OWNERS INSURANCE COMPANY v. Anderson et al

Filing 28

ORDER granting 26 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D. LAND on 1/17/2018 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
OWNERS INSURANCE COMPANY,
Plaintiff,

*
*

vs.

*

CASE NO. 4:16-CV-368(CDL)

TERRELL ANDERSON, BETTY STOKES, *
and CHARLES MIMS,
*
Defendants.
*
O R D E R
Owners Insurance Company (“Owners”) issued a car insurance
policy to Terrell Anderson.

When he failed to pay the premium,

Owners

policy.

canceled

Anderson’s

cancelation,

Betty

involved

a

in

Stokes,

wreck

with

while

A

few

driving

Charles

Mims.

days

after

Anderson’s
After

the

car,

was

the

wreck,

Anderson got the Owners policy reinstated, but he misrepresented
that no accidents had occurred involving the insured vehicle
after the cancelation.

Mims eventually sued Anderson and Stokes

in state court for injuries arising from the wreck.

Owners then

filed this action seeking a declaration that no coverage exists
under its policy, and thus it has no duty to defend or indemnify
Anderson or Stokes.

Because it is undisputed that the policy

was properly canceled prior to the wreck and the policy was
reinstated

based

on

Anderson’s

1

fraudulent

misrepresentations,

the Court grants Owners’ motion for summary judgment (ECF No.
26).
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ. P. 56(a).

In determining whether a

genuine

Fed. R.

dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
party’s

failure

to

point

to

evidence

Id.

that

The nonmoving
would

allow

a

reasonable jury to find in that party’s favor on an essential
element of its claim renders all other facts immaterial and
entitles

the

moving

party

to

judgment

as

a

matter

of

law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
FACTUAL BACKGROUND
Defendants did not respond to Owners’ motion for summary
judgment

or

its

statement

of

undisputed

material

facts.

Therefore, the facts in Owners’ statement of material facts are

2

deemed admitted pursuant to Local Rule 56.
Court

must

still

review

Owners’

citations

Nonetheless, the
to

the

record

to

determine whether a genuine fact dispute exists.

Mann v. Taser

Int'l,

2009).

Inc.,

materials

588

submitted

F.3d

1291,

by

1303

Owners

in

(11th

Cir.

support

of

its

motion

The
for

summary judgment establish the following:
On September 3, 2015, Anderson met with Amanda Cooper, an
insurance agent at Culpepper Insurance Agency, and applied for a
car insurance policy from Owners.
No. 27-4.

Cooper Aff. ¶¶ 2, 4-5, ECF

When he applied for the policy, Anderson also paid

his first month’s premium payment of $108.17.

Id. ¶ 8.

On

September 16, Owners issued Automobile Policy 50-472-508-00 with
an effective date of September 3, 2015 and termination date of
September 3, 2016.

Ketcherside Aff. ¶ 4, ECF No. 27-1; see also

id. Ex. 1, Owners Ins. Policy 50-472-508-00 (Sept. 16, 2016)
[hereinafter “Policy”].

Pursuant to the policy, Owners agreed

to “pay damages for bodily injury and property damage for which
you become legally responsible because of . . . the ownership
. . . of your automobile[.]”
required

Anderson

or

any

Policy § II.1.a.

other

person

seeking

The policy
coverage

to

promptly furnish details about any accident to Owners and to
assist

and

cooperate

with

Owners

in

settlement, or defense of any claim or suit.
policy also provided that

the

investigation,

Id. § V.1-2.

Owners “will not cover

3

The

any person

seeking

coverage

under

this

policy

who

has

made

fraudulent

statements . . . with respect to procurement of this policy or
to any occurrence for which coverage is sought.”

Id. § VI.3.

Anderson did not make his next premium payment.

Eveleth

Aff. ¶¶ 5-7 & Ex. 1, ECF No. 27-3 (detailing credits and debits
for

Anderson’s

policy

and

showing

Anderson’s

September 25, 2015 premium payment).

failure

to

pay

Consequently, on October

27, 2015, Owners sent Anderson a notice of cancellation, which
explained that the policy would be canceled on November 15.
Ketcherside Aff. ¶ 6; id. Ex. 2, Notice of Cancellation (Oct.
28,

2015).

Owners

then

Ketcherside Aff. ¶ 6.

canceled

Report

policy

on

days

(Nov.

after

16,

2015),

the

ECF

accident,

about reinstating the policy.

No.

27-7.

Anderson

that

they

would

reinstate

signed a “No Loss Statement.”
to Anderson.

Id. ¶¶ 15, 17.

the

Id. ¶ 12.

Stokes

Cooper

Cooper then

Id. ¶ 11.
policy

was

Id.

contacted

Cooper Aff. ¶ 10.

contacted Owners about Anderson’s request.
indicated

date.

Pl.’s Mot. for Summ. J. Ex. 7,

driving Anderson’s car at the time of the accident.
Four

that

On November 16, Mims and Stokes were

involved in a car accident.
Accident

the

if

Owners
Anderson

Cooper explained this

On November 23, Anderson signed

the following statement:
In consideration for the acceptance of my payment
after the time and date of cancellation 11/15/2015 at
12:01 a.m., I do hereby certify that there have been

4

no accidents, claims or loses [sic] under my policy
during the time of cancellation, and I understand that
Auto Owners Insurance Company is not liable for any
claims during this time.
Id. Ex. 3, Anderson No Loss Statement (Nov. 23, 2015).
sent the statement to Owners.
Anderson’s
Owners

statement

then

and

reinstated

Cooper Aff. ¶ 21.

with

no

knowledge

Anderson’s

In reliance on

of

policy.

Cooper

the

accident,

Ketcherside

Aff.

Mims made a claim to Owners based on the accident.

One

¶¶ 12, 15-16.

month

after

the

accident,

Owners

sent

a

letter

to

asking him to contact Owners to discuss the claim.

Anderson

Adams Aff. ¶

8, ECF No. 27-2; id. Ex. 2, Letter from W. Adams to T. Anderson
(Dec.

15,

response.

2015),

ECF

No.

Adams Aff. ¶ 10.

27-2

at

37.

Owners

received

no

In March 2016, Owners sent Anderson

a reservation of rights letter, but received no response.

Id.

¶¶ 11-13; id. Ex. 4, Letter from W. Adams to T. Anderson (Mar.
18, 2016), ECF No. 27-2 at 40-45.

Over the next four months,

Owners’ counsel tried three times to schedule examinations under
oath

and

received
Owners’

to
no

obtain

documents

response.

counsel

then

from

Kahren
advised

Aff.

Anderson
¶¶

Anderson

and

6-11,

and

Stokes,

ECF

Stokes

but

No.

27-5.

that

their

failures to communicate constituted breaches of the policy and
that Owners “could give no further consideration to the claim
until

there

has

been

full

compliance

5

with

these

policy

provisions.”

Id. ¶ 12; see also id. Ex. 9, Letter from M.

Kahren to T. Anderson & B. Stokes (July 8, 2016), ECF No. 27-5
at 47-49.

Mims sued Anderson and Stokes in state court in

September 2016.

Compl. Ex. 1, Compl., Mims v. Stokes, No. 16-

CV-575 (State Ct. of Muscogee Cty. Sept. 16, 2016), ECF No. 1-2.
Owners then sent supplemental reservation of rights letters to
Stokes and Anderson.

Adams Aff. ¶ 14.

response from Anderson or Stokes.

Owners received no

Id. ¶ 16.

Neither Anderson

nor Stokes has communicated with Owners or its counsel.

Kahren

Aff. ¶ 13.
Owners then brought this action.

Owners properly served

Anderson with process twice, but Anderson did not respond to the
complaint,
default.

did

not

file

a

responsive

pleading,

and

is

in

See Order Granting Pl.’s Mot. for Entry of Default as

to Def. Anderson, ECF No. 21.

Stokes was served by publication.

She likewise has not responded to the complaint or filed any
responsive pleading.

Mims responded to the complaint, but he

did not file a response to Owners’ summary judgment motion.
DISCUSSION
Owners

seeks

a

declaration

(1)

that

no

coverage

exists

under the policy for the November 16, 2015 accident; (2) that
Anderson breached the policy’s fraud provision by signing the no
loss statement; and (3) that Anderson and Stokes breached the
policy’s

“assist

and

cooperate”

6

provision

by

failing

to

communicate with Owners or its counsel after the accident.

To

cancel a policy for nonpayment of premium, an insurer may mail a
written notice of cancelation to the insured.

The notice must

be mailed at least ten days before the cancelation goes into
effect.

See

O.C.G.A.

§

33-24-44(d).

The

notice

must

also

“clearly, unambiguously, and unequivocally put[] the insured on
notice

that

the

insurance

coverage

at

issue

is

ending.”

Reynolds v. Infinity Gen. Ins. Co., 694 S.E.2d 337, 341 (Ga.
2010).

Because

there

is

no

dispute

that

Owners

mailed

the

notice at least ten days before November 15, 2015 and that the
notice put Anderson on notice that the policy was ending, the
Court
Though

concludes
Owners

reinstatement

that
later

did

Owners
agreed

not

properly
to

apply

canceled

reinstate

retroactively

the
to

the

policy.

policy,
losses

the
that

occurred during the lapse period because the reinstatement was
conditioned

on

Anderson’s

no

loss

statement.

There

is

no

dispute that the accident occurred during the lapse period and
that Anderson

nonetheless

contrary one week later.

signed a no loss statement

to the

Therefore, the Court finds that no

coverage exists under the policy.

See Sims v. First Acceptance

Ins. Co. of Ga., Inc., 745 S.E.2d 306, 309-10 (Ga. Ct. App.
2013) (affirming trial court’s holding that no coverage existed

7

for an accident occurring during a policy’s lapse period when
insured signed no loss statement to reinstate coverage).1
CONCLUSION
For the reasons explained above, no coverage exists under
the

policy.

Therefore,

Owners

has

no

duty

to

defend

or

indemnify Anderson or Stokes for any claims arising from the
accident

that

is

the

subject

of

Mims’s

state

court

action.

Owners’ motion for summary judgment (ECF No. 27) is accordingly
granted.
IT IS SO ORDERED, this 17th day of January, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

1

It is likely that Anderson also breached the fraud provision of the
policy (Policy § VI.3) by misrepresenting that no accident occurred
during the lapse period.

8