MASSACHUSETTS BAY INSURANCE COMPANY v. FORT BENNING FAMILY COMMUNITIES LLC et al

Filing 44

ORDER granting 41 Motion for Reconsideration and granting summary judgment for Plaintiff. Ordered by US DISTRICT JUDGE CLAY D LAND on 5/15/2017 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MASSACHUSETTS BAY INSURANCE
COMPANY,

*
*

Plaintiff,
*
vs.
*
FORT BENNING FAMILY
COMMUNITIES, LLC, JOHN CALE
BROWN, SR., and DARLENA BROWN

CASE NO. 4:15-CV-75-CDL

*
*

Defendants.
*
O R D E R
The outcome of this declaratory judgment action depends on
whether Georgia or Maryland law applies.

Under Georgia law,

Plaintiff Massachusetts Bay Insurance Company has no duty to
provide coverage to Defendant Fort Benning Family Communities
because the claimed injuries fall under the pollution exclusion
in the policies.
426

(Ga.

See Ga. Farm Bureau v. Smith, 784 S.E.2d 422,

2016).

Under

excluded from coverage.

Maryland

law,

the

injuries

are

not

See Sullins v. Allstate Ins. Co., 667

A.2d 617, 624 (Md. 1995).

On September 27, 2016, the Court

denied Massachusetts Bay’s motion for summary judgment based on
Georgia

law,

rejecting

Georgia

courts

would

Massachusetts

apply

determine which law applies.

the

Bay’s

argument

“presumption

of

that

identity”

the
to

Massachusetts

Bay

moves

the

Court

to

reconsider

the

September 27, 2016 Order (ECF No. 41) in light of the Supreme
Court of Georgia’s March 6, 2017 decision in Coon v. The Medical
Center, Inc., 797 S.E.2d 828 (Ga. 2017).

In Coon, the Georgia

Supreme Court expressly embraced the presumption of identity,
finding that in the absence of a foreign statute on point, “at
least with respect to a state where the common law is in force,
a Georgia court will apply the common law as expounded by the
courts

of

Communities

Georgia.”
concedes

summary judgment

Id.
that

at

834.

Massachusetts

(ECF No. 43).

Fort
Bay

Benning
is

Family

entitled

to

Defendants John and Darlena

Brown have not responded to the motion for reconsideration and
the time for doing so has passed.
Based on the parties’ motions and the Coon decision, the
Court grants Massachusetts Bay’s motion for reconsideration (ECF
No. 41) and declares that: (1) Georgia law governs this action;
and (2) under Georgia law, Massachusetts Bay has no duty to
defend

or

underlying

indemnify

Fort

action.

The

Benning
Clerk

is

Family

Communities

instructed

to

in

enter

the

final

judgment in favor of Massachusetts Bay.
IT IS SO ORDERED, this 15th day of May, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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