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

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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.

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