1, 2. The trial court erred in granting plaintiff's motion for summary judgment and in denying defendants' motion for summary judgment where there was no genuine issue of material fact, and the loss complained of was not covered by the insurance policies.
The plaintiff, owner of a shopping center, sued the defendant insurers to recover for damages to buildings within the shopping center caused by vandalism allegedly covered under the provisions of multi-peril insurance policies issued by the defendants. The complaint includes a prayer for the total amount of damages plus penalties and attorney's fees. After defensive pleadings were filed, both sides filed motions for summary judgments. The plaintiff's motion was limited to the question of liability, only admitting there is a genuine issue as to the amount of damage. The defendants move for summary judgment in its favor on the issue of penalties and attorney fees. The trial court granted plaintiff's motion, denied defendants', and certified the denial to this court for direct review.
Evidence submitted by depositions, interrogatories, and affidavits showed that in August, 1967, it was discovered by an official of plaintiff corporation that an unknown person or persons removed a substantial amount of copper flashing from the roof of plaintiff's buildings. The flashing was embedded through the walls of the buildings and permanently affixed to the roof. The portions removed caused other damage to the walls. Evidence was also submitted that the flashing was removed by cutting and/or physically tearing the flashing from the buildings. The loss was reported to the local police. Except for small pieces left at the scene, the flashing removed has never been recovered. Defendants deny liability on the basis that both insurance policies expressly exclude under the vandalism and malicious mischief provision loss by theft. The policies which are attached to the complaint read in pertinent part as follows: "Loss by vandalism or malicious mischief shall mean only the wilful and malicious damage to or destruction of the property covered. This company shall not be liable, as respects this peril, for any loss: . . . 2. by pilferage, theft, burglary or larceny, except for wilful damage to the building(s) covered hereunder caused by burglars."
"Provisions Applicable Only to Vandalism and Malicious Mischief: The terms 'vandalism' and 'malicious mischief' as used herein mean only wilful and malicious damage to or destruction of the property covered hereunder . . . 2. This Company shall not be liable for loss--(b) by pilferage, theft, burglary or larceny, except that this company shall be liable for wilful damage to the building(s) covered hereunder caused by burglars."
1. The main question presented is whether the damage claimed was covered by the insurance contracts. Plaintiff argues that he is suing for the wilful and malicious damage to the flashing and the buildings and not solely for the theft or removal of the flashing. Defendants contend that the loss is an act of theft or vandalism in the course of theft which is expressly excluded under the vandalism coverage of the policies.
The exclusionary provisions were inserted for a purpose and, by their plain and unambiguous language, the purpose was to exclude loss by injury to or destruction to the insured premises by theft or occurring in connection with theft. While we recognize that the cutting and tearing away of the copper flashing may have caused other damage to the buildings, if the event that inflicted the damage is excluded by the express terms of the policies, there can be no recovery. Both sides rely upon the decision of this court in Theo v. Nat. Union Fire Ins. Co., 99 Ga. App. 342 (109 SE2d 53)
. This case involved a vandalism clause and an exclusion clause similar to the ones considered here. In Theo, plaintiff sought recovery for the loss of plumbing fixtures and other personal property stolen from within an insured house by burglars or thieves. The court held that recovery for these items was excluded by the provisions of that policy. That decision, while factually different, is consistent with our determination in this instance that if injury to the premises occurred incident to a theft, the loss is clearly not covered. Plaintiff places reliance on a special concurrence in the Theo case which is, of course, not binding as precedent. All other cases cited by plaintiff from this and other jurisdictions concern policy provisions and facts which are clearly distinguishable from the case at bar.
2. Plaintiff contends that defendants have not sustained their burden of establishing their defense under an exclusion to the policy. American Fire &c. Co. v. Barfield, 81 Ga. App. 887
, 892 (60 SE2d 383
); Livaditis v. American Cas. Co., 117 Ga. App. 297
, 300 (160 SE2d 449
). On summary judgment the burden of proof is on the movant to establish a lack of genuine issue of material fact and a right to judgment as a matter of law. International Brotherhood v. Newman, 116 Ga. App. 590
, 592 (158 SE2d 298
); Chapman v. Turnbull Elevator, Inc., 116 Ga. App. 661
, 666 (158 SE2d 438
); Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205 (1) (163 SE2d 256)
. The defendants have met their burden. The uncontradicted evidence considered at the hearing on the motions for summary judgment showed that a substantial amount of copper flashing was wilfully and maliciously cut and torn away from plaintiff's buildings in which it was embedded and completely removed from the premises. The loss was reported to the police and none of the flashing carried away was ever recovered. Also the evidence shows that the copper flashing had value as scrap metal. While this evidence is circumstantial, the only conclusion that can be drawn from these facts is that the carrying away of this property was an act of theft. Therefore a finding is demanded that the vandalism loss complained of was caused by theft. Consequently there is no genuine issue of material fact, and the defendants not being liable under the policies are entitled to judgment as a matter of law.
3. Defendants' other enumerations of error are rendered moot by our holdings in Divisions 1 and 2 of this opinion.
Judgment reversed with direction that judgment by entered for the defendants. Eberhardt and Deen, JJ., concur.