HICKORY GROVE MISSIONARY BAPTIST CHURCH v. CHURCH MUTUAL INSURANCE COMPANY
Filing
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ORDER granting in part and denying in part 28 Motion for Summary Judgment. Ordered by U.S. District Judge C ASHLEY ROYAL on 3/21/14 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
HICKORY GROVE MISSIONARY
BAPTIST CHURCH, INC.,
Plaintiff,
v.
CHURCH MUTUAL INSURANCE
COMPANY,
Defendant.
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CIVIL ACTION
No. 5:11‐CV‐407 (CAR)
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This action arises from Plaintiff Hickory Grove Missionary Baptist Church, Inc.’s
insurance policy with Defendant Church Mutual Insurance Company. Plaintiff contends
Defendant breached the terms of the policy by failing to pay for additional covered
damages to their property, Hickory Grove Baptist Church.1 Presently before the Court is
Defendant’s Motion for Summary Judgment. Having carefully considered the parties’
arguments, the record, and applicable law, Defendant’s Motion [Doc. 28] is GRANTED
IN PART and DENIED IN PART.
LEGAL STANDARD
Summary judgment is proper if the movant “shows that there is no genuine issue
1 The Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332. Georgia law
governs the resolution of Plaintiff’s claims. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
as to any material fact and the movant is entitled to a judgment as a matter of law.”2 Not
all factual disputes render summary judgment inappropriate; only a genuine issue of
material fact will defeat a properly supported motion for summary judgment.3 This
means that summary judgment may be granted if there is insufficient evidence for a
reasonable jury to return a verdict for the nonmoving party or, in other words, if
reasonable minds could not differ as to the verdict.4
On summary judgment, the Court must view the evidence and all justifiable
inferences in the light most favorable to the nonmoving party; the Court may not make
credibility determinations or weigh the evidence.5 The moving party “always bears the
initial responsibility of informing the court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact” and that entitle it to a judgment as a matter of law.6 If the
moving party discharges this burden, the burden then shifts to the nonmoving party to
respond by setting forth specific evidence in the record and articulating the precise
manner in which that evidence creates a genuine issue of material fact or that the moving
party is not entitled to a judgment as a matter of law.7 This evidence must consist of
2 Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
3 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247‐48 (1986).
4 See id. at 249‐52.
5 See id. at 254‐55; Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
6 Celotex, 477 U.S. at 323 (internal quotation marks omitted).
7 See Fed. R. Civ. P. 56(e); see also Celotex, 477 U.S. at 324‐26.
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more than mere conclusory allegations or legal conclusions.8
FACTUAL BACKGROUND
For purposes of this Motion, the material facts in the light most favorable to
Plaintiff, the non‐movant, are as follows:
At all times relevant, Defendant insured Plaintiff’s property, Hickory Grove
Baptist Church, under Policy Number 028393‐02‐102614 (“the Policy”).9 On September 1,
2009, Plaintiff hired James Hines d/b/a Hines Construction or James Hines Construction
(“Hines”) to construct a church on Plaintiff’s real property.10 On September 23, 2009,
during construction (specifically while Hines was installing roof trusses), 59 roof trusses
at the front of the church structure collapsed.11 Plaintiff reported the loss to Defendant on
September 25, 2009.
Defendant hired independent insurance adjuster Ed Whiting and structural
engineer Randall H. Peters to investigate the loss.12 Whiting and Peters inspected the loss
site on September 26, 2009, and October 21, 2009.13 During their inspection, Peters
observed that the 59 trusses had collapsed with a “racking or domino effect” toward the
front of the church and damaged some exterior stud frame walls, causing them to tilt
8 Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
9 Ins. Policy [Docs. 29, 29‐1, 29‐2, 29‐3, 29‐4].
10 Complaint, ¶ 7 [Doc. 1‐3].
11 Id. at ¶ 8; Peters Dep., pp. 16‐17 [Docs. 30, 30‐1].
12 Whiting Dep., p. 14 [Doc. 29‐5]; Peters Dep., pp. 13, 26.
13 Peters Dep., pp. 13, 26.
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outward.14 He opined that the remaining rear trusses over the sanctuary did not sustain
damage due to the collapse; instead, he determined that any damage to the remaining
trusses “occurred over a long period of time due to exposure without lateral bracing.”15
Peters ultimately concluded that the 59 trusses collapsed due to a “total absence of
proper bracing.”16 Based on his observations, Peters estimated the total cost for Plaintiff’s
loss, including the collapsed trusses and certain stud walls, at $62,169.60.17 On November
24, 2009, Defendant sent Plaintiff a claim payment check for $61,699.60, representing
Peters’ estimate less the Policy’s $500.00 deductible.18
In late December 2009, Plaintiff contacted Defendant about additional damage to
the front of the building related to the September 23rd collapse.19 Accordingly, Peters
and Whiting returned to the church property on January 5, 2010.20 During a meeting
with Plaintiff’s representative, Whiting agreed to determine whether the additional
damage was covered under the terms of the Policy.21 In turn, Plaintiff’s representative
agreed to “to put together some numbers for … [Defendant] to consider” when making
its determination. 22 Peters did not assess or calculate any additional damage during or
14 Id. at 15‐16, 38, 53‐54.
15 Peters Dep., pp. 18‐22, 30; Peters Engineering Report, p. 2 [Doc. 30‐2].
16 Peters Dep., p. 17.
17 Peters Dep., pp. 53‐54; Peters Estimate, pp. 1‐2 [Doc. 30‐3, pp. 9‐10].
18 Whiting Dep., pp. 34‐36; Peters Estimate, pp. 1‐2 [Doc. 30‐3, pp. 9‐10].
19 Whiting Dep., pp. 32, 36; Whiting Aff., ¶ 5 [Doc. 34‐7].
20 Whiting Dep., pp. 31‐32.
21 Id. at 33‐34.
22 Id. at pp. 31‐32; 36.
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after the meeting.23
Plaintiff’s representative did not submit an estimate of any additional claims after
the January 5, 2010 meeting.24 Accordingly, in a letter dated February 8, 2010, Whiting
stated that he had advised Plaintiff’s representative “to present an estimate for any
additional damage that was believed to be related to the collapse of the trusses.”25
Whiting then requested that Plaintiff “provide me with any additional claim within the
next 30 days that the church would like to make for loss and damage related to the
above[‐]captioned claim so that we might move this matter to closure.”26
Plaintiff did not contact Defendant again until it served Defendant with the
present lawsuit on September 12, 2011. During discovery, Plaintiff’s engineering expert,
Michael E. Clark, asserted that a portion of the collapsed trusses damaged the front entry
of the church.27 He also opined that the collapsed trusses caused the sanctuary walls to
bow out extensively and, as a result, the walls below the remaining 10 trusses “were
pushed out on top.”28 In turn, the remaining trusses “settled and pushed out the tops of
the wall even though said trusses had not failed and collapsed.”29 Plaintiff seeks
payment for these additional damages under the Policy.
23 See Whiting Dep., pp. 31‐32; Peters Dep., pp. 43‐44.
24 See Feb. 8, 2010 Letter [Doc. 35‐1].
25 Id.
26 Id.
27 Clark Aff., ¶ 9.
28 Id. at ¶ 10.
29 Id.
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DISCUSSION
Plaintiff asserts Defendant is liable for breach of contract as well as attorney’s fees
under O.C.G.A. § 13‐6‐11 for Defendant’s bad faith refusal to pay the full amount of
insurance proceeds under the Policy. In opposition, Defendant asserts (1) the Policy does
not cover any additional damage to the church; (2) Plaintiff’s failure to cooperate with
Defendant precludes the instant action; and (3) Plaintiff cannot recover attorney’s fees
under O.C.G.A. § 13‐6‐11 because O.C.G.A. § 33‐4‐6 provides the exclusive remedy for an
insurer’s failure to promptly pay a claim. The Court addresses each of Defendant’s
arguments in turn.
I.
Policy Coverage
Under Georgia law, “[t]he interpretation of a contract is normally a question of law
to be resolved by the court.”30 “Insurance is a matter of contract[,] and the rules governing
construction of contracts are applicable to insurance contracts.”31 To determine whether a
claim is covered by an insurance policy, the Court engages in a three‐step inquiry. First, a
court must determine if the contract language at issue is clear and unambiguous.32 ”If the
terms of the contract are plain and unambiguous, the contract must be enforced as
written[.]”33 If the contract is ambiguous, the Court then applies the rules of contract
30 Willesen v. Ernest Commc’ns, Inc., 323 Ga. App. 457, 459 (2013) (internal citation omitted).
31 Wilson v. S. Gen. Ins. Co., 180 Ga. App. 589, 590 (1986) (internal quotation omitted).
32 See Mitchell v. Cambridge Prop. Owners Ass’n, 276 Ga. App. 326, 327 (2005).
33 Alea London Ltd. V. Am. Home Servs., Inc., 638 F.3d 768, 773‐74 (11th Cir. 2011) (internal quotation
omitted).
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construction to resolve the ambiguity.34 If the contract remains ambiguous after applying
the rules of construction, a jury or other factfinder must determine the parties’ intent.35
In this case, the parties dispute the breadth of Policy coverage in the event of a
“collapse.” The Policy states that Defendant “will pay for direct physical loss or damage
to Covered Property, caused by collapse of a building or any part of a building that is
insured under this Coverage Form[.]”36 “Collapse” is narrowly defined as “an abrupt
falling down or caving in of the building or any part of a building with the result that the
building or part of the building cannot be occupied for its intended purpose.”37 “Collapse”
does not include “[a] building or any part of a building that is in danger of falling down or
caving in” or any part of the building that is standing, “even if it has been separated from
another part of the building” or “shows evidence of cracking, bulging, sagging, bending,
leaning, settling, shrinkage, or expansion.”38
It is undisputed that the 59 trusses collapsed. However, Defendant claims that the
Policy only covers these trusses and does not cover any other damage to the remainder of
the building that did not literally collapse. The Court disagrees. Defendant agreed to
“pay for direct physical loss or damage … caused by collapse.”39 Thus, by its plain terms,
the Policy encompasses all damage caused by the collapsed trusses, not merely the trusses
34 See Hammer Corp. v. Wade, 278 Ga. App. 214, 217 (2006); see also O.C.G.A. § 13‐2‐2.
35 O.C.G.A. § 13‐2‐1.
36 Ins. Policy, Bates 59 [Doc. 29‐1, p. 16].
37 Id.
38 Id.
39 Id.
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themselves. Even assuming, arguendo, that the adjective “direct” creates some ambiguity,
the Court must construe this provision against Defendant, the insurer.40 Accordingly, the
Court concludes that “direct” modifies “loss,” not “damage.” Consequently, this
provision covers both direct physical loss (i.e. the 59 trusses) and any other damage caused
by their collapse.41
In light of this construction, a jury must determine whether any additional damage
resulted from the collapse. Although Defendant’s engineer, Randall H. Peters, asserts that
any remaining damages were caused by the building’s deficient design and construction,
Plaintiff’s engineering expert, Michael E. Clark, concludes that additional collapse‐related
damages remain. A jury must resolve this dispute and determine the value of any
additional covered loss.42
II.
Failure to Cooperate
In Georgia, “an insurer may require its insured to abide by the terms of his policy
and cooperate with the insurer’s investigation, as a precondition to recovery.”43 If an
insurance contract contains a cooperation clause, an insured must “provide any ‘material
information’ to the insurer that the insurer is entitled to receive under the insurance
40 Claussen v. Aetna Cas. Sur. Co., 259 Ga. 333, 335 (1989) (“[I]f an insurance contract is capable of
being construed two ways, it will be construed against the insurance company and in
favor of the insured.”).
The Court does not consider the third‐party coverage definition of “[c]ollapse hazard” in
reaching this conclusion. See Ins. Policy, Bates 94 [Doc. 29‐2, p. 8].
42 The Court declines to address Defendant’s cursory Daubert analysis in the instant Motion. See
Motion for Summary Judgment, p. 14 n.2 [Doc. 28‐1]. To the extent Defendant objects to the
relevance of Plaintiff’s expert testimony, it may raise those objections at trial.
43 Hall v. Liberty Mut. Fire Ins. Co., No. 08‐12051, 2009 WL 235640, at *2 (11th Cir. 2009).
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policy.”44 “A total failure to comply with policy provisions may constitute a breach
precluding recovery from the insurer as a matter of law.”45 However, “the insurer’s failure
to act with diligence and good faith in securing the necessary information … will preclude
the grant of summary judgment to the insurer on the issue of the insured’s compliance
with policy prerequisites.”46
In this case, the Policy required Plaintiff to “cooperate with [Defendant] in the
investigation or settlement of the claim” and “give us complete inventories of the
damaged and undamaged property[,] … [including] quantities, costs values and amount
of loss claimed” at Defendant’s request.47 Plaintiff’s cooperation was a condition precedent
to bringing suit; the Policy prohibited Plaintiff from bringing a legal action against
Defendant unless it “fully compli[ed]” with these terms.48 Based on these terms,
Defendant asserts that Plaintiff cannot pursue the instant action because it failed to
provide an estimate of any additional damages related to the collapse. The Court
disagrees for two reasons.
First, Defendant has failed to establish that Plaintiff’s estimate was “material”
44 Hines v. State Farm Fire & Cas. Co., 815 F.2d 648, 651 (1987) (quoting Halcome v. Cincinnati Ins. Co.,
254 Ga. 742, 744 (1985)).
45 Diamonds & Denims, Inc. v. First of Ga. Ins. Co., 203 Ga. App. 681, 683 (1992).
46 Id.; State Farm Fire & Cas. Co. v. King Sports, Inc., 827 F. Supp. 2d 1364, 1375 (N.D. Ga. 2011)
(noting that the insurer must show its diligence and good faith in securing information to prevail
on summary judgment), aff’d, 489 F. App’x 306 (11th Cir. 2012).
47 Ins. Policy, Bates 52‐53 [Doc. 29‐1].
48 Id. at Bates 27 [Doc. 29]. Both these provisions are encompassed in the “Property Coverage Part
and Its Forms and Endorsements.” Id. at Bates 1 [Doc. 29].
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because Defendant had alternative means of acquiring the same information.49 In fact,
Defendant’s structural engineer, Peters, initially observed the collapse on two separate
occasions and calculated the value of the trusses and certain stud walls without any
apparent input from Plaintiff or its representatives.50 Moreover, Peters had ample
opportunity to evaluate additional damage when he returned to the property on January
5, 2010, at Plaintiff’s request.51 In short, Defendant knew Plaintiff was concerned about
additional damage to the building and had the means to calculate the value of that
damage. A jury must determine whether Plaintiff’s own estimate was material in light of
these facts.
Second, the Court cannot conclude, as a matter of law, that Defendant diligently
pursued the requested estimate. An insurer must “make a reasonable effort to obtain an
insured’s cooperation” before the insurer is relieved of its obligations under the insurance
contract.52 However, Georgia law has not defined what minimal effort is required of the
insurer. As a general rule, insurers commonly request a particular document or
information numerous times before denying coverage for noncooperation.53 Others
49 See Hines, 815 F.2d at 651 (insurer had alternative means of obtaining information but did not
attempt to do so); Roberts v. State Farm Fire and Cas. Co., No. 7:11‐CV‐86 (HL), 2011 WL 6215700, at
*6 (M.D. Ga. Dec. 14, 2011) (insured did not provide “sufficient information to [insurer] for it to
obtain the [requested] documents”).
50 See, Peters Dep., pp. 53‐54; Peters Estimate, pp. 1‐2 [Doc. 30‐3, pp. 9‐10].
51 See Whiting Dep., pp. 31‐32; Peters Dep., pp. 43‐44.
52 King Sports, Inc., 827 F. Supp. 2d at 1375 (citing Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556,
557 (1970)).
53 See, e.g., Allstate Ins. Co. v. Hamler, 247 Ga. App. 574, 577 (2001) (insurer made “numerous, clear
requests”); KHD Deutz of Am. Corp. v. Utica Mutual Ins. Co., Inc., 220 Ga. App. 194, 196 (1996)
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explicitly direct the insured to the cooperation provision or at least notify the insured of
the possible consequences of noncooperation.54 By contrast, in this case, Defendant orally
requested an estimate on January 5, 2010, and repeated that request a single time in its
February 8, 2010 letter.55 Defendant did not refer Plaintiff to the Policy’s cooperation
provision or otherwise inform the Plaintiff of its intent to disclaim any additional coverage
if it did not receive Plaintiff’s estimate. Rather, Defendant’s letter suggested that an
estimate would merely assist the parties in prospectively “mov[ing] this matter to
closure.”56 Defendant has not cited any case—and the Court is not aware of any—that
suggests this minimal communication constitutes a “reasonable effort” to obtain Plaintiff’s
cooperation as a matter of law.
Accordingly, two additional questions of fact remain regarding Plaintiff’s failure to
cooperate: (1) whether Plaintiff’s estimate constituted material information; and (2)
whether Defendants made a reasonable effort to obtain this information. These factual
issues must be resolved by a jury. Consequently, Defendant’s Motion for Summary
Judgment is DENIED IN PART.
(insured refused to respond to insurer’s “numerous efforts” to communicate); Hall, 2009 WL
235640, at *3 (insured failed to respond to insurer’s “repeated requests for specific documents”).
54 See, e.g., Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, 558 (1970) (insurer made several
attempts to obtain cooperation in accordance with the terms of the policy and further advised
insured that noncooperation would permit insurer to disclaim coverage); S. Realty Mgmt., Inc. v.
Aspen Specialty Ins. Co., No. 1:08‐cv‐00572‐JOF, 2010 WL 966426, at *4 (N.D. Ga. 2010) (insurer
requested documents several times and directed insured’s “attention to the portion of the policy
allowing [the insurer] to make such a request”)
55 See Feb. 8, 2010 Letter [Doc. 35‐1].
56 See id.
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III.
Attorney’s Fees
Finally, a party cannot recover under a general penalty provisions such as O.C.G.A.
§ 13‐6‐11 where the Georgia General Assembly has provided another specific procedure
and penalty for non‐compliance.57 In this case, O.C.G.A. § 33‐4‐6 provides the exclusive
remedy for Defendant’s bad faith refusal to pay a claim.58 Therefore, Plaintiff may not
assert a claim for damages pursuant to another statutory section based on Defendant’s
alleged misconduct.59 Accordingly, Defendant’s Motion is GRANTED as to Plaintiff’s
request for attorney’s fees pursuant to O.C.G.A. § 13‐6‐11.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment [Doc. 28] is
hereby GRANTED IN PART and DENIED IN PART.
SO ORDERED, this 21st day of March, 2014.
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
BBP/ssh
57 McCall v. Allstate Ins. Co., 251 Ga. 869, 871‐72 (1984).
58 Howell v. Heritage Ins. Co., 214 Ga. App. 536, 536 (1994).
59 United Servs. Auto. Ass’n v. Carroll, 226 Ga. App. 144, 148 (1997).
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