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)

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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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