GREAT LAKES REINSURANCE (UK) SE v. QUEEN

Filing 15

ORDER granting 10 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 1/23/2017. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
GREAT LAKES INSURANCE SE,
formerly known as Great Lakes
Reinsurance (UK) SE,

*
*

Plaintiff,

*

vs.
CHARLES QUEEN,

CASE NO. 3:15-CV-123 (CDL)

*
*

Defendant.

*
O R D E R

Defendant

Charles

Queen

was

insured

under

a

homeowners

insurance policy issued by Plaintiff Great Lakes Insurance SE.
One of Queen’s outbuildings was destroyed in a fire, and Queen
made a claim under the policy to recover for the damage to the
contents of that building.

When Great Lakes investigated the

claim, it discovered that Queen’s home was on an eight acre
parcel.

Queen’s

application

for

the

insurance,

which

was

completed by his independent agent but signed by him, indicates
a response of “no” to a question that specifically asked whether
the property to be insured was on more than five acres.
Lakes

submitted

an

uncontroverted

affidavit

that

the

Great
policy

would never have been issued had that question been answered
“yes.”
the

Based on the present record and applicable Georgia law,

Court

can

only

conclude

that

Queen

made

a

material

misrepresentation
Accordingly,

his

on

the

policy

application

may

be

through

rescinded

even

his

agent.

though

Queen

thought he was only insuring his house and the outbuilding that
sat on less than five acres of his entire eight acre parcel.
Great Lakes’s motion for summary judgment on its declaratory
relief claim (ECF No. 10) is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

In determining whether a

genuine

Fed. R.

dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
Viewed in the light most favorable to Queen, the record
reveals the following.
Queen owns the property located at 1213 Old Monroe Madison
Highway in Monroe, Georgia.

His mother previously owned the

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property, which was

divided into four tracts.

When Queen’s

mother died, Queen inherited tracts 3 and 4, and Queen and his
sister jointly inherited tracts 1 and 2.

Queen’s sister later

deeded Queen her interest in tracts 1 and 2; Queen now owns the
entire parcel located at 1213 Old Monroe Madison Highway.

The

parcel is approximately 8.2 acres.
After Queen became the owner of the property located at
1213 Old Monroe Madison Highway, he sought insurance coverage.
He retained Mike Sorrells, an independent insurance agent with
Alfa

Agency,

to

procure

homeowners

insurance.

Queen

told

Sorrells that he wanted to insure the dwelling and outbuilding
on one of the tracts within the entire parcel at 1213 Old Monroe
Madison

Highway.

That

particular

tract

was

less

than

five

acres.

Queen “was aware that if he sought coverage for the

entirety of his property, he would have been required to pay an
additional premium and procure a different type of insurance
coverage.”

Pl.’s Mot. for Summ. J. Ex. 6, Letter from Eric

Miller to Ann Kirk (Oct. 29, 2015), ECF No. 10-8.
Sorrells completed an insurance application on behalf of
Queen.

The application states that the “location address” is

1213 Old Monroe Madison, Monroe Georgia.

Pl.’s Mot. for Summ.

J. Ex. 5, Personal Prop. Application 1, ECF No. 10-7.

The

application does not indicate that coverage is only sought for a
certain

tract

within

the

parcel

3

located

at

1213

Old

Monroe

Madison Highway.

See generally id.

The application asks: “Is

the property situated on more than five acres?”
Sorrells

checked

“no.”

Id.

Queen

signed

the

Id. at 2.
application,

stating that he had reviewed the application and declaring that
the statements in the application were true, to the best of his
knowledge.

Id.

Southern

Insurance

Underwriters,

Inc.

acts

as

managing

general agent for Great Lakes and issues policies on behalf of
Great

Lakes

Southern

pursuant

Insurance

to

relied

certain
on

Queen’s

underwriting
application

guidelines.
in

whether to issue Queen a policy and on what terms.

deciding

Pl.’s Mot.

for Summ. J. Ex. 7, Brennan Aff. ¶ 10, ECF No. 10-9.

Southern

Insurance also relied on the information provided in Queen’s
application in deciding whether to renew Queen’s policy.
Lakes

submitted

uncontroverted

evidence

that

if

Great

Queen

had

disclosed that the insured location was more than five acres,
Southern Insurance “could not have originally issued the Policy
or continued coverage under the Policy.”
Southern

Insurance

“would

have

offered

different

coverage,

charged

or

different insurance carrier.”

Id. ¶ 11.
a

written

Id. ¶ 12.

Instead,

different

premium,

coverage

under

a

Queen presented no

evidence to contradict this assertion.
The policy issued by Great Lakes to Queen states that the
“insurance applies to the Described Location” and states that

4

the

“Insured

Location”

is

“SAME

AS

ABOVE”—meaning

address of 1213 Old Monroe Madison Highway.

Queen’s

Pl.’s Mot. for

Summ. J. Ex. 8, Certificate of Ins. 1, ECF No. 10-10 at 2.
Queen does not dispute that the property identified by this
address exceeds five acres.

The policy states that it “will be

voidable if . . . any ‘insured’, their agent or their broker
. . . intentionally conceals or misrepresents any material fact
or circumstance . . . relating to the insurance provided under
any part of this policy.”
During

the

coverage

Id. at 14, ECF No. 10-10 at 15.
period,

a

shed

on

Queen’s

property

caught fire, and the contents of the shed were destroyed.

Queen

claims that the destroyed personal property was worth $120,000.
This shed is near Queen’s house, and the house and shed both sit
on a tract that is less than five acres.

But when that tract is

combined with adjacent tracts owned by Queen, which have the
same address as the tract upon which the house and outbuilding
sit, the total acreage associated with the insured “address”
exceeds five acres.

Queen submitted a claim to Great Lakes.

While investigating the claim, Great Lakes discovered that the
parcel located at 1213 Old Monroe Madison Highway is greater
than five acres.

Based on that discovery, Great Lakes concluded

that

made

Queen

had

a

material

misrepresentation

insurance application and rescinded the policy.

in

his

Great Lakes

tendered to Queen a refund of all the premiums he had paid for

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the policy.

Queen continued to seek payment under the policy,

and Great Lakes filed this action, seeking a declaration that it
properly rescinded the policy and thus has no obligation under
the policy.
DISCUSSION
To

void

demonstrate

Queen’s

both

that

insurance
[Queen]

policy,

made

Great

false

Lakes

“must

representations

and

that the misrepresentations were material from the view of a
prudent insurer.”

Lively v. S. Heritage Ins. Co., 568 S.E.2d

98, 100 (Ga. Ct. App. 2002).

Queen contends that questions of

fact exist for a jury to decide and that summary judgment is
thus improper.
position.

Queen makes two arguments in support of this
First,

misrepresentation

in

he
his

contends
insurance

that

there

application.

was

no

Second,

he

argues that even if there was a misrepresentation, it was not
material.
I.

Was There a Misrepresentation in Queen’s Application?
Queen’s

main

argument

is

that

he

did

misrepresentation in his insurance application.

not

make

a

Queen contends

that the insurance application is ambiguous in asking whether
“the

property”

is

situated

on

more

than

five

argues that a jury must resolve this issue.

acres.

Queen

He asserts that

“the property” could be construed to be on fewer than five acres
because he only intended to insure one of the tracts located on

6

the

parcel

at

1213

Old

Monroe

Madison

Highway;

if

the

application question is construed this way, then he did not make
a misrepresentation.
Construction of an insurance contract (or application) is
generally a question of law for the Court.

Nationwide Mut. Fire

Ins. Co. v. Somers, 591 S.E.2d 430, 433 (Ga. Ct. App. 2003).

If

the terms are unambiguous, then the insurance provision must be
enforced as written.

Great Lakes Reinsurance (UK) PLC v. Kan-

Do, Inc., 639 F. App'x 599, 602 (11th Cir. 2016) (per curiam).
“Ambiguity exists in an insurance policy when its terms are
susceptible to different reasonable interpretations.”
603.

Id. at

Here, the Court finds that even though Queen may not have

fully understood the question in the application, it is not
ambiguous.
The application asks if “the property” is situated on more
than five acres.

Though “the property” is not defined, its

plain meaning is the property for which coverage is sought based
on the face of the application.
“location

address”

of

the

The application also asks for a

property

to

be

insured.

Queen’s

application states that the “location address” for the property
to

be

insured

Georgia.

is

1213

Old

Monroe

Personal Prop. Application 1.

Madison

Highway,

Monroe

The undisputed evidence

in the present record indicates that the property associated
with

this

insured

location

address

7

exceeded

five

acres.

Whatever

Queen

subjectively

believed

about

his

request

for

insurance coverage, nothing in his application communicates that
he sought to procure insurance only for a certain tract within
the parcel at 1213 Old Monroe Madison Highway.

Rather, the

application on its face unambiguously seeks coverage for the
property located at 1213 Old Monroe Madison.

And that is how

the policy was issued; the insured location is 1213 Old Monroe
Madison Highway, which is approximately 8.2 acres.

Thus, it was

a misrepresentation to state that the property was not situated
on more than five acres.

The fact that Queen may have had no

intention to mislead anyone has no legal significance in the
present context, which the Court finds to be a bit harsh but the
law.
II.

Was the Misrepresentation Material?
Queen contends that even if there was a misrepresentation

about the acreage of 1213 Old Monroe Madison Highway, it was not
a

material

misrepresentation.

insurance

application

insurance

policy

“shall

unless

it

A

misrepresentation

not

prevent

recovery”

is

“[m]aterial

either

in

an

under

an

to

the

acceptance of the risk or to the hazard assumed by the insurer”
or “[t]he insurer in good faith would either not have issued the
policy or contract or would not have issued a policy or contract
in as large an amount or at the premium rate as applied for or
would not have provided coverage with respect to the hazard

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resulting in the loss if the true facts had been known to the
insurer as required either by the application for the policy or
contract or otherwise.”
Great

Lakes

O.C.G.A. § 33-24-7(b).

contends

that

Queen’s

misrepresentation

regarding the number of acres of the location to be insured was
material.
the

In support of this assertion, Great Lakes points to

affidavit

of

Dianne

Brennan,

an

underwriting

manager

at

Southern Insurance, the managing general agent for Great Lakes
with regard to Queen’s policy.

According to Brennan, if Queen

“had disclosed that the Property was greater than five acres,
[Southern Insurance] could not have originally issued the Policy
or continued coverage under the Policy.”

Brennan Aff. ¶ 11.

And if “Queen had disclosed that the Property was greater than
five acres, [Southern Insurance] would have charged a different
premium, offered different coverage, or written coverage under a
different insurance carrier.”

Id. ¶ 12.

Finally, according to

Brennan, Queen’s misrepresentation about the size of the insured
location
risk.”

“changed

the

nature,

extent,

and

character

of

the

Id. ¶ 13.

“Ordinarily

it

is

a

jury

question

as

to

whether

a

misrepresentation is material, but where the evidence excludes
every reasonable inference except that it was material, it is a
question of law for the court.” Taylor v. Ga. Int'l Life Ins.
Co., 427 S.E.2d 833, 834 (Ga. Ct. App. 1993) (quoting Miller v.

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Nationwide Ins. Co., 415 S.E.2d 700, 701 (Ga. Ct. App. 1992)).
In Taylor, for example, the insurance company was entitled to
summary

judgment

on

the

issue

of

materiality

because

the

plaintiff did not refute the insurance company’s evidence that
it would not have issued a life insurance policy to the insured
had she disclosed her history of heart disease.

Id. at 834-35.

Here, Brennan’s affidavit is not particularly persuasive as
to

why

the

difference

additional

from

an

three

acres

underwriting

would

increased

have
risk

made

much

perspective.

Great Lakes knew it was insuring the building that contained the
contents that were damaged.

That building, along with Queen’s

house, sat on less than five acres.

Had Queen produced an

affidavit from a qualified person that contradicted the Brennan
affidavit, it is likely that a genuine dispute would have been
created and summary judgment avoided.

Cf. Lively, 568 S.E.2d at

100 (reversing summary judgment against insured because insured
presented expert testimony that the insured’s misrepresentations
would not automatically preclude a prudent insurer from issuing
the policy as written).

But Queen submitted no such affidavit

or other evidence on materiality.
suggesting

that

Southern

He

Insurance

presented no

did

not

rely

evidence
on

his

application in determining the terms of his policy, and he did
not

present

any

evidence

that

10

a

prudent

insurer

would

have

issued the policy even if it had known of the misrepresentation.
Brennan’s affidavit was essentially uncontested.
The Georgia courts generally find that summary judgment may
be granted on the materiality issue based on the uncontroverted
affidavit of an insurance company’s representative establishing
that the policy would not have been written as issued had the
insurance company known of the misrepresentation.

See, e.g.,

T.J. Blake Trucking, Inc. v. Alea London, Ltd., 643 S.E.2d 762,
762-63 (Ga. Ct. App. 2007) (finding, based on an uncontroverted
affidavit, that

the

insurer would not have issued the truck

insurance policy as written had the insured disclosed that one
of her dump truck drivers had a number of driving violations,
including

a

suspended

license

and

several

reckless

driving

charges); Graphic Arts Mut. Ins. Co. v. Pritchett, 469 S.E.2d
199, 202 (Ga. Ct. App. 1995) (approving summary judgment in
favor of insurer where insurer presented uncontroverted evidence
that under its underwriting guidelines, the insurer would not
have issued a policy to an applicant who failed to disclose that
two other insurers had canceled the applicant’s policies); Davis
v. John Hancock Mut. Life Ins. Co., 413 S.E.2d 224, 226 (Ga. Ct.
App.

1991)

(affirming

summary

judgment

where

the

insurer

presented uncontroverted evidence that it would not have issued
the insured’s life insurance policy had she disclosed that she
suffered from incurable leukemia).

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But see Case v. RGA Ins.

Servs., 521 S.E.2d 32, 34 (Ga. Ct. App. 1999) (reversing summary
judgment in part because the only evidence on materiality was an
expert underwriter’s opinion testimony that the company would
not

have

driving

issued
history

suggesting

that

the

policy

and
the

in

had

part

insurance

insured’s application).

it

known

because
company

the

insured’s

there
did

was

not

true

evidence

rely

on

the

Without some evidence from Queen to

create a genuine fact dispute on the issue of materiality, Great
Lakes is entitled to summary judgment on this issue.
CONCLUSION
In

summary,

based

on

the

present

record,

there

is

no

genuine fact dispute that Queen, through his agent Sorrells,
misrepresented

the

size

insurance application.
that

the

of

the

insured

location

in

Queen’s

There is also no genuine fact dispute

misrepresentation

was

material.

Lakes was entitled to rescind the policy.

Accordingly,

Great

Great Lakes’s summary

judgment motion (ECF No. 10) is therefore granted.
IT IS SO ORDERED, this 23rd day of January, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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