GRANGE INSURANCE COMPANY v. MARTIN et al

Filing 35

ORDER granting 29 Defendant's Motion for Summary Judgment in part and Dismissing without prejudice in part. The Clerk is directed to enter judgment and close the case. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 9/24/2024 (TES)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
GRANGE INSURANCE COMPANY,
Plaintiff,
CIVIL ACTION NO.
3:23-cv-00145-TES

v.
MARK MARTIN, et al.,
Defendants.

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT IN PART

This insurance coverage dispute arises out of an underlying personal injury
action1 brought by Maria O. Harris against Classic City Clydesdales, LLC (“Classic
City”), and Shannon Martin. See [Doc. 1-1]. The underlying complaint alleges that while
Ms. Harris was employed as a stable hand at Classic City, a family-owned horse farm
managed by Shannon and Mark Martin, she sustained an injury negligently caused by a
coworker and exacerbated by the actions of Mrs. Martin. See [id.]. Plaintiff Grange
Insurance Company agreed to defend Mrs. Martin and Classic City under a reservation
of its rights and then filed this action seeking a declaration that it has no duty to defend

Maria O. Harris v. Classic City Clydesdales, LLC, and Shannon Martin, No. SUCV2023000321, Superior
Court of Oconee County. Filed on October 10, 2023, the underlying complaint asserts four causes of
action: negligence and infliction of emotional distress (negligent and intentional) against Shannon Martin
and Classic City; and negligence per-se and negligent supervision and training against Classic City. See
[Doc. 1-1, ¶ 47].
1

either party. See [Doc. 29, pp. 1–3]; see generally [Doc. 1]. Having completed limited
discovery, Grange now moves for summary judgment, asking the Court to declare that
it has no duty to defend or indemnify Classic City or Shannon Martin in the underlying
action as a matter of law. See [Doc. 29]. For the reasons explained in further detail
below, the Court GRANTS Grange’s Motion for Summary Judgment [Doc. 29] in part,
DECLARES that Grange has no duty to defend Classic City or Shannon Martin in the
underlying action, and DISMISSES the portion of Grange’s case relating to its potential
duty to indemnify because, as explained below, it isn’t yet ripe.
BACKGROUND
A.

The Insurance Policy

At all times relevant to this action, Mark Martin had a farmowner insurance
policy issued by Grange, Policy No. FO 2770483 (the “Policy”), in connection with his
ownership of livestock and specialty animals. See [Doc. 1-2]; [Doc. 31-1, M. Martin Decl.,
¶ 7]. Three sections of the Policy are relevant to this Order: the Farm Liability Coverage
Form, the Declarations, and the Farm Employers Liability and Medical Payments
Endorsement (“the Endorsement”). [Doc. 1-2, pp. 1, 5–8, 25–38].
First, after cautioning the reader to review the entire Policy carefully, the
preamble to the Farm Liability Coverage Form defined “you” and “your” as those
words are used throughout the Policy:

2

Various provisions in this policy restrict coverage. Read the
entire policy carefully to determine your rights, duties and
what is and is not covered.
Throughout this policy, the words “you” and “your” refer to
the Named Insured shown in the Declarations. The words
“we”, “us” and “our” refer to [Grange Insurance Company].
[Id. at p. 25]. The Declarations identified the named insured as “Mark Martin,” an
“individual” in the business of “livestock/specialty animals.” [Id. at p. 1].
The Farm Liability Coverage Form generally excluded employees’ injuries from
coverage, stating that “[t]his insurance does not apply to” most injuries “sustained by
. . . [a]ny employee . . . as a result of his or her employment by the ‘insured.’” [Id. at pp.
25, 28]. The Endorsement filled that gap, providing coverage for accidental injuries to
farm employees, and defines who is an “insured” for the purposes of this case:2
SECTION II—WHO IS AN INSURED
1. If this endorsement is made part of a policy containing the
Farm Liability Coverage Form, Definition 8. (Section IV)
of that Coverage Form does not apply to the insurance
afforded under this endorsement.
...
3. With respect to the insurance afforded under this
endorsement, the following applies:
a. An individual, you are an insured, and, if they are
members of your household, your spouse, and your
In its Motion, Grange relies on the definition of “insured” found in the Farm Liability Coverage Form to
argue that Classic City is not covered by the Policy. See [Doc. 29, p. 14]; [Doc. 1-2, p. 35]. However,
Defendants point out in their Response that because the Endorsement was “made a part of a policy
containing the Farm Liability Coverage Form,” the definition of “insured” in “[the Farm Liability]
Coverage Form does not apply to the insurance afforded under [the Endorsement].” [Doc. 31, pp. 2, 19].
In its Reply, Grange appears to concede that the Endorsement’s definition of “insured” supplants the
definition Grange relied upon in its Motion. See [Doc. 33, p. 7].
2

3

spouse’s relatives who are under the age of 21 are also
insureds.
b. A partnership or joint venture, you are insured. Your
members and partners, and their spouses are also
insureds, but only with respect to the conduct of your
“farming” operations.
c. An organization other than a partnership or joint
venture, you are an insured. Your executive officers
and directors are insureds, but only with respect to
their duties as your officers or directors. Your
stockholders are also insureds, but only with respect to
their liability as stockholders.
No person or organization is an insured with respect to the
conduct of any current or past partnership or joint venture
that is not shown as a Named Insured in the Declarations.
[Id. at p. 7]. The Endorsement’s definition of “insured” applies in this case, which
appears to be undisputed. See supra note 2. However, in construing the Endorsement’s
definition of “insured,” this Order also examines the Farm Liability Coverage Form’s
definition:
8. “Insured”
a. “Insured” means you, and if you are:
(1) An individual, “insured” also means the following
members of your household:
(a) Your relatives;
(b) Any other person under the age of 21 who is in
the care of any person specified above;
(2) A partnership or joint venture, “insured” also
means your members and your partners and their
spouses, but only with respect to the conduct of
your “farmer” operations;
(3) An organization other than a partnership or joint
venture, “insured” also means:
(a) Your executive officers and directors, but only
with respect to their duties as your officers and
directors; and
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(b) Your stockholders, but only with respect to their
liability as stockholders.
No person or organization is an insured with respect to the
conduct of any current or past partnership or joint venture
that is not shown as a Named Insured in the Declarations.
[Doc. 1-2, p. 35]. The Farm Liability Coverage Form also contained a notice provision:
2. DUTIES IN THE EVENT OF OCCURRENCE,
OFFENSE, CLAIM OR SUIT
a. You must see to it that we are notified as soon as
practicable of an “occurrence” or an offense which may
result in a claim. To the extent possible, notice should
include:
(1) How, when, and where the “occurrence” or offense
took place;
(2) The names and addresses of any injured persons
and witnesses; and
(3) The nature and location of any injury or damage
arising out of the “occurrence” or offense.
[Id. at p. 33]; see [Doc. 1-2, p. 37 (defining “occurrence”)].
B.

The Underlying Complaint

In the underlying complaint, Mrs. Harris claims that Classic City’s barn manager
hired her as a stable hand. [Doc. 1-1, ¶ 11]. Her duties required her to operate
equipment including a “Gator,” an all-terrain vehicle used for various tasks around the
farm. [Id. at ¶ 13]. She claims she did not receive any formal training from Classic City
or its management on how to operate this machinery. [Id. at ¶ 19].
The underlying complaint states that on October 19, 2021, as Ms. Harris and her
co-workers, Logan and Emily, were wrapping up their duties for the day, they
attempted to start the Gator’s engine to store it in the garage, but the engine failed. [Id.
5

at ¶¶ 21, 24]. Logan and Emily decided to use Logan’s truck to tow the Gator to the
barn garage and instructed Ms. Harris to hold a metal carabiner attached to a tow winch
attached to the front of the Gator. [Id. at ¶¶ 24–25, 27]. Logan then operated the winch
controls, intending to unspool the winch cable, but pressed the wrong button, causing
the winch cable to retract. [Id. at ¶¶ 28–29]. The cable pulled Ms. Harris’s hand into the
winch mechanism, injuring Ms. Harris’s index and middle fingers. [Id. at ¶¶ 29–31].
When Ms. Harris freed her hand from the winch, her fingers were nearly completely
severed, “dangling,” “barely connected to her hand by a few ligaments and tendons,”
and bleeding profusely. [Id. at ¶¶ 31–32].
The underlying complaint further alleges that following the incident, Logan
called 911 for an ambulance, but Mrs. Martin intervened, instructing him to cancel the
request. [Id. at ¶¶ 33–34]. Mrs. Martin “stated that she didn’t think that [Ms.] Harris
would agree to pay for the cost of the ambulance service” and told Ms. Harris she
would drive her to an urgent care center instead, even though Ms. Harris “responded
that her mother would pay for the cost of any ambulance transportation to the
hospital.” [Id. at ¶ 35].
According to the underlying complaint, Mrs. Martin first drove Ms. Harris to her
home to change shoes before heading to the hospital. [Id. at ¶ 35]. As they were finally
leaving for the hospital, an ambulance arrived at the property, and Mrs. Martin
allegedly called her husband, instructing him to turn off the lights so that the
6

ambulance wouldn’t know where to go. [Id. at ¶ 38]. Ms. Harris further claims that once
they arrived at St. Mary’s hospital, Mrs. Martin downplayed the severity of her injuries
to the medical staff, further delaying treatment. [Id. at ¶¶ 39–41].
Ms. Harris underwent surgery to reattach her fingers, but complications led to
the partial amputation of her fingers. [Id. at ¶¶ 43–44]. She claims to have suffered
significant physical and emotional pain, as well as financial burdens due to her medical
expenses. [Id. at ¶¶ 45–46].
LEGAL STANDARD
Summary judgment is proper “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.” Fed. R. Civ. P. 56(a). As to issues for which the movant would bear the burden of
proof at trial, the “movant must affirmatively show the absence of a genuine issue of
material fact[] and support its motion with credible evidence demonstrating that no
reasonable jury could find for the non-moving party on all of the essential elements of
its case.” Landolfi v. City of Melbourne, 515 F. App’x 832, 834 (11th Cir. 2013) (citing
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)).
As to issues for which the non-movant would bear the burden of proof at trial,
the movant may either (1) point out an absence of evidence to support the nonmovant’s case or (2) provide “affirmative evidence demonstrating that the [nonmovant] will be unable to prove its case at trial.” United States v. Four Parcels of Real
7

Prop. in Greene & Tuscaloosa Cntys., 941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 331 (1986)). If the movant satisfies its burden, the burden
shifts to the non-movant, who must “go beyond the pleadings[] and present affirmative
evidence to show that a genuine issue of material fact exists.” Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006) (citing Fitzpatrick, 2 F.3d at 1115–17).
“A factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the [non-moving] party.’” Four Parcels, 941 F.2d at 1438 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be enough of a
showing that the jury could reasonably find for that party.” Brooks v. Cnty. Comm’n of
Jefferson Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006).
In considering a motion for summary judgment, courts must accept the evidence
presented by the non-movant as true and draw all justifiable inferences in its favor.
Liberty Lobby, 477 U.S. at 255. However, courts are not required to draw “all possible
inferences” in favor of the nonmovant. Horn v. United Parcel Servs., Inc., 433 F. App’x
788, 796 (11th Cir. 2011). “If the record presents factual issues, the court must not decide
them; it must deny the motion and proceed to trial.” Tullius v. Albright, 240 F.3d 1317,
1320 (11th Cir. 2001).
DISCUSSION
By issuing the Policy, Grange assumed two “separate and independent
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obligations”—a duty to defend and a duty to indemnify. Penn-Am. Ins. Co. v. Disabled
Am. Veterans, Inc., 490 S.E.2d 374, 376 (Ga. 1997) (citation omitted). Grange seeks a
declaration that it has no obligation to discharge those duties as a matter of law because
Classic City does not qualify as an “insured” under the Policy and the Martins didn’t
comply with the Policy’s notice provision, which Grange argues is a condition
precedent to coverage. [Doc. 29, pp. 1–2, Section C]. Defendants, of course, disagree. See
[Doc. 31].
Insurance is a matter of contract in Georgia,3 “and the parties to an insurance
policy are bound by its plain and unambiguous terms.” Richards v. Hanover Ins. Co., 299
S.E.2d 561, 563 (Ga. 1983). So, the Court looks to the Policy to determine Grange’s duties
to defend and indemnify. Loftin v. U.S. Fire Ins. Co., 127 S.E.2d 53, 58 (Ga. Ct. App. 1962);
Yeomans & Assocs. Agency, Inc. v. Bowen Tree Surgeons, Inc., 618 S.E.2d 673, 677–78 (Ga.
Ct. App. 2005) (citation omitted). Generally, an insurer must discharge its duty to
defend unless the underlying complaint’s allegations unambiguously exclude coverage
under the policy. HDI-Gerling Am. Ins. Co. v. Morrison Homes, Inc., 701 F.3d 662, 666
(11th Cir. 2012); Colony Ins. Co. v. Corrosion Control, Inc., 390 F.Supp.2d 1337, 1339 (M.D.
Ga. 2005). Put differently, if the underlying complaint asserts even a single claim that
triggers an insurer’s duty to defend, the insurer is obligated to defend all claims in the

3

It is undisputed that Georgia law governs this dispute.

9

underlying action.
The Court determines Grange’s contractual obligations to Classic City and then
to Shannon Martin, in that order, approaching each issue in two steps. See Fed. R. Civ.
P. 56(a). First, the Court must determine whether any material facts are disputed; and
second, the Court must ascertain whether the underlying complaint triggers Grange’s
duty to defend as a matter of law. See id.
A.

Grange’s Noncompliance with Local Rule 56

First, the Court notes that Grange missed the mark under Local Rule 56 by failing
to attach to its Motion for Summary Judgment a “separate and concise” statement of
undisputed material facts. See [Doc. 29, Section B]; LR 56, MDGa. Under Local Rule 56, a
party moving for summary judgment “shall attach to the motion a separate and concise
statement of the material facts to which the movant contends there is no genuine
dispute to be tried. Each material fact shall be numbered separately and shall be
supported by specific citation to particular parts of materials in the record.” LR 56,
MDGa. The rule also requires the Defendants to attach their own statement of
undisputed material facts to its response and to respond “to each of the movant’s
numbered material facts.” Id.
These requirements help preserve judicial resources by forcing parties to
organize their evidence and focusing the court’s attention on any genuinely disputed
facts. Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (citations omitted). As noted
10

above, the movant has the initial burden to show that there is no genuine dispute of
material fact, and a “separate and concise” statement of facts assists the Court in
determining whether this burden has been met. Landolfi, 515 F. App’x 834 (citing
Fitzpatrick, 2 F.3d at 1115). It also provides the nonmovant with a clear set of facts to
challenge, and without such a statement, the nonmovant may be unfairly
disadvantaged when responding. See Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1260 (11th Cir. 2004) (quoting Celotex, 477 U.S. at 323).
In this case, Grange filed its Motion without a separate statement of undisputed
material facts. See [Doc. 29]. Instead, Grange embedded a list of numbered facts within
its brief under the heading “Statement of Facts.” [Id., Section B]. This put Defendants in
a bit of a pickle, as they were “unsure what they should be responding to,” illustrating
the importance of these requirements. [Doc. 31, pp. 1–2]. In their Response, Defendants
“treat[ed] the ‘Statement of Facts’ in Plaintiff’s Motion for Summary Judgment as the
facts to address.” [Id. at p. 2].
As Defendants noted in their Response, this procedural flaw could be fatal to
Grange’s Motion. [Id. at p. 1 n.1]. Valid local rules “have ‘the force of law,’” and failure
to follow them could result in denial of a motion. Hollingsworth v. Perry, 558 U.S. 183,
191 (2010). On the other hand, the Court has broad discretion to enforce local rules
strictly or to relax them and excuse noncompliance. See Resse, 527 F.3d at 1272 (noting
that the district court had “broad discretion” to “essentially overlook[]” noncompliance
11

with local rules).
Despite this issue, the Court considers the merits of Grange’s Motion for several
reasons. First, although Grange failed to provide a separate statement of undisputed
material facts, the Motion included a numbered list of material facts largely supported
by citations to materials in the record. See [Doc. 29, Section B]. In other words, Grange
didn’t ask the Court to waste its resources organizing the evidence and sifting through
the record in search of material facts. See Reese, 527 F.3d at 1268. Additionally, Grange’s
Motion, while flawed, gave Defendants a clear enough view of the target, and this
procedural hiccup didn’t prevent Defendants from responding adequately. See Hickson
Corp., 357 F.3d at 1260 (quoting Celotex, 477 U.S. at 323). Importantly, Defendants
expressly declined to challenge Grange’s Motion for Summary Judgment on this
procedural ground, choosing to fight instead on the merits. [Doc. 31, p. 1 n.1]. For those
reasons, the Court overlooks this deficiency and construes Section B of Grange’s Motion
as its statement of undisputed material facts. See [Doc. 29, Section B]; LR 56, MDGa.4
B.

Grange’s Duty to Defend Classic City

Grange moves for summary judgment on its duty to defend Classic City on the
grounds that “it does not qualify as an insured under the Policy.” [Doc. 29, p. 2, Section
C.3]. Grange contends that while the Policy covers Mark and Shannon Martin

With all that said, the Court notes that paragraph 10 of Plaintiff’s Statement of Facts is “not supported
by specific citation to particular parts of materials in the record,” so the Court did not consider it. [Doc.
29, p. 7, ¶ 10]; LR 56, MDGa.
4

12

individually, it does not extend to Classic City, a separate legal entity, and thus any
claims related to its operations, such as Ms. Harris’s injury, fall outside the scope of the
Policy’s coverage. [Id. at pp. 14–15]. Defendants argue that the Endorsement is
ambiguous and should be construed in favor of coverage, but they do not dispute any
fact material to Classic City’s coverage status. See [Doc. 31, pp. 16–20]. Thus, the only
question is whether Grange is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a).
Under Georgia law, “[t]he interpretation of an insurance policy is subject to the
relevant general rules of contract construction, the cardinal rule being to determine and
carry out the intent of the parties.” Nat'l Cas. Co. v. Ga. Sch. Bds. Ass’n-Risk Mgmt. Fund,
818 S.E.2d 250, 253 (Ga. 2018) (citation omitted); see O.C.G.A. §§ 13-2-2, -3. In
determining that intent, courts are “to consider the insurance policy as a whole,” and
construe the contract to “give effect to each provision, attempt to harmonize the
provisions with each other, and not render any of the policy provisions meaningless or
mere surplusage.” Nat'l Cas. Co., 818 S.E.2d at 253 (citation omitted). Contract
construction involves three steps: (1) if “the language is clear and unambiguous,” “the
court simply enforces the contract according to its clear terms”; (2) “if the contract is
ambiguous in some respect, the court must apply the rules of contract construction to
resolve the ambiguity”; and (3) “if the ambiguity remains after applying the rules of
construction, the issue of what the ambiguous language means and what the parties
13

intended must be resolved by a jury.” City of Baldwin v. Woodard & Curran, Inc., 743
S.E.2d 381, 389 (Ga. 2013) (citation omitted); see O.C.G.A. § 13-2-1. The meaning of a
“plain and unambiguous” policy is a question of law “and is ‘particularly appropriate
for summary [judgment].’” Sims v. Taylor, 270 F. App’x 940, 944 (11th Cir. 2008) (quoting
Garvin v. Smith, 510 S.E.2d 863, 864 (Ga. Ct. App. 1999)); O.C.G.A. § 13-2-1.
The Endorsement clearly and unambiguously provides coverage for the Martins
and their employees, but it reflects no intent whatsoever to cover Classic City. [Doc. 1-2,
p. 7]; City of Baldwin, 743 S.E.2d at 389 (citation omitted). Again, the Endorsement states
that:
3. With respect to the insurance afforded under this
endorsement, the following applies:
a. An individual, you are an insured, and, if they are
members of your household, your spouse, and your
spouse’s relatives who are under the age of 21 are also
insureds.
b. A partnership or joint venture, you are insured. Your
members and partners, and their spouses are also
insureds, but only with respect to the conduct of your
“farming” operations.
c. An organization other than a partnership or joint
venture, you are an insured. Your executive officers
and directors are insureds, but only with respect to
their duties as your officers or directors. Your
stockholders are also insureds, but only with respect to
their liability as stockholders.
No person or organization is an insured with respect to the
conduct of any current or past partnership or joint venture
that is not shown as a Named Insured in the Declarations.
[Doc. 1-2, p. 7 (emphasis added)]. Reading the Policy as a whole, it is clear that “you” in
14

the Policy means Mark Martin, as the Farm Liability Coverage Form conspicuously
states at the top of the first page that “[t]hroughout this policy, the words ‘you’ and
‘your’ refer to the Named Insured shown in the Declarations,” and the Declarations
clearly identify the named insured as “Mark Martin”—an “individual” in the business
of “livestock/specialty animals.” [Id. at pp. 1, 35]. Thus, it is “clear and unambiguous”
that Mark Martin is an insured as an individual, and Shannon Martin is also an insured
because she is a member of his household. [Id. at p. 7]. Classic City, on the other hand, is
not the named insured, nor does it qualify as an “insured” under the Endorsement’s
plain language. See [id. at pp. 1, 7]. Because the Endorsement is not ambiguous, the
Court must enforce the Policy “according to its clear terms.” City of Baldwin, 743 S.E.2d
at 389 (citation omitted).
Defendants argue that the Endorsement’s definition of “insured” is ambiguous
and “led Mr. Martin to believe that the Policy provided insurance coverage for both
himself and Classic City.” [Doc. 31, p. 19–20]. Specifically, they compare the definitions
in the Endorsement and Farm Liability Coverage Form and claim that the
Endorsement’s omission of two phrases5 creates an ambiguity. [Id. at p. 19]. As a result,
they contend that the Endorsement “lends itself to a reasonable expectation that the

Specifically, Defendants argue that Endorsement omitted “the language of ‘”Insured” means you, and if
you are: . . .”’” and “[t]here is no limiting statement in this provision of the Endorsement stating that the
‘Insured’ means only the Named Insured.” [Doc. 31, p. 19].
5

15

Policy covers Mr. Martin as an individual, and covers any partnership, joint venture, or
organization he may have.” [Id.].
Courts should read the policy “as a layman would read it” and construe
exclusions strictly “against the insurer and in favor of coverage.” Nat'l Cas. Co., 818
S.E.2d at 254 (citation omitted); see Gulf Ins. Co. v. Mathis, 358 S.E.2d 850, 851 (Ga. Ct.
App. 1987). “[I]t is the understanding of the average policyholder which is to be
accepted as a court’s guide to the meaning of words, with the help of the established
rule that ambiguities and uncertainties are to be resolved against the insurance
company.” Fid. Nat’l Title Ins. Co. v. Keyingham Inv., LLC, 702 S.E.2d 851, 853 (2010)
(citations omitted). However, the Court finds the Policy plainly unambiguous, and “the
rule of liberal construction . . . cannot be used to create an ambiguity where none, in
fact, exists.” State Farm Mut. Auto Ins. Co. v. Staton, 685 S.E.2d 263, 266 (2009). When no
such ambiguity exists, “[n]o construction is required or even permissible.” Nguyen v.
Lumbermans Mut. Cas. Co., 583 S.E.2d 220, 223 (Ga. Ct. App. 2003) (citation omitted).
Now, even assuming for the sake of argument that the Endorsement contains
some ambiguity, it is easily resolved by “apply[ing] the rules of contract construction.”
City of Baldwin, 743 S.E.2d at 389 (citation omitted). Considering the Endorsement’s
language in the context of the Policy as a whole (and as explained above), nothing in the
Endorsement changes the fact that “you” in “you are insured” means Mark Martin,
individually. [Doc. 1-2, p. 7]. Defendants have not argued otherwise, nor have they
16

identified any portion of the Policy that uses “you” to refer to anything or anyone but
Mark Martin. See [Doc. 31]. The Endorsement’s grammar and structure also confirm
that the Endorsement has only one plausible meaning.
Grammatically, each section begins with an introductory appositive phrase, set
off by a comma, which specifies the category of named insured to which the section
applies. See O.C.G.A. § 13-2-2(6); Bryan A. Garner, The Chicago Manual of Style § 6.53
(17th ed. 2017); see also Bryan A. Garner, The Redbook: A Manual on Legal Style § 1.5(d)
(4th ed. 2018). Each section introduces its subject with a phrase: “[a]n individual,” “[a]
partnership or joint venture,” and “[a]n organization other than a partnership or joint
venture.” [Doc. 1-2, p. 7]. These phrases function as appositives, as they identify or
describe the entity referred to as “you.” See Garner, Redbook § 11.7(a).
The introductory phrases do not define “you”; instead, they function
conditionally by identifying the category of named insured to which the main clause
applies. In other words, the main clause—“you are insured . . .”—is only valid if the
named insured matches the legal entity—e.g., individual, joint venture, etc.—identified
by the introductory appositive phrase. [Doc. 1-2, pp. 7, 35]. This is clear for two reasons.
First, as already explained, the Policy explicitly states that “[t]hroughout [the Policy] the
words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations,” and the
Declarations identify the named insured as Mark Martin. [Id. at pp. 1, 25]. Second, each
phrase must be read as nonrestrictive because it “is set off from its referent” (here,
17

“you”) by a comma. [Id. at p. 7]. As a nonrestrictive appositive, each phrase “merely
provides additional information about its referent without exclusively identifying it,”
and this does not overcome the presumption that “you” means what the Policy says it
means—Mark Martin as an individual. See Garner, Redbook § 11.7(a). Since these
introductory phrases do not redefine “you,” and because “you” can only align and
agree with one of these introductory phrases at a time, these introductory phrases
function conditionally, specifying the category of named insured to which the section
applies.
Structurally, the Endorsement mirrors the section of the Farm Liability Coverage
Form that it replaced. It clearly delineates that the first section applies if the named
insured is an individual, the second if it is a partnership or joint venture, and the third if
it is some other organization. See [Doc. 1-2, p. 35]. A reasonable individual policyholder
wouldn’t expect section 3(c) to drastically extend the Policy’s coverage to any
“organization other than a partnership or joint venture [owned by the named insured].”
[Id. at p. 7]. Instead, having read the first page of the Policy, the reasonable policy
holder would know that he’s insured as an individual, and he would understand from
the Endorsement’s language, context, structure, and purpose that only section 3(a)
applies to him. [Id.].
To the extent that Defendants argue that Mark Martin intended for the Policy to
cover Classic City, that argument is unavailing. When parties enter a contract with
18

different intentions, “the meaning placed on the contract by one party and known to be
thus understood by the other party at the time shall be held as the true meaning,” but
only if the contract is ambiguous. O.C.G.A. § 13-2-4; Smith v. Freeport Kaolin Co., 687
F.Supp. 1550, 1557 (M.D. Ga. 1988) (quoting Lovable Co. v. Honeywell, Inc., 431 F.2d 668,
675 (5th Cir. 1970)). No evidence in the record suggests that Grange knew of Mr.
Martin’s intentions or the meaning he placed on the Policy, and even if it did, this
Court’s finding that the Policy is unambiguous renders Mark Martin’s private
understanding irrelevant. See O.C.G.A. § 13-2-4.6
Because the Endorsement is “clear and unambiguous,” the Court will “simply
enforce[] the contract according to its clear terms.” City of Baldwin, 743 S.E.2d at 389
(citation omitted). Defendants’ preferred reading of the Endorsement would radically
extend the Policy’s coverage, but more importantly, is unsupported by the clear and
unambiguous language of the Policy. See [Doc. 1-2, p. 7].
The Court finds that there is no ambiguity in the Policy to resolve, but to the
extent that Defendants’ argument holds water, no “ambiguity remains after applying
the rules of construction.” City of Baldwin, 743 S.E.2d at 389 (citation omitted); see
O.C.G.A. § 13-2-1. Thus, the Court finds that Classic City is not covered by the

Of course, Mr. Martin received a copy of the Policy and he had a more than ample opportunity to read
over the Policy to confirm that it covered exactly who he wanted the Policy to cover. See Cotton States
Mut. Ins. Co. v. Coleman, 530 S.E.2d 229, 231 (Ga. Ct. App. 2000) (“An insured who can read is required to
read the policy and is presumed to have understood its contents.”) (citation omitted).
6

19

Endorsement, GRANTS Grange’s Motion for Summary Judgment [Doc. 29] in part, and
DECLARES that Grange has no duty to defend Classic City in the underlying action.
C.

Grange’s Duty to Defend Shannon Martin

Next, Grange seeks a declaration that it owes no duty to defend Mrs. Martin (or
any party for that matter) because the Martins didn’t comply with the Policy’s notice
provision, which Grange claims is a condition precedent to coverage. [Doc. 29, pp. 9–
14]. Defendants object to Grange’s reliance on evidence extrinsic to the Policy and
underlying complaint to establish that the notice provision was not performed and
argue that, if the Court does consider that evidence, whether the delay was reasonably
justified is a question of fact fit for a jury. [Doc. 31, pp. 4 n.3, 6–7, 11–13]. As explained
further below, the Court finds that the undisputed facts in this case show that the delay
was unreasonable as a matter of law, so this issue is a question of law appropriate for
disposition on summary judgment. See Canadyne-Georgia Corp. v. Continental Ins. Co., 999
F.2d 1547, 1555 (11th Cir. 1993) (citation omitted).
1.

No Disputed Material Facts

The Policy’s notice provision required any insured to notify Grange “as soon as
practicable of [an accident] which may result in a claim.” [Doc. 1-2, p. 33]. On the same
page, the Policy contained a “full compliance” provision stating that “[n]o person or
organization has a right . . . [t]o sue [Grange] on this Coverage Form unless all of its
terms have been fully complied with.” [Id.]. Grange argues that the notice provision is a
20

condition precedent, and the Court agrees. Under settled Georgia law, this “general
provision that no action will lie against the insurer unless the insured has fully
complied with the terms of the policy will suffice to create a condition precedent.”
Progressive Mountain Ins. Co. v. Bishop, 790 S.E.2d 91, 94 (Ga. Ct. App. 2016) (collecting
cases). Further, it is well established that “a notice provision in an insurance contract
that is ‘expressly made a condition precedent to coverage is valid and must be complied
with, absent a showing of justification.’” Plantation Pipe Line Co. v. Stonewall Ins. Co., 780
S.E.2d 501, 509 (Ga. Ct. App. 2015) (citation omitted). “The ordinary principle of
contract law, that a party seeking to recover under a contract must perform any
applicable condition precedent before the contract becomes absolute and obligatory
upon the other party, applies to contracts of insurance.” Id. “[A] forfeiture of insurance
coverage may result when an insured fails to satisfy a condition precedent to coverage
under the contract,” even if that fact is not alleged in underlying the complaint. Id.
Thus, the notice requirement in this case was a condition on—not an exclusion
from—coverage, and Mrs. Martin cannot obtain coverage under the Policy without
showing that she complied with it or can justify her failing to do so. See Bishop, 790
S.E.2d at 94.7 While seemingly harsh, it’s far from uncommon. Georgia courts have

Defendants also argue that Grange cannot be relieved of its duty to defend unless it can show prejudice.
Here, because the Court finds that the notice provision “is a valid condition precedent to coverage, an
insurer is not required to show actual harm from a delay in notice in order to justify a denial of coverage
based on such failure of a condition precedent.” Plantation Pipe Line, 780 S.E.2d at 509–510; Southeastern
Express Sys. v. S. Guar. Ins. Co., 482 S.E.2d 433 (Ga. Ct. App. 1997).
7

21

examined many insurance contracts containing the exact notification language present
in the Policy and have found that the purpose of such a notice requirement is
“obvious”:
to enable the insurer to begin immediately an investigation of
the facts and circumstances for determining whether liability
might be present and whether a settlement of the claim
should be attempted; to get the facts while they [are] fresh and
available in the minds of the parties and such witnesses as
might be available; to obtain pictures, diagrams, etc. which
might assist in showing how the occurrence happened and
the extent of any physical damage done. We all know that
these matters have a way of disappearing and simply
becoming unavailable with the passage of time, and often
witnesses may disappear by moving away, or the status of
damaged property may be changed within very short periods
of time.
Bituminous Cas. Corp. v. J.B. Forrest & Sons, Inc., 209 S.E.2d 6, 8–9 (Ga. Ct. App. 1974).
In determining whether either Martin satisfied the notice provision, the Court
may consider all admissible evidence in the record, contrary to Defendants’ assertions
otherwise. See Allstate Ins. Co. v. Airport Mini Mall, 265 F.Supp.3d 1356, 1376–83 (N.D.
Ga. 2017); Fed. R. Civ. P. 56(c)(1)(A). Grange argues, based on “the Responses of Mark
and Shannon Martin to Plaintiff’s Requests for Admissions,”8 that it is undisputed that
Grange did not receive notice of the events giving rise to the underlying action until

Grange states that a copy of “the Responses of Defendants Mark and Shannon Martin to Plaintiff’s
Requests for Admissions” are “attached . . . as Exhibit A to” Grange’s Motion for Summary Judgment,
but Grange filed its Motion with no attachments. [Doc. 29, p. 2]. Defendants pointed that out in their
Response, and Grange filed its exhibits with its Reply. See [Doc. 32]. Defendants did not file a surreply or
request the Court’s leave to do so. See LR 7.3.1, MDGa.
8

22

nearly two years after they occurred. [Doc. 29, p. 2]. Defendants challenge Grange’s use
of evidence extrinsic to the Policy and underlying complaint, “insist[ing] that this Court
may consider only the underlying complaint and Policy when determining whether
Plaintiff has a duty to defend.” [Doc. 31, pp. 4 n.3, 6–7 (citing Airport Mini Mall, 265
F.Supp.3d at 1366)].
Specifically, Defendants object to any evidence regarding “purported facts
outside the Policy and four corners of the Underlying Complaint” and “insist that this
Court may consider only the Underlying Complaint and Policy when determining
whether [Grange] has a duty to defend.” [Id. at p. 4 n.3].9 However, courts in the
Eleventh Circuit—including the Northern District of Georgia in Airport Mini Mall—
routinely consider evidence extrinsic to those documents, and the Court has found no
authority to support Defendants’ restrictive position. See 265 F.Supp.3d at 1376.
Defendants misread Airport Mini Mall by focusing on its first holding, which
dealt with a policy’s scope of coverage. See [Doc. 31, p. 6]. In that case, the Northern
District of Georgia granted summary judgment for an insurer because that policy did
not cover the underlying claim, and the insured unreasonably delayed providing notice.
See 265 F.Supp.3d 1356. To be sure, the court “examin[ed] the allegations of the

The Court did not consider several of Defendants’ responses to Grange’s Requests for Admissions—
numbers 3, 4, 5, 6, 7, 8, and 23—because the requests exceeded the scope of discovery permitted by the
Court’s Scheduling and Discovery Order. [Doc. 32-1, pp. 3–7, 18]; see [Doc. 26, p. 3].
9

23

[underlying] complaint in conjunction with the relevant policy language” to decide that
the complaint asserted no claims covered by the policy. Id. at 1366–76. Defendants rely
on this first holding, but Grange isn’t arguing that the underlying complaint doesn’t
assert a covered claim, so that issue isn’t relevant here.10 See id.; [Doc. 31, p. 6].
Defendants overlook the second, more on-point holding in Airport Mini Mall. See
265 F.Supp.3d at 1376–83. After finding that the underlying claim fell outside the scope
of coverage, the Northern District of Georgia addressed whether the insured’s sevenmonth delay was unreasonable as a matter of law. See id. In making that determination,
the court considered far more than just the policy and the underlying complaint—it also
considered testimony from the insured’s property manager, two cease-and-desist
letters, admissions in the underlying lawsuit, a federal and local law enforcement raid,
and the timing of the insured’s notification to the insurer. See id. Similarly, in this case,
Grange argues that it has no duty to defend any claim due to a delay in notice, making
the second issue in Airport Mini Mall—not the first—directly relevant. See [Doc. 33, p. 2].
Thus, in resolving this issue, the Court clearly may consider any admissible evidence in
the record. See Airport Mini Mall, 265 F.Supp.3d at 1376–83; Fed. R. Civ. P. 56(c)(1)(A).
2.

Grange is Entitled to Judgment as a Matter of Law

Defendants also rely on Penn-America, which is equally inapposite. See [Doc. 31, pp. 6–7 (citing, 481
S.E.2d 850)]. Like the portion of Airport Mini Mall they reference, Penn-America does not address the issue
presented in this case: the nonperformance of a condition precedent. See Penn-Am., 481 S.E.2d 850; Airport
Mini Mall, 255 F.Supp.3d 1356.
10

24

In most cases, the timeliness of notice and the corresponding issue of the
sufficiency of an insured’s justification for a delay are factual issues that preclude
summary judgment; however, when the undisputed facts show that the delay was
unreasonable as a matter of law, the issue becomes a question of law appropriate for
disposition on summary judgment. See Canadyne, 999 F.2d at 1555 (citation omitted);
Auto-Owners Ins. Co. v. Bailey, 378 F.Supp.3d 1213, 1222 (M.D. Ga. 2019); Owens v.
Progressive Premier Ins. Co. of Ill., 878 S.E.2d 101, 103 (Ga. Ct. App. 2022) (citation
omitted); Forshee v. Emp’rs Mut. Cas. Co., 711 S.E.2d 28, 31 (Ga. Ct. App. 2011) (citation
omitted); Four Parcels, 941 F.2d at 1438. Stated differently, if the allegations in the
underlying complaint show that Defendants’ justification for their delay is
unreasonable as a matter of law, then there is no triable question of fact. See Forshee, 711
S.E.2d at 31 (citation omitted); Canadyne, 999 F.2d at 1555 (11th Cir. 1993) (citation
omitted). Because Classic City is not an insured under the Policy, the only issue to be
decided is whether Mrs. Martin provided timely notice.
The allegations against Mrs. Martin in the underlying complaint leave no room
to doubt that the delay in notifying Grange was unreasonable as a matter of law. See
[Doc. 1-1]. An insured’s “duty to provide notice to the insurer is triggered when the
insured actually knew or should have known of the possibility that it might be held
liable for the occurrence in question.” S.C. Ins. Co. v. Coody, 957 F.Supp. 234, 237 (M.D.
Ga. 1997). Georgia law “requires an insured ‘to act reasonably under the
25

circumstances,’” but it does not require an insured “‘to foresee every possible claim, no
matter how remote,’ that might arise from an event and give notice of it to his insurer.”
Forshee, 711 S.E.2d at 31 (citation omitted). Whether an insured was justified in not
notifying its insurer of an event is determined by considering “the nature and
circumstances of ‘the accident’ or ‘the incident’ and the immediate conclusions an
ordinarily prudent and reasonable person would draw therefrom.” Id. (citation
omitted). The relevant circumstances include “the nature of the event, the extent to
which it would appear to a reasonable person in the circumstances of the insured that
injuries or property damage resulted from the event, and the apparent severity of any
such injuries or damage.” Id.
First, what specific event does Grange say it should have been notified about?
Grange seems to think that the notice requirement was triggered by Ms. Harris’s injury
rather than Mrs. Martin’s actions. See [Doc. 33, p. 4]. Defendants argue that because the
underlying complaint alleges “that Mrs. Martin was negligent in driving Ms. Harris to
the hospital rather than putting her in an ambulance,” the relevant question is whether
Mrs. Martin “should have notified Plaintiff of her decision to drive Ms. Harris to the
hospital.” [Doc. 31, p. 10]. The underlying complaint doesn’t allege that Mrs. Martin
caused Ms. Harris’s hand to be injured by the winch, and Grange fails to explain how
an injury to a Classic City employee could trigger the notice requirement since Classic
City isn’t covered by the Policy. See [Doc. 1-1]; [Doc. 33, p. 4]. Defendants have the
26

better argument on this point. See [Doc. 31, p. 10].
The key question, then, is whether Mrs. Martin should have notified Grange of
her alleged actions? See Coody, 957 F.Supp. at 237. She should have. Based on the
allegations of the underlying complaint, any reasonable person in Mrs. Martin’s shoes
would have known that taking control of the situation, including preventing trained
EMTs with an ambulance from providing professional and immediate aid and
effectively delaying the treatment of Ms. Harris’s serious injury, was likely to give rise
to a claim under the Policy. See id.; Forshee, 711 S.E.2d at 31; [Doc. 1-1, ¶¶ 33–38]; [Doc.
1-2, p. 33].
First, Mrs. Martin allegedly delayed the treatment of Ms. Harris’s injury, against
Ms. Harris’s wishes, by preventing an ambulance from responding to the scene of the
accident. After Ms. Harris was injured, her “coworker, Emily, immediately telephoned
[Mrs.] Martin to report the incident, while Logan telephoned 911 emergency service to
request an ambulance, and an ambulance was dispatched to the scene.” [Doc. 1-1, ¶ 33].
When Mrs. Martin arrived at the scene, “she became irate and angry that Logan” had
called an ambulance because “she didn’t think that [Ms. Harris] would agree to pay for
the cost of the ambulance,” she “directed Logan to immediately call back” and cancel
his request even though Ms. Harris told her “that her mother would pay for the cost of”
the ambulance, and she “told [Ms. Harris] that she would be driving her to an urgent
care center.” [Id. at ¶¶ 34–35]. To make matters worse, as Mrs. Martin and Ms. Harris
27

were leaving the property, Ms. Harris claims that Mrs. Martin saw the ambulance arrive
at the property and “contacted Mr. Martin . . . to warn him” and “instruct[] him to turn
off all outside lights . . . so the ambulance personnel would not know where to find [Ms.
Harris].” [Id. at ¶ 38].
Mrs. Martin knew or should have known that Ms. Harris was severely injured
and that a delay in treatment could likely make the injury worse. According to Ms.
Harris’s underlying complaint, her “fingers were severed, dangling[,] and barely
connected to her hand by a few ligaments and tendons” when Mrs. Martin arrived at
the scene. [Id. at ¶ 31, 36–37]. Mrs. Martin also told Ms. Harris that “she would be
driving her to an urgent care center,” which suggests that she knew the injury was
severe enough to require professional attention. [Id. at ¶ 35]. Thus, considering “the
nature and circumstances of ‘the accident’ . . . and the immediate conclusions an
ordinarily prudent and reasonable person would draw therefrom,” Mrs. Martin should
have immediately known that her actions were likely to give rise to a claim under the
Policy, especially once she learned that Ms. Harris lost parts of two fingers. See Coody,
957 F.Supp. at 237; Forshee, 711 S.E.2d at 31 (citation omitted).
In cases like this one, where notice is a condition precedent to coverage, Georgia
courts have held delays of four months to one year to preclude recovery as a matter of
law. See, e.g., Cotton States Mut. Ins. Co. v. Int’l Surplus Lines Ins. Co., 652 F.Supp. 851, 856
(“The Georgia courts have repeatedly held that where no valid excuse exists, failure to
28

give written notice for periods in the range of four to eight months is unreasonable as a
matter of law.”); EVI Equip., Inc. v. Northern Ins. Co., 188 Ga. App. 818 (1988) (elevenmonth delay); Bituminous, 209 S.E.2d 6 (four-month delay).
First, relying on Newberry v. Cotton States Mutual Insurance Company, Defendants
ask the Court to excuse their late notice because the Martins believed that the incident
was covered by workers’ compensation. [Doc. 31, p. 16 (citing 531 S.E.2d 362, 363–64
(Ga. Ct. App. 2000)]. In Newberry, an insured got into a fight at his wife’s out-of-state
Christmas party but failed to notify his homeowner’s insurance until after his sparring
partner filed suit 11 months later. Newberry, 531 S.E.2d at 362–63. The Georgia Court of
Appeals reversed the trial court’s grant of summary judgment to the insurer because
the insured believed that any claim would be handled through worker’s compensation
and stated that he “had no idea that his homeowner’s insurance policy might afford
coverage for an intentional tort that occurred at an office Christmas party hundreds of
miles from his house.” Id. at 364.
The facts of this case are easily distinguishable from those in Newberry. See id.
Here, the undisputed evidence shows that Ms. Harris was injured on the Martins’ farm,
not on a property in a different state, and that Mr. Martin attempted to contact his
insurance agent to report Ms. Harris’s injury soon after it happened, demonstrating an
awareness that the accident might implicate the Policy. See [Doc. 33, p. 5]; [Doc. 31-1, M.
Martin Decl., ¶ 3]. Moreover, other Georgia courts have held that an insured’s belief
29

that an incident will be covered by other insurance, including worker’s compensation,
does not excuse an insured’s failure to notify an insurer. See, e.g., Geico General Insurance
Company v. Breffle, 844 S.E.2d 179, 181 (Ga. Ct. App. 2020) (noting that where a policy
required notice “as soon as possible after an accident,” it would be “contrary to the
obvious intent of the policy” to “allow an insured to delay notifying the insurer for
months or even years, so long as the insured thought that other insurance existed to
cover the loss.”); Ill. Union Ins. Co. v. NRI Constr., 846 F.Supp.2d 1366 (N.D. Ga. 2012);
Cotton States Mut. Ins. Co. v. Hipps, 481 S.E.2d 876 (Ga. Ct. App. 1997); Diggs v. Southern
Ins. Co., 321 S.E.2d 792 (Ga. Ct. App. 1984).
To the extent that Defendants attempt to argue that Bishop11 is analogous to this
case, the Court disagrees. See [Doc. 31, p. 12]. The Georgia Court of Appeals held that a
triable issue of fact precluded summary judgment where an insured delayed notice for
11 months, given the nature of the underinsured motorist coverage—which would only
have to pay out if the injuries were sufficiently severe to exhaust the at-fault driver’s
policy limits—and the nature of the injuries, as evidence suggested that the full extent
of those injuries may not have been apparent for some time after the accident. Bishop, 79
S.E.2d at 96. Here, by contrast, Ms. Harris’s injuries were not latent, and Mrs. Martin
should have known that her alleged actions were likely to exacerbate Ms. Harris’s

Defendants’ Response contains a paragraph explaining Bishop, 79 S.E.2d 91, but doesn’t explain why
that case is relevant here. See [Doc. 31, p. 12].
11

30

injury at the time, triggering the Policy regardless of the injury’s later development.
Also, to the extent that any case dealing with an underinsured motorist policy is
persuasive in this case, Bishop is less like this case than Lankford v. State Farm Mut. Ins.
Co., 703 S.E.2d 436 (Ga. Ct. App. 2010). In Bishop, the court distinguished Lankford on the
grounds that the two-year delay in Lankford was found unreasonable as a matter of law,
as opposed to in Bishop, where the insured delayed for “less than 11 months” and
“provided notice more than a year before undergoing surgery for his injuries.” Bishop, 79
S.E.2d at 121 (distinguishing Lankford, 703 S.E.2d 436). Here, like in Lankford, the delay
was nearly two years, and Grange was not notified before Ms. Harris underwent
surgery for her injury. See [Doc. 1-1, ¶ 43]; [Doc. 32-1, p. 5]. Regardless, the Policy in this
case is a direct liability policy, not an excess or underinsured policy, so neither of these
cases decide this matter. See [Doc. 1-2].
Next, Defendants argue that the delay was justified because Shannon Martin
believed that Mark Martin had already notified Grange. See [Doc. 31, p. 9]. Defendants
cite no authority to support this argument, and the Court finds that it is without basis in
law or fact. First, Defendants’ argument assumes that Shannon Martin was somehow
entitled to rely on Mark Martin’s representations despite the clear lack of any agency
relationship between Mark Martin and Grange. Second, Mr. Martin states that he
attempted to notify his insurance agent twice, but even if the agent received those
messages, they did not satisfy the notice provision’s requirements. [Doc. 31-1, M. Martin
31

Decl., ¶ 3]; see [Doc. 1-2, p. 33].
Mr. Martin states that he called his insurance agent twice and left voicemails
both times: first “[w]ithin a couple of days of Ms. Harris’s alleged injuries at the
property” and second “after Ms. Harris alleged a worker’s compensation claim against
Classic City.” [Doc. 31-1, M. Martin Decl., ¶ 3]. Both times, according to Mr. Martin, he
told his insurance agent that he was “calling about an incident” and asked for his call to
be returned. [Id.]. Despite the notice provision’s clear language requiring details about
the accident, “injured persons and witnesses,” and the injury itself, these messages
admittedly did not contain any such information. [Id.]; see [Doc. 1-2, p. 33]; Plantation
Pipe Line 780 S.E.2d at 509 (citation omitted) (“Where an insured has not demonstrated
justification for failure to give notice according to the terms of the policy, then the
insurer is not obligated to provide either a defense or coverage.”).
Third, even if the agent had received Mark Martin’s messages, and even if those
messages had satisfied the notice provision’s requirements, “[i]ndependent insurance
agents or brokers are generally considered the agent of the insured, not the insurer.”
Kay-Lex Co. v. Essex Ins. Co., 649 S.E.2d 602, 607 (Ga. Ct. App. 2007) (citation omitted).
The Martins failed to offer any evidence of an actual or apparent agency relationship
between the agent and Grange, so notice to the agent would be as insufficient as a
matter of law as notice to Grange. See id.; Auto-Owners Ins. Co. v. Xytex Tissue Servs.,
LLC, 421 F.Supp.3d 1369 (S.D. Ga. 2019) (holding that an insurance policy did not vest
32

an insurance agent with the apparent authority to receive notice of a claim on behalf of
insurer even though the first page of the policy prominently listed the agent’s contact
information). Thus, any argument that the delay was justified because Mark Martin
represented that he had complied with the notice provision fails. See [Doc. 31, p. 9].
The Court finds as a matter of law that Defendants offer no sufficient justification
for the 23-month delay in this case. See Forshee, 711 S.E.2d at 31 (citation omitted). Thus,
Defendants failed to provide timely notice to Grange, a condition precedent to Grange’s
contractual obligations. See Canadyne, 999 F.2d at 1555 (citation omitted); Plantation Pipe
Line, 780 S.E.2d at 509 (citation omitted). Accordingly, the Court GRANTS Grange’s
Motion for Summary Judgment [Doc. 29] in part and DECLARES that Grange has no
duty to defend Shannon Martin in the underlying action.
D.

Grange’s Duty to Indemnify

Finally, Grange persists in seeking summary judgment on its duty to indemnify
despite the Court’s earlier rulings that this particular issue won’t be ripe until “a
settlement or judgment in the underlying case creates an ‘actual controversy.’” See [Doc.
29]; [Doc. 28, p. 4 (citing 28 U.S.C. 2201(a))]. The Court has already plowed this ground
not once, but twice—first in the Scheduling and Discovery Order, and again in its Order
Denying Grange’s Motion for Reconsideration. See [Doc. 26]; [Doc. 28]. Because
Grange’s duty to indemnify still isn’t ripe for adjudication, the Court declines Grange’s
apparent invitation to turn the soil a third time and DENIES Grange’s Motion for
33

Summary Judgment [Doc. 29] in part. However, because Grange’s duty to indemnify is
not yet ripe, the Court DISMISSES that portion of this case without prejudice.
CONCLUSION
Accordingly, because Classic City is not covered by the Policy, and because the
delay in providing notice to Grange was unreasonable as a matter of law, the Court
GRANTS Grange’s Motion for Summary Judgment [Doc. 29] in part and DECLARES
that Grange has no duty to defend either party in the underlying action. However,
because Grange’s duty to indemnify is not yet ripe, the Court DISMISSES that portion
of this case without prejudice. The Clerk is DIRECTED to enter Judgment and close the
case.
SO ORDERED, this 24th day of September, 2024.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

34