What’s a “Personal Tort?”
A plaintiff appealed a trial court’s dismissal of her lawsuit against an insurance company. She’d previously sued the store owner in a separate lawsuit, which resulted in a consent judgment. As part of the consent judgment, the store owner assigned all of its claims against an insurance broker to the plaintiff. The plaintiff then filed the instant lawsuit against the insurance broker. It moved to dismiss the lawsuit, arguing that the claims raised against it were personal tort claims, which could not be assigned to the plaintiff. The trial court dismissed the lawsuit.
Background
In August 2019, the plaintiff’s husband was shot and killed while at a store. The plaintiff filed a premises liability lawsuit against the store owner in 2021 in the State Court of DeKalb County. The insurance broker assisted the store owner in getting an insurance policy through the insurance company.
In 2021, the insurance company filed a declaratory judgment action in the U.S. District Court for the Northern District of Georgia, seeking a ruling that the store owner ’s insurance policy did not provide liability coverage to the store owner for the plaintiff’s claims against it in the DeKalb County case.
The policy issued to the insurance broker included coverage exclusions for liability arising out of bodily injury caused by assault, battery, or the use of firearms.
The District Court ruled that the store owner’s insurance policy excluded coverage for the plaintiff’s claims. The plaintiff and the store owner then entered into a consent judgment in the DeKalb County case in favor of the plaintiff in the amount of $1,000,000. The store owner also assigned all of its claims against the insurance company to the plaintiff.
The plaintiff then filed this lawsuit against the insurance company in the State Court of Gwinnett County. Her complaint asserted claims for negligence and breach of fiduciary duty, based on the insurance company’s failure to obtain a general liability policy for the store owner that didn’t exclude coverage for liability arising out of bodily injury caused by assault, battery, or the use of firearms, as well as claims for punitive damages and litigation expenses. The insurance company moved to dismiss the complaint for failure to state a claim, arguing that the claims asserted against the insurance company were personal torts that the store owner could not assign to the plaintiff according to O.C.G.A. § 44-12-24. The trial court granted the insurance company’s motion and dismissed the plaintiff’s complaint with prejudice. This appeal followed.
Court of Appeals Reverses
The plaintiff argued that the trial court erred in dismissing her claims against the insurance company because the claims were not unassignable personal tort claims.
Judge J. Wade Padgett of the Georgia Court of Appeals write that O.C.G.A. § 44-12-24 says that “a right of action is assignable if it involves, directly or indirectly, a right of property, but a right of action for personal torts, for legal malpractice, or for injuries arising from fraud to the assignor may not be assigned.” the plaintiff’s complaint asserts claims for “negligence” and “breach of fiduciary duty.”
These claims advanced — in essence — that the insurance company negligently procured insurance or breached a fiduciary duty to procure appropriate insurance for the store owner. Judge Padgett note that Georgia courts haven’t yet directly addressed whether these claims sound in personal or property tort. Here, the Court of Appeals concluded that they sound in property tort and, thus, are assignable.
“Personal torts” are torts involving an injury to the person, to the reputation, or to feelings, as distinguished from an injury or damage to real or personal property, which is “a property tort.” Judge Padgett wrote that the Supreme Court determined that “injuries done to the person” included “all actionable injuries to the individual himself,” including “physical and bodily injury, injury to the reputation, false imprisonment, malicious arrest, and injury to one’s health, in contrast to injury done to the person’s property.”
Here, the complaint didn’t allege that the insurance company injured the store owner personally. Instead, the complaint alleged that the store owner suffered pecuniary loss due to the insurance company’s failure to secure an appropriate insurance policy for the store owner. As a consequence, the claims for negligence and breach of fiduciary duty were assignable to the plaintiff.
The judge cited a 1997 decision that held that the assignment of an insured’s tort claim for bad faith failure to settle sounds in tort and involves, at least in part, a claim that the insurer’s conduct exposed the insured’s personal property to loss, and was therefore assignable under O.C.G.A. § 44-12-24.
Judge Padgett and the Court of Appeals rejected the insurance company’s argument that this result would cause O.C.G.A. § 44-12-24’s bar on assigning personal torts to “collapse, because nearly every tort results in an injury that can be compensated by money damages.” Moreover, the insurance company’s argument confused the injury with the remedy, the judge opined.
A personal tort involves an injury to the person. O.C.G.A. § 51-12-4 states that the injury itself is distinguishable from money damages, which “are given as compensation for injury” and “generally, such compensation is the measure of damages where an injury is of a character capable of being estimated in money.” The injury suffered allegedly by the plaintiff—as the store owner ’s assignee—was that the store owner didn’t have appropriate insurance coverage for the incident involving the plaintiff’s husband.
Accordingly, the Court of Appeals reversed the trial court’s order dismissing the plaintiff’s claims for negligence, breach of fiduciary duty, and expenses of litigation. Plummer v. Commercial Ins. Agency, Inc., 2026 Ga. App. LEXIS 234 , 2026 LX 268035, 2026 WL 1294443 (Ga. App. May 12, 2026)
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