cited as authority (rule) Eady v. Capitol Indemnity Corp.
Ga. Ct. App. · 1998 · confidence medium
Co. v. Dunn, 269 Ga. 213, 216 ( 496 SE2d 696 ) (1998).
JEFFERSON INSURANCE COMPANY OF NEW YORK
v.
DUNN
S97G0909.
Supreme Court of Georgia.
Mar 2, 1998.
496 S.E.2d 696
Hawkins & Parnell, H. Lane Young II, Edward C. Henderson, Jr., Thomas G. Tidwell, for appellant., Nickerson & Tuszynski, Thomas H. Nickerson, David E. Tuszyn-ski, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, David D. Cookson, William Q. Bird, for appellee.
Sears, Thompson.
Cited by 45 opinions  |  Published

Lead Opinion

Thompson, Justice.

We granted a petition for certiorari to the Court of Appeals in Jefferson Ins. Co. v. Dunn, 224 Ga. App. 732 (482 SE2d 383) (1997), to determine whether that decision is in conflict with Continental Cas. Co. v. HSI Financial Svcs., 266 Ga. 260 (466 SE2d 4) (1996), and Dynamic Cleaning Svc. v. First Financial Ins. Co., 208 Ga. App. 37 (430 SE2d 33) (1993). Finding that such a conflict exists, we reverse.

Charles Dunn suffered brain damage as a result of having been severely beaten in the parking lot of the Jolly Fox Lounge by an employee, Rodney Goodman. Dunn filed a complaint against Goodman, alleging intentional assault and battery, and against the Jolly Fox Lounge, under a theory of respondeat superior. The Jolly Fox was owned by Overground Atlanta, Inc. (Overground), which had a general liability insurance policy with Jefferson Insurance Company of New York (Jefferson).

Overground submitted the complaint to Jefferson, but Jefferson refused to defend Overground, relying on a policy endorsement which excluded coverage for injuries or death alleged “to have been caused by ASSAULT AND/OR BATTERY.”[1] Overground retained counsel to[*214] defend the lawsuit. Dunn subsequently amended his complaint to include claims of negligent hiring, negligent supervision, and malicious prosecution. Prior to trial, Dunn offered to settle his claim for $50,000 — the limits of the Jefferson policy. Overground’s counsel notified Jefferson and conveyed Overground’s instructions to accept the offer of settlement, but Jefferson declined, again relying on the assault and battery exclusion.

The case went to trial and a jury returned a verdict of $1 million in compensatory and punitive damages against Overground, finding it liable for claims of negligence, false imprisonment, and malicious prosecution. Jefferson entered the case and prosecuted an appeal on behalf of Overground under a bilateral reservation of rights. The Court of Appeals affirmed the judgment, finding Overground liable “on a theory of direct liability.” Overground Atlanta v. Dunn, 191 Ga. App. 188, 191 (2) (381 SE2d 137) (1989).

Following the appeal, Overground and Jefferson entered into a release and settlement agreement. Pursuant to that agreement, Jefferson paid Overground $5,500, and Overground released any claims it might have against Jefferson.[2] At this time, Overground was an insolvent corporation with no assets.

Dunn then filed the present action against Jefferson, Overground, and Overground’s counsel, seeking damages on the basis that the release and settlement agreement amounted to a fraudulent conveyance of Overground’s only asset and only means to satisfy the $1 million judgment — the policy limits and its potential claim against Jefferson for bad faith refusal to defend or settle Dunn’s lawsuit. Judgment was entered on a jury verdict in favor of Dunn totaling $4.5 million ($1.5 million in compensatory damages and $3 million in punitive damages).

The Court of Appeals affirmed, ruling in pertinent part that the trial court correctly granted a motion in limine precluding Jefferson from arguing that its policy excluded Dunn’s personal injury claim. Jefferson Ins. Co. v. Dunn, supra at (2). In so doing, the Court of Appeals distinguished Continental Cas. Co., supra, which held that a similar policy exclusion barred a claim for negligent supervision where plaintiff’s claims arose out of an employee’s conduct which was excluded under the policy. Id. at 262.

Dunn’s claim in the present litigation is grounded on OCGA § 18-2-22, which provides in pertinent part:

[*215] The following acts by debtors shall be fraudulent in law against creditors and others and as to them shall be null and void:
(1) Every assignment or transfer by a debtor, insolvent at the time, of real or personal property or choses in action of any description to any person, either in trust or for the benefit of or on behalf of creditors, where any trust or benefit is reserved to the assignor or any person for him.

Before a conveyance by an insolvent debtor can be attacked by his creditor under the foregoing Code section, “it must be made to appear that the insolvent debtor actually parted with some valuable asset which belonged to him, and which, if title had been retained, might have been subjected to his debts.” S. T. & W. A. Dewees Co. v. Paul B. Carter & Co., 190 Ga. 68, 73 (1) (8 SE2d 376) (1940). Thus, in order to prevail, Dunn must establish that by means of the release and settlement agreement, Overground purported to transfer a valuable asset to Jefferson. If Dunn’s claim was not barred by the assault and battery exclusion, and if Jefferson acted in bad faith in refusing to defend Dunn’s first lawsuit, it could be shown that Overground knowingly parted with a valuable asset “for the purpose of hindering or delaying creditors.” Id. at 72. It follows that resolution of Dunn’s claim turns on whether there was coverage under the Jefferson policy.

Continental Cas. Co., supra, involved the interpretation of an exclusionary clause in a professional liability insurance policy which barred coverage for any claim “arising out of any dishonest, fraudulent, criminal, or malicious act” committed by the partners of a law firm. Id. at 262. As in the present case, the complaint originally alleged conduct which was clearly excluded under the policy; but, by amendment, plaintiff included a claim for negligent supervision. We determined that, “by its express terms, the exclusionary clause is focused solely upon the genesis of [plaintiff’s] claims — if those claims arose out of [the employee’s] culpable conduct, as they did, then coverage need not be provided.” Id. at 262. We further reasoned:

were we to adopt [plaintiff’s] argument, the insureds, merely by amending their complaint to assert that the partners were negligent in failing to supervise, could conceivably bring every loss within coverage, regardless of whether it arose from criminal conduct. Such a result would impermis-sibly alter the plain meaning of the exclusionary clause.

Id. at 262, n. 4. Thus, we held that coverage need not be provided for a claim for negligent supervision, which arose out of conduct that[*216] came within the scope of the exclusionary clause.

Decided March 2, 1998 Reconsideration denied April 1,1998. Hawkins & Parnell, H. Lane Young II, Edward C. Henderson, Jr., Thomas G. Tidwell, for appellant. Nickerson & Tuszynski, Thomas H. Nickerson, David E. Tuszyn-ski, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, David D. Cookson, William Q. Bird, for appellee.

The Court of Appeals in the present case distinguished Continental Cas. Co., based on the “arose out of” language of the exclusionary clause, which it interpreted to provide a broader exclusion than the “caused by” language in the Jefferson policy. While the phrases differ, we find no material distinction in the duties and obligations imposed by the two policies. The claim in Continental Cas. Co. “arose out of” the exclusion, if “but for [the culpable conduct] there could be no claim [for negligent supervision].” Id. at 262. Likewise, “but for” an assault and battery caused by the employee, there could be no claim against Overground.

The policy exclusion is unambiguous and must be given effect, even if “beneficial to the insurer and detrimental to the insured.” Woodmen of the World Life Ins. Society v. Etheridge, 223 Ga. 231, 235 (154 SE2d 369) (1967). We will not strain to extend coverage where none was contracted or intended. Liberty Nat. Ins. Co. v. Davis, 198 Ga. App. 343 (401 SE2d 555) (1991). Accordingly, coverage is excluded under the Jefferson policy for Dunn’s claims. Accord Continental Cas. Co., supra; Dynamic Cleaning Svc., supra (where negligence is asserted as a concurrent cause of the injury, coverage need not be provided where the harm clearly arose out of conduct that came within the scope of the exclusionary clause).

Judgment reversed.

All the Justices concur, except Sears and Carley, JJ, who dissent.
1

The exclusion provision states as follows:

Notwithstanding anything contained herein to the contrary, it is understood and agreed in consideration of the premium charged, bodily injury or death alleged to[*214] have been caused by ASSAULT AND/OR BATTERY shall not be deemed an accident or occurrence under this policy and no coverage shall apply hereunder.
2

Jefferson asserts in the pretrial order that it paid the $5,500 to compensate Overground for legal fees it had incurred to defend the first lawsuit.

Dissent

Sears, Justice,

dissenting.

For all of the reasons thoroughly explained in the opinion of the Court of Appeals, I respectfully dissent. I am authorized to state that Justice Carley joins in this dissent.