AIX SPECIALTY INSURANCE COMPANY v. SAMUEL G COOKE AMERICAN LEGION POST 267, INC, et al

Filing 16

ORDER granting 15 Motion for Summary Judgment Ordered by US DISTRICT JUDGE CLAY D LAND on 06/18/2019 (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
AIX SPECIALTY INSURANCE
COMPANY,

*
*

Plaintiff,
*
vs.
*
SAMUEL G. COOKE AMERICAN LEGION
POST 267, INC. and JELICKA
*
LESTER, as administrator of the
Estate of Cecelia Richerson,
*
Defendants.

CASE NO. 4:18-CV-24 (CDL)

*

O R D E R
AIX Specialty Insurance Company (“AIX”) seeks a declaration
that

it

has

no

contractual

duty

to

defend

or

indemnify

its

insured, Samuel G. Cooke American Legion Post #267, Inc. (“Post
#267”), for claims Cecilia Richerson made against Post #267.1
Defendants did not respond to the summary judgment motion.

As

discussed below, the motion (ECF No. 15) is granted.
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,

1

Richerson has died, and the administrator
substituted as a Defendant in this action.

of

her

estate

was

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.

Id.

Under the Court’s local rules, a party moving for summary
judgment

must

attach

to

its

motion

“a

separate

and

concise

statement of the material facts to which the movant contends
there is no genuine dispute to be tried.” M.D. Ga. R. 56. Those
facts

must

be

supported

by

the

record.

The

respondent

to

a

summary judgment motion must respond “to each of the movant’s
numbered material facts.” Id. “All material facts contained in
the movant’s statement which are not specifically controverted
by specific citation to particular parts of materials in the
record shall be deemed to have been admitted, unless otherwise
inappropriate.” Id.
AIX submitted a statement of undisputed material facts with
its summary judgment motion.

None of the Defendants responded

to the summary judgment motion or to AIX’s statement of material
facts.

Therefore, AIX’s statement of material facts is deemed

admitted pursuant to Local Rule 56. The Court reviewed AIX’s
citations to the record to “determine if there is, indeed, no

2

genuine issue of material fact.”

Reese v. Herbert, 527 F.3d

1253, 1269 (11th Cir. 2008) (quoting United States v. One Piece
of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363
F.3d 1099, 1103 n.6 (11th Cir. 2004)).
FACTUAL BACKGROUND
AIX’s citations to the record reveal the following facts.
AIX

issued

a

liability

insurance

policy

to

Post

#267.

On

October 18, 2014, Richerson attended an event at Post #267 as
the guest of a member.
and

fractured

her

As she exited the event, Richerson fell

ankle.

In

submitted a claim to AIX.2

May

2015,

Richerson’s

lawyer

AIX investigated Richerson’s claim

and determined there was no evidence of the hazardous condition
that Richerson said existed and that there was evidence that
Richerson

was

determinations,

comparatively
AIX

decided

negligent.
to

deny

Based

Richerson’s

on
claim

those
and

notified her lawyer of the decision on January 29, 2016.
On September 26, 2016, Richerson filed a negligence action
against Post #267 in the State Court of Muscogee County.
served Post #267 the next day.

She

Post #267 did not answer or

otherwise respond to the complaint, and the state court entered
a default against Post #267 on January 9, 2017.

The state court

judge scheduled a hearing on damages, and Post #267 was given

2

There is no evidence
settlement demand to AIX.

or

allegation

3

that

Richerson

submitted

a

notice of the hearing.

After the damages hearing, the state

court entered a final judgment against Post #267 on July 10,
2017 for $150,215.00.
On November 3, 2017, Richerson’s attorney sent AIX a letter
seeking payment of the judgment.

This letter was AIX’s first

notice of Richerson’s lawsuit against Post #267; AIX did not
receive
received

notice
the

of

the

letter

lawsuit

from

from

Richerson’s

Post

#267.

attorney,

After

AIX

AIX

contacted

Post #267’s registered agent, who confirmed that she received
Richerson’s summons and complaint on September 27, 2016.
The liability policy states that the insured “must see to
it that [AIX] receive[s] written notice of [a] ‘suit’ as soon as
practicable” and that the insured must “[i]mmediately send [AIX]
copies

of

any

demands,

notices,

summonses

or

legal

received in connection with the claim or ‘suit.’”
Aff. Ex. 1, AIX Policy 47, ECF No. 15-2 at 86.

papers

Fitzgerald

The liability

policy further states that no person may sue AIX on the policy
“unless all of its terms have been fully complied with.”

Id.

DISCUSSION
“If an insured unreasonably fails to comply with applicable
notice

provisions

in

a

timely

manner,

the

insurer

obligated to provide either a defense or coverage.”

is

not

OneBeacon

Am. Ins. Co. v. Catholic Diocese of Savannah, 477 F. App'x 665,
670, 672 (11th Cir. 2012) (per curiam) (citing Kay–Lex Co. v.

4

Essex

Ins.

Co.,

649

S.E.2d

602,

606

(Ga.

Ct.

App.

2007))

(concluding that the insured was not entitled to coverage as a
matter

of

law

because

of

an

unjustified

21-month

delay

in

notifying its insurer of a lawsuit); accord Advocate Networks,
LLC v. Hartford Fire Ins. Co., 674 S.E.2d 617, 619 (Ga. Ct. App.
2009) (affirming summary judgment in favor of insurer where the
policy required insureds to send legal papers to the insurer
“immediately” and the insured did not send the legal papers
until four months after it received them); Burkett v. Liberty
Mut. Fire Ins. Co., 629 S.E.2d 558, 560 (Ga. Ct. App. 2006)
(affirming

summary

judgment

in

favor

of

insurer

where

the

insured did not provide his insurer with legal papers until more
than a year after he received them); Berryhill v. State Farm
Fire

&

Cas.

(affirming
insurer

Co.,

summary

did

not

329

S.E.2d

judgment

receive

189,

in

notice

191

(Ga.

Ct.

favor

of

of

lawsuit

a

insurer

App.
where

until

1985)
the

after

a

default judgment had been taken).
Under the unambiguous policy language in this case, Post
#267 had an obligation to provide AIX with notice of Richerson’s
lawsuit as soon as practicable and to send “immediately” all
legal papers that Post #267 received in connection with the
lawsuit.

Post #267 failed to fulfill the liability policy’s

conditions precedent to coverage because it did not send any
legal papers to AIX—immediately or otherwise.

5

Consequently, AIX

is entitled to a declaration that it has no contractual duty to
defend or indemnify Post #267 for Richerson’s claims, and Post
#267’s breach of contract counterclaim fails as a matter of law.
CONCLUSION
For the reasons set forth above, AIX’s summary judgment
motion (ECF No. 15) is granted.
IT IS SO ORDERED, this 18th day of June, 2019.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

6