AFLAC Incorporated, a major insurance company primarily selling supplemental group and cancer insurance, brought the instant action against its insurers, Chubb & Son, Inc., Chubb Indemnity Insurance Company, Great Northern Insurance Co., and Jordan/Woofolk Insurance Co. “Chubb”. AFLAC sought declaratory relief as to coverage and damages under two Chubb contracts of all risk property insurance for remediation costs incurred upon converting its computer systems from two-digit to four-digit date recognition capability in anticipation of the Year 2000 “Y2K” computer problem; i.e. a known computer design limitation in computer hardware and software systems evidenced by incapacity for more than two-digit date recognition rendering such systems unable to properly recognize and manipulate 21st Century dates. Chubb answered, denying coverage and asserting 29 separate affirmative defenses. Following a status conference, the trial court stayed further discovery and ordered AFLAC to file a motion for summary judgment. This AFLAC did by its motion for partial summary judgment and declaratory judgment, seeking a declaration as to coverage. AFLAC appeals from the denial of summary judgment upon the grant of a certificate of immediate review, arguing that the trial court erred in failing to declare that the Chubb policies afforded it coverage; erred in not construing such insurance most strongly in favor of AFLAC as the insured; and erred in construing the policy terms in issue under the legal principles of fortuity and outside peril. Because AFLAC’s motion for partial summary judgment and declaratory relief was properly denied for want of coverage, we affirm. Held : 1. It is axiomatic on motion for summary judgment, all reasonable inferences must be construed in favor of the non-movant and that summary judgment is warranted only when the record shows by plain, palpable, and undisputed evidence that a party is entitled to judgment as a matter of law. Connell v. Guarantee Trust Life Ins. Co. , 246 Ga. App. 467, 469 541 SE2d 403 2000. If the movant for summary judgment fails to show an entitlement to a judgment as a matter of law, with the evidence viewed in favor of the non-moving party, a prima facie case has not been shown. Case v. RGA Ins. Svcs., Inc. , 239 Ga. App. 1, 3 521 SE2d 32 1999. Moreover, in an action on an insurance policy, the insured must show that the occurrence was within the type of risk insured against in order to make a prima facie case. Georgia Farm Bureau Mutual Ins. Co. v. Alloway , 134 Ga. App. 660, 661 215 SE2d 506 1975.
The policies here in issue, Chubb’s Financial Institutions Policy “Financial Policy” and its International Commercial Policy “International Policy”, as renewed,1 insured AFLAC under similar terms of insurance. Both policies provided AFLAC all-risk personal property coverage —the International Policy “for direct physical loss of, or damage to” covered property and the Financial Policy for “direct physical loss or damage to” such property if caused by or the result of a peril not otherwise excluded. The Financial Policy also insured AFLAC against “direct physical loss or damage to” newly acquired electronic data processing equipment and against extra business expenses, actual or potential, incurred for operational delay upon such loss or damage to property “away from” the insured premises by civil authority. In light of the foregoing, we must determine the meaning of nearly identical terms of insurance, that is, coverage as in the International Policy for “direct physical loss of, or damage to” insured property and coverage as in the Financial Institutions Policy for “direct physical loss or damage to” the same. The relevant rules of contract construction guide the analysis of these contract provisions. In construing an insurance contract the court must consider it as a whole, give effect to each provision, and interpret each provision to harmonize with each other. Boardman Petroleum, Inc. v. Federated Mut. Ins. Co. , 269 Ga. 326, 328 498 SE2d 492 1998. The policy should be read as the layman would read it. Nationwide Mut. Ins. Co. v. Collins , 136 Ga. App. 671 222 SE2d 828 1975. York Ins. Co. v. Williams Seafood of Albany, Inc. , 273 Ga. 710, 712 1 544 SE2d 156 2001. By its brief on appeal, as it did below, AFLAC contends that the terms of insurance in issue should be read disjunctively in that each employs the word “or”; that the words “direct physical” should be read as modifying the word “loss” alone; and, citing American Online, Inc. v. Nat’l Health Care , 121 F. Supp. 2d 1255 N. D. Iowa 2000, that the word “damage” should be read as providing coverage separately for “any impairment to the integrity or availability of data.” AFLAC further contends that the insertion of a comma after the word “loss” in the International Policy “heavily buttresses” its interpretation of the insuring clauses as terms of insurance in the disjunctive affording it separate coverages for direct physical loss and for damage. We disagree.
