Nationwide Mutual Fire Insurance Company “Nationwide” filed a declaratory judgment action to determine its responsibilities in connection with a personal injury action filed by Chong Yang against Nationwide’s insured, Yong Kim, arising out of an alleged battery. The trial court granted in part and denied in part Nationwide’s motion for summary judgment, ruling that Yang’s claim for punitive damages is not covered by the policy, but that her claims for negligence and gross negligence are covered. In Case No. A08A1063, Nationwide appeals the latter portion of the trial court’s order, while in Case Nos. A08A1064 and A08A1065, Kim and Yang cross-appeal from the former. For the reasons that follow, we affirm in Case No. A08A1063 and reverse in Case Nos. A08A1064 and A08A1065. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.1 So viewed, the record reflects that on or about October 2, 2005, Kim allegedly threw a metal ice cream scoop at Yang, striking her in the face. Kim was charged with two counts of simple battery, and one count each of battery and disorderly conduct. In her affidavit, Kim described the incident as follows: on October 5, 2005, at a karaoke bar in PlaceNameplaceDekalbPlaceTypeCountyYang was hit in the head with an ice cream scoop which I had previously held in my hand. While dancing and waving the ice cream scoop, I accidentally lost my grip on the scoop which then flew across the room striking Yang. I did not intend to harm Yang nor did I intend to throw the ice cream scoop at or near Yang. The entire incident, including injury to Yang, was an unintended accident on my part. Kim further averred that the state court charges against her were no longer pending and that she had not been indicted by the PlaceNameplaceSuperiorPlaceTypeCourtPlaceNameofPlaceNameDekalbPlaceTypeCounty
On July 31, 2006, Yang filed a “Complaint for Damages Arising From Assault and Battery” against Kim in the State Court of Dekalb County, alleging that on or about October 2, 2005, Kim “unlawfully, intentionally, and without provocation or justification committed an assault and battery upon Yang by throwing a metal ice scooper and striking Yang in the face.” Yang sought both compensatory and punitive damages. On November 20, 2006, Yang amended her complaint by asserting that Kim “was negligent in her actions resulting in the alleged injuries to plaintiff.” On July 3, 2007, Yang filed a verified “Amended Complaint for Damages,” which amended her original complaint in its entirety. The amended complaint deleted all factual allegations asserted in the original complaint and the intentional tort claim, alleging instead that Kim “negligently threw and without reasonable care threw a metal ice scooper in Yang’s direction . . . , striking her in the face.” Yang further alleged that Kim “recklessly and with willful disregard for Yang’s safety, threw a metal ice scooper in Yang’s direction . . . striking her in the face. Kim’s reckless disregard for Yang’s safety . . . constituted gross negligence.” Yang maintained her claim for both compensatory and punitive damages. Kim demanded indemnification and a defense under her homeowner’s insurance policy issued by Nationwide. Nationwide undertook the defense of the action pursuant to a reservation of rights and then filed this declaratory judgment action to determine whether it was obligated to defend and indemnify Kim in the underlying action. The policy provides as follows:We will pay damages an insured is legally obligated to pay due to an occurrence resulting from negligent personal acts or negligence arising out of the ownership, maintenance or use of real or personal property. We will provide a defense at our expense by counsel of our choice. We may investigate and settle any claim or suit. Our duty to defend a claim or suit ends when the amount we pay for damages equals our limit of liability. The policy defines “occurrence” as “bodily injury or property damage resulting from an accident, including continuous or repeated exposure to the same general condition.” The policy excludes coverage for bodily injury
