NATIONWIDE MUTUAL INSURANCE COMPANY v. BELLS FOOD MARKET et al
Filing
36
ORDER denying 22 Motion for Default Judgment; denying 23 Motion for Summary Judgment; finding as moot 33 Motion for Leave to File. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/01/2017. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
NATIONWIDE MUTUAL INSURANCE
COMPANY,
*
*
Plaintiff,
*
vs.
CASE NO. 3:17-CV-4 (CDL)
*
BELL’S FOOD MARKET and JAMES
FAYNE EDWARDS,
*
Defendants.
*
O R D E R
Defendant James Edwards tripped over a freeze-pop display
at Defendant Bell’s Food Market.
He fell and broke his hip.
Bell’s liability insurance carrier, Plaintiff Nationwide Mutual
Insurance Company, does not want to defend Mr. Edwards’s claim
against Bell’s or pay the claim if Bell’s is found liable to Mr.
Edwards.
action
Nationwide
claiming
that
therefore
no
filed
coverage
a
exists
declaratory
under
its
policy because it received late notice of the claim.
pending
before
the
Court
is
Nationwide’s
motion
judgment
insurance
Presently
for
summary
judgment.
Viewed in the light most favorable to Bell’s, the present
record
establishes
that
Mr.
Edwards
refused
to
help
store
employees complete an incident report; was adamant that the fall
was his fault; and told Bell’s managers that he would not make a
claim against Bell’s.
Mr. Edwards’s son, a Bell’s employee,
later confirmed to Bell’s managers that Mr. Edwards did not
intend
to
make
a
claim
against
Bell’s.
Months
later,
Mr.
Edwards changed his mind and decided to make a claim against
Bell’s.
At that time, Bell’s notified its insurance agent of
the incident.
Bell’s
was
insured
under
policy issued by Nationwide.
duty
to
notify
Nationwide
a
commercial
lines
insurance
Under the policy, Bell’s had a
as
soon
as
occurrence that may result in a claim.
practicable
of
an
Under Georgia law, in
most cases, “the reasonableness of a failure to give notice is a
question for the finder of fact.”
Cas.
Co.,
711
S.E.2d
28,
31
(Ga.
Forshee v. Employers Mut.
Ct.
App.
2011);
accord
Plantation Pipeline Co. v. Royal Indem. Co., 537 S.E.2d 165, 167
(Ga.
Ct.
incident
App.
will
2000).
determine
The
nature
whether
an
and
circumstances
insured
is
justified
failing to notify the insurer of a potential claim.
711 S.E.2d at 31.
of
the
in
Forshee,
“Relevant circumstances include the nature of
the event, the extent to which it would appear to a reasonable
person in the
property
damage
circumstances of the insured that injuries or
resulted
from
the
event,
severity of any such injuries or damage.”
and
Id.
the
apparent
“A court also
properly may consider whether anyone gave an indication that he
2
intended
to
hold
the
insured
resulting injuries . . . .”
responsible
for
the
event
and
Id.
Based on the record viewed in the light most favorable to
Bell’s—as the Court must view the record at this stage in the
litigation—there
is
a
jury
question
on
whether
Bell’s
unreasonably delayed giving Nationwide notice of Mr. Edwards’s
potential claim.1
Nationwide’s summary judgment motion (ECF No.
23) is thus denied.2
IT IS SO ORDERED, this 1st day of September, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
1
The Court considered the cases Nationwide cited in its brief,
including Brit UW Ltd. v. Hallister Property Development, LLC, 6 F.
Supp. 3d 1321 (N.D. Ga. 2014). Brit, which is not binding precedent,
is distinguishable from this case because the insured in Brit merely
assumed that the injured person would not bring a claim. In contrast,
here, the evidence viewed in the light most favorable to Bell’s
suggests that the injured party affirmatively, unequivocally, and
repeatedly stated that the fall was his fault and that he did not
intend to bring a claim against Bell’s.
2
Nationwide’s Motion for Default Judgment as to Defendant James
Edwards (ECF No. 22) is denied without prejudice at this time. Bell’s
motion for leave to file a sur-reply in opposition to summary judgment
(ECF No. 33) is denied as moot.
3
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