GUIDEONE MUTUAL INSURANCE COMPANY v. DANIEL et al

Filing 34

ORDER granting 25 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE HUGH LAWSON on 9/4/2015. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

GUIDEONE MUTUAL
COMPANY,

INSURANCE

Plaintiff,
v.

Civil Action No. 7:13-CV-126 (HL)

TIMOTHY J. DANIEL, II, HEATHER
DANIEL, and JODI E. DARSEY,
Defendants.

ORDER
While in transit to a family Christmas gathering on Christmas Eve 2009,
Jodi E. Darsey collided with a vehicle driven by Timothy J. Daniel, II, and in
which Heather Daniel was a passenger. This case arises from that unfortunate
accident and the tragic injuries sustained by Mr. Daniel. Ms. Darsey’s vehicle
was titled in her name, and she maintained a private automobile insurance
policy. However, the Daniels contend that as an ongoing volunteer with the First
Baptist Church of Hazelhurst, at the time of the accident Ms. Darsey had
additional liability coverage under the church’s Business Auto Policy issued by
GuideOne Mutual Insurance Company (“GuideOne”).
Presently before the Court is Plaintiff GuideOne’s Motion for Summary
Judgment and Motion to Exclude Expert Testimony from Consideration. (Doc.
25).

After reviewing the pleadings, briefs, depositions, and other evidentiary

materials presented, and determining that there is no genuine dispute of the
material facts, the Court finds that Plaintiff is entitled to judgment as a matter of
law and grants Plaintiff’s motion for summary judgment. The Court further finds
that the expert testimony proffered by Defendants is not helpful to the Court’s
interpretation of the contract language at issue and grants Plaintiff’s motion to
exclude the testimony of Defendants’ expert witness.
I.

FACTUAL BACKGROUND
On December 24, 2009, Defendant Jodi Darsey (“Darsey”) departed from

her mother’s home in Cairo, Georgia in her personal vehicle and began traveling
toward her in-laws’ home in Hazelhurst, Georgia. (PSOMF, ¶ 4; Doc. 7, ¶ 13;
Doc. 25-4, p. 14).1 While in route, Darsey was involved in a motor vehicle
accident with Defendants Timothy Daniel and Heather Daniel (“the Daniels”) at
an intersection in Jeff Davis County. (Id.; Doc. 7-2, ¶ 7). Mr. Daniel sustained
significant personal injuries as a result of the collision, including permanent total
paralysis from the navel down; severe scalp lacerations; a concussion; six
broken ribs; right collarbone fracture; right scapula fracture; fractured pelvis;
lacerated spleen and liver; and pleural effusion. (Doc. 7, ¶ 14; Doc. 7-2, ¶ 11).

1

“PSOMF” refers to Plaintiffs’ Statement of Material Facts. “DSOMF” refers to
Defendant’s Statement of Material Facts. The cited paragraphs are those
admitted by each party.
2

The Daniels initiated a personal injury lawsuit against Darsey on
November 11, 2011 in the Superior Court of Morgan County, Civil Action Number
2011CA476, alleging that Darsey’s negligent operation of her vehicle proximately
caused the Daniels’ injuries. (Doc. 7-2, ¶ 17). The Daniels also named as a
defendant in the underlying litigation the First Baptist Church of Hazelhurst, Inc.
(“the Church”), alleging that at the time of the accident Darsey was an agent
and/or employee of the Church and that she was acting within the scope of that
agency and/or employment when the collision occurred. (Doc. 7-2, ¶¶ 5-6). On
November 26, 2012, the Daniels delivered a written demand to Plaintiff
GuideOne Mutual Insurance Company (“GuideOne”) for liability coverage under
the Business Auto Policy, GL 3748-327, (“the Policy”) issued to the Church
based the revised theory that Darsey qualified as an insured because she
performed volunteer services for the Church. (PSOMF, ¶¶ 1, 7; Doc. 25-6).
GuideOne denied coverage under the Policy and later filed the present action for
declaratory judgment seeking a determination from the Court that under the
terms of the Policy the insurance company owes no duty to indemnify Darsey for
any judgment rendered against her in the underlying litigation. (PSOMF, ¶ 8 ;
Doc. 7, ¶ 22).

3

The Policy in question contains the following general insuring agreement:
SECTION II – LIABILITY COVERAGE
A.

Coverage
We will pay all sums an ‘insured’ legally must pay as damages
because of ‘bodily injury’ or ‘property damage’ to which this
insurance applies, caused by an ‘accident’ and resulting from
the ownership, maintenance or use of a covered ‘auto’.

...
1.

Who Is An Insured
The following are ‘insureds’:
a.

You for any covered ‘auto.’2

b.

Anyone else while using with your permission a
covered ‘auto’ you own, hire or borrow except:
(1) The owner or anyone else from whom you hire
or borrow a covered ‘auto.’ This exception does
not apply if the covered ‘auto’ is a trailer
connected to a covered ‘auto’ you own.
(2) Your ‘employee’ if the covered ‘auto’ is owned
by that ‘employee’ or a member of his or her
household.
(3) Someone using a covered ‘auto’ while he or
she is working in a business of selling, servicing ,
repairing, or parking or storing ‘autos’ unless that
business is yours.

2

The Policy defines “you” as the Named Insured in the Declarations, which is the
Church.
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(4) Anyone other than your ‘employees’, partners
(if you are a partnership), members (if you are a
limited liability company), or a lessee or borrower
or any of their ‘employees’, while moving property
to or from a covered ‘auto’.
(5) A partner (if you are a partnership) or a
member (if you are a limited liability company) for
a covered ‘auto’ owned by him or her or a
member of his or her household.
c.

Anyone liable for the conduct of an ‘insured’ described
above but only to the extent of that liability.

(PSOMF, ¶ 2).
At this point, it is undisputed that Darsey was not an employee of the
Church; accordingly, she is not covered as an “insured” under the Policy’s
general terms. (PSOMF, ¶ 5). However, the Policy also includes an endorsement
provision entitled “Institutions – Other than Social Service Agencies – Volunteers
as Insureds” (“Volunteer Endorsement”), which provides:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ
IT CAREFULLY.
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
The following is added to the LIABILITY COVERAGE WHO IS AN
INSURED provision:
Anyone volunteering services to you is an ‘insured’ while using a
covered ‘auto’ you do not own, lease, hire, rent or borrow in your
business. Anyone else who furnishes that ‘auto’ is also an ‘insured.’

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(PSOMF, ¶ 3; DSOMF, ¶ 9).
The link between Darsey and the Church arises from her marriage to the
then-pastor of the Church and her involvement as the Church’s volunteer nursery
coordinator.3 (DSOMF ¶ 2; Doc. 25-4, p. 28). While it undisputed that Darsey was
neither traveling to or from the Church nor performing any service on behalf of
the Church when the accident transpired, the question now before the Court is
whether Darsey’s status as a Church volunteer qualifies her as an “insured”
under the terms of the Volunteer Endorsement. (PSOMF, ¶ 6).
II.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue of material fact arises only when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When considering a motion for summary judgment, the court must
evaluate all of the evidence, together with any logical inferences, in the light most
3

Throughout the briefing of this motion, Defendants also describe Darsey as a
registered nurse. Nothing in the record suggests that Darsey’s medical
certification is somehow connected to any role she served at the Church and,
accordingly, her medical background bears no relevance.
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favorable to the nonmoving party. Id. at 254-55. The court may not, however,
make credibility determinations or weigh the evidence. Id. at 255; see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The

party

seeking

summary

judgment

“always

bears

the

initial

responsibility of informing the district 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 a material fact.” Celotex,
477 U.S. at 323 (internal quotation omitted). If the movant meets this burden, the
burden shifts to the party opposing summary judgment to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact, or that the movant is not entitled to judgment as a matter of law. Id.
at 324-26. This evidence must consist of more than conclusory allegations. See
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary
judgment must be entered “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
III.

ANALYSIS
The parties concur that that the material facts underlying this case are not

in dispute. The only issue before the Court, therefore, is whether the phrase

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“volunteering services” in the Volunteer Endorsement should be interpreted to
provide coverage for Darsey, who while a regular volunteer at the Church was
not actively serving in a volunteer role at the time of the accident with
Defendants. Applying the tenants of contract construction, the Court finds that
the unambiguous terminology of the Volunteer Endorsement does not afford
coverage for Darsey.
A.

Motion to Exclude Expert Testimony

Before the Court can address Plaintiff’s motion for summary judgment, the
Court first must decide whether the testimony of Defendants’ expert Louis G.
Fey, Jr. should be excluded from consideration. Plaintiff argues that even though
Fey carefully states that he is not attempting to reach a legal conclusion,
ultimately, his opinion does just that, articulating how the Volunteer Endorsement
should be interpreted and specifically opining that the Endorsement affords
coverage for the underlying claim. According to Plaintiff, at its heart, Fey’s
opinion is nothing more than a statement that the language of the Volunteer
Endorsement is ambiguous, which is a matter of law for the Court to decide.
Federal Rule of Evidence 702 governs the admissibility of expert
testimony, providing that

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a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify . . . in the form of
an opinion . . ., if (1) the testimony is based upon sufficient
facts or date, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. In applying this rule, the trial court serves as the gatekeeper
and may admit expert testimony only where is it both relevant and reliable. See
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 589 (1993). “District Courts are charged with
this gatekeeping function ‘to ensure that speculative, unreliable expert testimony
does not reach the jury’ under the mantle of reliability that accompanies the
appellation ‘expert testimony.’” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291
(11th Cir. 2005) (quoting McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253,
1256 (11th Cir. 2002)). The party relying on the expert bears the burden of
showing by a preponderance of the evidence that the expert’s testimony is
admissible. Corvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir.
2002) (quoting Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.
1999)).
Proffered testimony also must be relevant and assist the trier of fact.
United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004). “By this
requirement, expert testimony is admissible if it concerns matters that are beyond
the understanding of the average lay person.” Id. (citing United States v. Rouco,
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765 F.2d 983, 995 (11th Cir. 1985) (holding that expert testimony is admissible
only where it offers something “beyond the understanding and experience of the
average citizen”)). Stated another way, “[p]roffered expert testimony generally will
not help the trier of fact when it offers nothing more than what lawyers for the
parties can argue in closing arguments.” Id.
Here, there is no dispute about Fey’s overall qualification to testify as an
expert on the insurance industry’s standard for interpreting policy provisions. The
parties also do not disagree about Fey’s competency to explain the insurance
underwriting process and the differences between the manuscript form created
by GuideOne for the Volunteer Endorsement in question in this case and the
standard industry language that appears in forms developed by the Insurance
Service Office (“ISO”). Those portions of Fey’s testimony thus are admissible
under Rule 702. However, Fey’s opinion regarding why GuideOne employed a
specific form amounts to pure speculation and shall not be considered for the
purpose of ruling on the pending motion. Nor shall the Court consider Fey’s
opinion that the Volunteer Endorsement provides coverage under the facts of this
case. Regardless of Fey’s proclamation that he is not attempting to reach a legal
conclusion, his endeavors to define the possible meaning of “volunteering
services” as it appears in the Endorsement end in an opinion that the policy
language is ambiguous and should be interpreted to provide coverage. Fey’s

10

opinion thus usurps the Court’s role as the trier of fact to determine the existence
of an ambiguity. The Court further finds that the meaning of “volunteering
services” is not beyond the scope of understanding of the average person; thus,
an expert’s opinion is neither warranted nor helpful.
B.

Volunteer Endorsement

The contract language here in dispute reads in pertinent part:
Anyone volunteering services to you is an ‘insured’ while using
a covered ‘auto’ you do not own, lease, hire, rent or borrow in
your business. Anyone else who furnishes that ‘auto’ is also
an ‘insured.’
(Doc. 7-1, p. 38). Specifically, the parties disagree about the meaning of
“volunteering services.” Defendants contend that in the absence of some
durational limitation constricting coverage only to those volunteers actively
performing some volunteer activity on behalf of the Church, the phrase is
rendered ambiguous and subject to multiple interpretations. Defendants therefore
aver that, construing the ambiguity in favor of the insured, the policy affords
coverage not only for those persons presently engaged in volunteer activities but
also for anyone who identifies as a volunteer for the Church, whether that person
is acting on behalf of the Church or on a personal mission. Plaintiff disputes
Defendants’ interpretation, arguing instead that the language is unambiguous
and subject to one reasonable interpretation, which is that the Volunteer
Endorsement is intended to extend the scope of the Policy to cover only those
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volunteers acting on the Church’s behalf. According to Plaintiff, to conclude
otherwise effectively would transform the Church’s Policy into a personal liability
policy for any person who ever volunteered for the Church.
Generally, “[a] federal court sitting in diversity will apply the conflict-of-laws
rules of the forum state.” Grupo Televisa, S.A. v. Telemundo Commc’ns Group,
Inc., 485 F.3d 1233, 1240 (11th Cir. 2007). In a diversity case involving the
interpretation of an insurance contract, “the Court is bound by the applicable
state law governing the contract.” Giddens v. Equitable Life Assurance Soc’y of
U.S., 445 F.3d 1286, 1297 n.9 (11th Cir. 2006). The parties in this case agree
that Georgia law applies.
Under Georgia law, construction of an insurance contract presents a
question of law for the Court. O.C.G.A. § 13-2-1. When interpreting the terms and
conditions of the policy, the Court must abide by “the rules of construction
applicable to other contracts, and words in the policy must be given their usual
and common signification and customary meaning.” Collier v. State Farm Mutl.
Auto. Ins. Co., 249 Ga. App. 865, 866 (2001). The “cardinal rule of construction is
to ascertain the intention of the parties.” O.C.G.A. § 13-2-3. “Where the terms
are clear and unambiguous, and capable of only one reasonable interpretation,
the court is to look to the contract alone to ascertain the parties’ intent.”

12

Fireman’s Fund Ins. Co. v. Univ. of Ga. Athletic Assn., 288 Ga. App. 355, 356-57
(2007).
Ambiguity is “‘duplicity, indistinctness, an uncertainty of meaning or
expression.’” Major v. Allstate Ins. Co., 207 Ga. App. 805, 806 (1993) (quoting
Tarbutton v. Duggan, 45 Ga. App. 31 (1932)). “An insurance contract will be
deemed ambiguous only if its terms are subject to more than one reasonable
interpretation. The policy should be read as a layman would read it and not as it
might be analyzed by an insurance expert or an attorney.” Banks v. Brotherhood
Mut. Ins. Co., 301 Ga. App. 101, 103 (2009) (citation and punctuation omitted).
The “rule of liberal construction of an insurance policy cannot be used to create
an ambiguity where none, in fact, exists.” Id.; State Farm Mut. Auto Ins. Co. v.
Staton, 286 Ga. 23, 25 (2009) (“[W]hile an ambiguity is to be construed in favor
of the insured, this court may not strain the construction of the policy so as to
discover an ambiguity.”) (quotation and citation omitted). The court “must look to
the usual and common meaning of [the] words, and not a meaning based upon
some extreme or unusual definition.” Major, 207 Ga. App. at 806.
Defendants attempt to create an ambiguity where none exists. Looking at
the Policy as a whole, it is clear that the language “volunteering services” is
meant to afford liability coverage for those persons involved in a qualifying
accident while actively serving the Church in a volunteer capacity. Were the

13

Court to accept Defendants’ interpretation, the Volunteer Endorsement would
extend automobile liability coverage to any member of the Church who at any
given time volunteered in the nursery, sang in the choir, taught Sunday School,
or engaged in any other service to the Church under any and all circumstances.
Such a result is unreasonable and clearly not the intent of either the insurer or
the insured.
In support of their position, Defendants endeavor to draw a distinction
between the manuscript form employed by Plaintiff for this Policy and the
standard ISO form commonly used in the insurance industry. Defendants point to
GuideOne Specialty Mut. Ins. Co. v. Missionary Church of Disciples of Jesus
Christ, where the Fifth Circuit was called upon to review a different GuideOne
policy containing the standard ISO volunteer endorsement. 687 F.3d 676, 680
(5th Cir. 2012). The policy in that case read, “Any person who is a volunteer, but
only while using an “auto” with your express knowledge and authorization, in the
course of your business, and within the scope of your duties for you.” Id. First of
all, the variation in the form itself does not equate to ambiguity. See Great Lakes
Reinsurance (UK) PLC v. Vasquez, 341 Fed. App’x 515, 518 (11th Cir. 2009)
(“that the style is different – or even awkward – is not to say that the terms are
ambiguous”). Second, the plain language of both endorsements renders that

14

same result: coverage for a volunteer acting within the scope of that volunteer’s
service to the insured.
At the time of the accident in this case, Darsey was traversing from her
mother’s home to her in-laws’ home. (Doc. 25-4, p. 14). She was traveling neither
too nor from the Church. (Id., p. 24). She had no intention of even going to the
Church that day. (Id., p. 25). Even though Darsey volunteered as the nursery
coordinator for the Church, on December 24, 2009, she was engaging in no
activity in any way related to her volunteer position, and she had no expectation
that she was covered under the Church’s Business Auto Policy during her
personal holiday travels. (Doc. 25-4, p. 23, 25). Thus, applying the unambiguous
terms of the Volunteer Endorsement, the Court finds as a matter of law that the
Policy provided no coverage for Darsey at the time the accident occurred.
IV.

Conclusion
For the reasons discussed herein, the Court finds that the plain and

unambiguous terms of the Volunteer Endorsement preclude coverage of Darsey
under the Policy. Accordingly, Plaintiff’s Motion for Summary Judgment and
Motion to Exclude Expert Testimony from Consideration (Doc. 25) is granted.
SO ORDERED, this the 4th day of September, 2015.

s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
aks
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