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Landmark Am. Ins. Co. v. Khan

The trial court properly granted the plaintiff's motion for partial summary judgment on to his breach of duty to defend claim because the allegations in his complaint sufficiently triggered the insurance company's duty to defend, evidence showed no circumstances that might have relieved the insurance company of such duty and the insurance company failed to defend its insured.

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Jamil Khan, individually and as assignee of 6420 Roswell Road, Inc., d/b/a “Flashers,” filed suit against Landmark American Insurance Company, asserting, inter alia, that Landmark breached its duty to defend its insured, Flashers, in an underlying premises liability suit brought by Khan. Following a hearing, the trial court granted Khan’s motion for partial summary judgment on the issue of Landmark’s liability on the failure-to-defend claim and denied Landmark’s motion to dismiss Khan’s complaint. Landmark appeals from the trial court’s order, contending that the court erred in failing to dismiss Khan’s complaint and in ruling in favor of Khan as to liability because its insurance contract with Flashers barred coverage in the underlying action. For the following reasons, we disagree and affirm the trial court’s ruling. 1. Landmark contends that the trial court erred in denying its motion to dismiss Khan’s complaint against Landmark asserting a breach of its duty to defend Flashers in the underlying suit, arguing that, because its insurance contract with Flashers barred coverage in the underlying suit, Khan’s claim must fail.

“A motion to dismiss for failure to state a claim should be sustained if the allegations of the complaint reveal, with certainty, that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the complaint.” Footnote omitted. LaSonde v. Chase Mortgage Co. , 259 Ga. App. 772, 774 1 577 SE2d 822 2003. “On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.” Citations, punctuation and footnote omitted. Liu v. Boyd , 294 Ga. App. 224 668 SE2d 843 2008.

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