PENNSYLVANIA MILLERS MUTUAL INSURANE. COMPANY v. Crews , 184 Ga. App. 492 ( 1987 )

Banke, Presiding Judge.

Crews, Jr., was injured while being paddled for disciplinary reasons by his school principal, when he twisted to avoid a second “lick” of the paddle. Crews, Sr., filed suit on behalf of his minor son against the principal, the school district, and the Board of Education of Charlton County to recover for the alleged excessive administration of corporal punishment by the principal. Subsequently, the school board’s liability insurer, appellant Pennsylvania Millers Mutual Insurance Company, commenced this action to obtain a declaratory judgment to the effect that the damages sought to be recovered in the Crews’ suit were not covered by the policy. The insurer appeals a grant of summary judgment in favor of the appellees in the declaratory judgment action, contending that it is protected from liability by a policy exclusion applicable to bodily injury expected or intended by the insured. Held:

“The general rule which appears to have developed through judicial interpretation and application of exclusionary provisions such as the one in the instant case is that they are inapplicable if and only if the insured acts without the intent or expectation of causing any injury, however slight. Conversely, such an exclusion is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected. See generally, Annot. 2, ALR3d 1238, 1243 § 4 (1965). Thus, there is a recognized distinction between intentional and unintentional results of intentional acts. ‘Intent’ is defined in Restatement, Torts 2d, § 8A (1965) ‘to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.’ ‘On the other hand, the mere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent.’ Prosser, The Law of Torts, p. 32 § 8 (4th ed. 1971).” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (291 SE2d 410) (1982).

Corporal punishment in Georgia schools is authorized by OCGA § 20-2-730 et seq., subject to certain specified limitations and procedures. The principal testified that while he had no intention of injuring Crews, he did administer the punishment to cause pain and discomfort. Indeed, as we have previously noted, “it is to be anticipated that corporal punishment will produce pain.” Maddox v. Boutwell, 176 Ga. App. 492, 493-494 (336 SE2d 599) (1985). However, the principal’s claim that he did not intend for the student to suffer the alleged physical injury would certainly warrant the conclusion that the injury was an unintended consequence of the spanking, thus rendering the policy exclusion inapplicable.

Contrary to the reasoning upon which the dissent is based, such a conclusion would not be foreclosed by the oft-quoted “rule of thumb” set forth in Great American Ins. Co. v. McKemie, 244 Ga. 84, 85-86 (259 SE2d 39) (1979), that “ ‘the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted.’ ” This language was quoted by the Great American court from Loftin v. U. S. Fire Ins. Co., 106 Ga. App. 287, 294 (127 SE2d 53) (1962), where it was specifically observed that this “rule” is confusing and has no application to a situation such as the one before us, where the actual facts bring the claim within the policy coverage, “but the [injured party’s] complaint against the insured falsely shows non-coverage.” Id. In such a situation, the Loftin court decreed that the insurer’s duty to defend was not discharged “merely by proving that the allegations of the complaint allege facts excluding the claim from the policy. [Cits.]” Id. It follows that the trial court did not err in granting summary judgment to the appellees in the present case.

Judgment affirmed.

Deen, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs in judgment only. Birdsong, C. J., McMurray, P. J., Carley and Sognier, JJ., dissent.