Merritt v. Hub International Southwest Agency Limited
Filing
74
ORDER and OPINION granting 49 Defendant's Motion for Summary Judgment; denying 54 Plaintiff's Motion for Partial Summary Judgment; and denying 67 Plaintiff's Motion to Strike. Signed by Judge Julie E. Carnes on 9/12/11. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JERIMAH MERRITT, as assignee of
CAMPANA TECHNOLOGY, INC.,
Plaintiff,
CIVIL ACTION FILE
v.
NO. 1:09-CV-00056-JEC
HUB INTERNATIONAL SOUTHWEST
AGENCY LIMITED,
Defendant.
ORDER & OPINION
This case is presently before the Court on defendant’s Motion
for Summary Judgment [49], plaintiff’s Motion for Partial Summary
Judgment [54], and plaintiff’s Motion to Strike [67]. The Court has
reviewed the record and the arguments of the parties and, for the
reasons set out below, concludes that defendant’s Motion for Summary
Judgment [49] should be GRANTED, plaintiff’s Motion for Partial
Summary Judgment [54] should be DENIED, and plaintiff’s Motion to
Strike [67] should be DENIED.
BACKGROUND
Plaintiff was injured in an industrial accident in February,
2004, when his hands became trapped in a stamping press.
AO 72A
(Rev.8/82)
(Def.’s
Statement of Material Facts (“DSMF”) [49] at ¶ 1.)
accident,
a
corporate
secretary
of
Campana
Prior to the
Technology,
(“CamTech”) allegedly performed some repairs on the press.
¶ 3.)
an
Inc.
(Id. at
During the relevant time period, CamTech was insured under
occurrence-based
Policy
(the
“Policy”) through Fireman’s Fund Insurance Company (“FFIC”).
(Id.
at ¶ 4-5 and Pl.’s
¶ 2.)
Commercial
Statement
General
of
Material
Liability
Facts (“PSMF”) [54] at
The Policy was obtained through defendant Hub International
Southwest Agency Limited (“HUB”), a licensed insurance agency.
(PSMF [54] at ¶ 4.)
In February, 2006, plaintiff filed a lawsuit in Fulton County
State Court against CamTech.
(DSMF [49] at ¶ 1.)
In the suit,
plaintiff alleged that CamTech was partially responsible for his
injuries as a result of its negligent work on the stamping press.
(Id. at ¶ 3.)
Although plaintiff’s accident occurred within the
coverage period, FFIC refused to defend or indemnify CamTech in the
Fulton County suit. (Id. at ¶ 8.) Among other reasons, FFIC denied
coverage because it did not receive timely notice of the suit.
(Id.) Apparently, CamTech delayed giving notice of the suit to FFIC
because it was advised by its broker, defendant HUB, that the Policy
did not cover the loss. (Id.) Defendant HUB never forwarded notice
of the suit to FFIC.
(Pl.’s Br. [70] at Ex. 3.)
2
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Plaintiff attempted to cure the notice issue by dismissing the
2006 suit without prejudice, and refiling it in 2007 pursuant to
Georgia’s renewal statute.
(DSMF [49] at ¶¶ 96-98.)
In the 2007
suit, CamTech filed a third party complaint against defendant HUB
and others in conjunction with its Answer.
12.)
(Pl.’s Br. [70] at Ex.
CamTech subsequently withdrew its Answer to the suit, and a
default judgment was entered against it for $14,661,339.
Exs. 6 and 7.)
(Id. at
As a result of the default judgment, defendant HUB
did not have an opportunity to participate in a trial as to
liability or the amount of damages.
(Id.)
Following the judgment, CamTech assigned all of its claims
against FFIC and defendant HUB to plaintiff in return for a release.
(DSMF [49] at ¶ 12.)
Plaintiff then filed the present lawsuit
against defendant HUB in this Court.
(Compl. [1].)
In his
complaint, plaintiff alleges that defendant was a dual agent of
CamTech and FFIC.
He asserts four theories of liability against
defendant: (1) that it was negligent in (a) failing to forward
notice of plaintiff’s injury and claim to FFIC and (b) advising
CamTech that there was no coverage for the accident; (2) that it
tortuously interfered with CamTech’s contract with FFIC; (3) that
defendant breached the insurance contract; and (4) that defendant
breached a fiduciary duty that it owed to CamTech.
37, 39-41, 44.)
3
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(Id. at ¶¶ 35,
Defendant has filed a motion for summary judgment on all of
plaintiff’s claims.
(Def.’s Mot. for Summ. J. [49].)
In support
of its motion, defendant argues that it did not proximately cause
CamTech’s injury because FFIC did not have an obligation to defend
CamTech in the 2007 suit.
(Def.’s Br. [49].)
a related motion to strike.1
Plaintiff has filed
(Pl.’s Mot. to Strike [67].)
In the
motion to strike, plaintiff seeks to limit the evidentiary materials
available for the Court’s review in deciding the motion for summary
judgment.
(Id.)
DISCUSSION
I.
Plaintiff’s Motion to Strike
In his motion to strike, plaintiff asks the Court to exclude
the
declaration
of
Joanne
Padavano
and
the
prior
deposition
testimony of Bill and Jim Campana under Federal Rule of Civil
Procedure
12(f).
(Id.)
Plaintiff’s
motion
is
procedurally
improper, as Rule 12(f) only applies to pleadings.
See Certain
Underwriters at Lloyd’s, London v. Belu, 2009 WL 2848995 at *3 (N.D.
Ga. 2009) (Story, J.)(explaining that Rule 12(f) only applies to
pleadings) and Morgan v. Sears, Roebuck & Co., 700 F. Supp. 1574,
1
Plaintiff has also filed a motion for partial summary
judgment on his claims. (Pl.’s Mot. for Partial Summ. J. [54].)
As discussed below, the Court’s ruling on defendant’s motion for
summary judgment forecloses the possibility of summary judgment in
favor of plaintiff. Accordingly, plaintiff’s motion for partial
summary judgment [54] is DENIED.
4
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1576 (N.D. Ga. 1988) (Forrester, J.)(noting that the proper method
of challenging evidence is by filing a notice of objection).
The
motion is therefore DENIED.
Nevertheless, the Court may only consider “evidence which can
be reduced to an admissible form” in ruling on a motion for summary
judgment.
2005).
Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir.
Plaintiff contends that the Padavano Declaration does not
meet this standard because it inconsistent with her prior deposition
testimony.
(Pl.’s Br. in Supp. of Mot. to Strike [67] at 2-11.)
As to the Campanas’ testimony, plaintiff suggests that it is
irrelevant because it was generated in a different lawsuit.
(Id.
at 12-24.)
A.
Joanne Padavano’s Declaration
Joanne Padavano was the commercial underwriter for FFIC on the
Policy purchased by CamTech.
4.)
(Padavano Decl. [67] at Ex. A, ¶¶ 2-
She has submitted a declaration in support of defendant’s
motion for summary judgment.
(Id.)
Perceiving inconsistencies
between Padavano’s declaration and her prior deposition testimony,
plaintiff moves to strike the declaration as a “sham affidavit.”
(Pl.’s Br. [67] at 3.)
The “sham affidavit” rule is designed to prevent a party from
fabricating material issues of fact in response to a motion for
summary judgment.
Van T. Junkins & Assocs., Inc., v. U.S. Indus.,
5
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(Rev.8/82)
Inc., 736 F.2d 656, 656-57 (11th Cir. 1984).
It permits a district
court to disregard an affidavit that “contradicts [the affiant’s
prior] testimony on deposition.”
Id.
For the rule to apply, the
affidavit must be “inherently inconsistent” with the affiant’s
deposition testimony. Id. at 658. A statement in an affidavit that
is merely at odds with earlier deposition testimony is not grounds
for exclusion.
Cir. 1986).
Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th
Moreover, affidavits offered by third-parties, as
opposed to litigants, are less susceptible to disregard.
Lane v.
Celotex Corp., 782 F.2d 1526, 1531-32 (11th Cir. 1986)(declining to
apply the sham affidavit rule to a third party’s affidavit).
Applying the above standard, plaintiff has failed to meet his
burden to show that the Padavano Declaration is a sham affidavit.
See In re Stand ‘n Seal, 636 F. Supp. 2d 1333, 1335 (N.D. Ga. 2009)
(Thrash, J.)(placing the burden for demonstrating that an affidavit
is a “sham” on the moving party).
As an initial matter, plaintiff
relies on an “inverse sham affidavit” theory that is not supported
by any case law.
(Pl.’s Br. [67] at 4.)
That is, plaintiff argues
that defendant has offered the Padavano Declaration to show that
there is no genuine issue of material fact, unlike the typical
scenario where a party offers a sham affidavit to fabricate a
genuine issue of material fact.
(Id.)
6
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Plaintiff does not cite any cases that apply the sham affidavit
rule to negate, rather than create, an issue of material fact.
The
Court suspects that no such cases exist, because in ruling on a
motion for summary judgment, courts are required to view the
evidence and make all reasonable inferences in the nonmovant’s
favor.
It is difficult to conceive of a scenario in which an
affidavit that is truly inconsistent with prior deposition testimony
as to a material fact would provide grounds for granting summary
judgment.
Assuming that the sham affidavit rule is available under these
circumstances, the Court still finds the rule inapplicable to the
Padavano Declaration.
Padavano’s
None of the alleged inconsistencies between
declaration
and
“inherent inconsistency.”
her
former
testimony
amount
to
an
See Santhuff v. Seitz, 385 Fed. App’x.
939, 944-945 (11th Cir. 2010) (declaring a party’s affidavit a sham
where
the
explanation
for
“implausible at its core”).
conflicts
with
prior
testimony
was
In fact, the alleged “contradictions”
in the Padavano declaration are better understood as clarifications
necessitated by incomplete or unclear verbal responses in Padavano’s
deposition. As such, the declaration is not properly excluded under
the sham affidavit rule.
See Allen v. Bd. of Pub. Educ., 495 F.3d
1306, 1316 (11th Cir. 2007) (explaining that the sham affidavit rule
should be applied sparingly).
7
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In addition, Padavano is a non-party.
As discussed, the law
of this circuit disfavors the exclusion of third-party affidavits
under the “sham affidavit” rule.
Lane, 782 F.2d at 1531 (“we would
be unable, absent great trepidation to affirm [a finding that an
affidavit is a sham] with respect to a disinterested witness’
contradictory affidavit”)(emphasis in original). See also Reese v.
Herbert, 527 F.3d 1253, 1270 (11th Cir. 2008) (“we have never
squarely addressed whether, and in what circumstances, a district
court may disregard the affidavit of a non-party that is inherently
inconsistent with deposition testimony given by the non-party
previously in the same case”).
declines
to
exclude
the
For all of these reasons, the Court
Padavano
declaration
in
ruling
on
defendant’s motion for summary judgment.2
B.
Prior Deposition Testimony of Bill and Jim Campana
In his motion, plaintiff also asks the Court to strike the
deposition testimony of Bill Campana and Jim Campana that was
2
Plaintiff also argues that Padavano is not entitled to
testify on behalf of FFIC because she was deposed in her individual
capacity, and not as a Rule 30(b)(6) corporate designee. (Pl.’s Br.
[67].) Plaintiff does not cite any authority that would prohibit
former employee Padavano from offering evidence as to how she, as
the corporate underwriter, would have made the decision to deny
coverage. See T.J. Blake Trucking, Inc. v. Alea London, Ltd., 284
Ga. App. 384, 385 (2007)(finding the “affidavit of the person in
charge of making the decisions whether and to what extent coverage
will be provided” satisfactory support for a motion for summary
judgment).
8
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generated in the 2006 Suit.
(Pl.’s Br. [67] at 11-22.)
Plaintiff
argues that both depositions fail to meet the threshold requirements
for admissibility.
As discussed above, striking these depositions
under Rule 12(f) is procedurally improper. See Certain Underwriters
at Lloyd’s, London, 2009 WL 2848995 at *3.
Turning to the question of admissibility, the testimony of Bill
and James Campana is offered to provide background information on
CamTech and its business, as well to establish that Bill Campana
acted independently when he repaired the stamping press.
Resp. Br. [71] at 12.)
(Def.’s
It is thus highly relevant to the vicarious
liability issue, and likely admissible. However, even considering
the deposition testimony, the facts surrounding Bill Campana’s work
on the stamping press are disputed.
Moreover, the Campanas’
testimony has no bearing on the issue of proximate cause, which as
discussed below is an independent ground for granting summary
judgment and is ultimately determinative of this case.
Thus, the
Court will not consider the Campana depositions in ruling on
defendant’s motion for summary judgment.
II.
Defendant’s Motion for Summary Judgment
A.
Summary Judgment Standard
Summary
judgment
is
appropriate
when
the
pleadings,
the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
9
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(Rev.8/82)
movant is entitled to a judgment as a matter of law.
P. 56(c).
FED. R. CIV.
A fact’s materiality is determined by the controlling
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
An issue is genuine when the evidence is such that a
reasonable jury could return a verdict for the nonmovant.
Id. at
249-50.
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits.
Instead, Rule 56 of the Federal Rules of Civil
Procedure mandates the entry of summary judgment against a party who
fails to make a showing sufficient to establish the existence of
every element essential to that party’s case on which that party
will bear the burden of proof at trial.
477 U.S. 317, 322 (1986).
Celotex Corp. v. Catrett,
In such a situation, there can be “‘no
genuine issue as to any material fact,’” as “a complete failure of
proof concerning an essential element of the non[-]moving party’s
case necessarily renders all other facts immaterial.” Id. at 322-23
(quoting FED. R. CIV. P. 56(c)).
The movant bears the initial responsibility of asserting the
basis for his motion.
Id. at 323.
However, the movant is not
required to negate his opponent’s claim.
The movant may discharge
his burden by merely “‘showing’--that is, pointing out to the
district court--that there is an absence of evidence to support the
10
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non[-]moving party’s case.”
Id. at 325.
After the movant has
carried his burden, the non-moving party is then required to “go
beyond the pleadings” and present competent evidence designating
“specific facts showing that there is a genuine issue for trial.”
Id. at 324.
While the court is to view all evidence and factual
inferences in a light most favorable to the non-moving party,
Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988),
“the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue
of material fact.”
B.
Anderson, 477 U.S. at 247-48 (1986).
The Doctrine of Avoidable Consequences
Before addressing the parties’ arguments, the Court notes a
principle of Georgia law, not raised by either party, that appears
relevant to this case.
Under Georgia law, “one cannot willingly
submit to being injured and then seek recompense for that injury
from a third party even if that third party was negligent.”
Robinson v. J. Smith Lanier & Co. of Carrollton, 220 Ga. App. 737,
738 (1996).3 CamTech’s injury, for which plaintiff seeks to recover
3
The parties agree that the Policy is governed by Georgia
law. See Provau v. State Farm Mut. Auto. Ins. Co., 772 F.2d 817,
819 (11th Cir. 1985) (a federal court sitting in diversity must
apply the substantive law of the state in which it is located).
11
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in this case as CamTech’s assignee, is the uninsured loss arising
from a default judgment in the 2007 suit.
(Compl. [1] at ¶ 29.)
CamTech willingly submitted to that injury by withdrawing its
defense of the 2007 suit and permitting an unchallenged hearing on
damages, despite having at least an arguable defense that it was not
liable under common law principles of vicarious liability.
Whether CamTech had a valid defense to the 2007 suit is likely
a jury question given the factual dispute in the record concerning
the issue of vicarious liability.
Regardless, under the cited
Georgia case, it would appear that CamTech could not willingly
abandon the vicarious liability defense and submit to a default
judgment at the expense of defendant, a third-party. Id. There may
have been commendable reasons for CamTech to admit fault, but the
law does not permit CamTech’s “attempt to require defendant to bear
the expense of [its] charity.”
Id. at 739.
Defendant’s motion for
summary judgment on plaintiff’s tort claims would therefore seem to
find some support in this case authority. However, as neither party
discussed this issue, the Court will focus on the ground for summary
judgment asserted by defendant that the Court has found persuasive:
lack of proximate cause.
C.
Proximate Cause
In order to succeed on any of his four primary theories of
recovery, plaintiff must demonstrate that defendant’s conduct was
12
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the “proximate cause” of his injuries.
Robinson, 220 Ga. App. at
738 (“before an action for a tort will lie, the plaintiff must show
he sustained injury or damage as a result of the negligent act or
omission to act in some duty owed to him”).
“[W]hen an injury can
be traced directly to a wrongful act, and but for such wrongful act
it could not reasonably be supposed that the injury would have
resulted, this essentially antecedent act may be said to be the
‘proximate cause’ of the injury.”
Inc., 180 Ga. App. 437, 439 (1986).
Parris v. Pledger Ins. Agency,
With respect to an allegedly
negligent insurance agent, there is no proximate cause unless
“recovery against the insurance carrier would have been possible”
in the absence of the agent’s negligence. See Peagler & Manley Ins.
Agency, Inc. v. Studebaker, 156 Ga. App. 786, 786 (1980).
The crux of plaintiff’s claims is that defendant failed to give
FFIC notice of his injury or the suit, and further failed to advise
CamTech to notify FFIC of either occurrence.
44.)
(Compl. [1] at ¶¶ 35,
This failure is alleged to have proximately caused FFIC’s
denial of coverage, and thus the default judgment against CamTech.
(Id.) However, if no recovery against FFIC would have been possible
in any case, defendant’s actions cannot be considered the proximate
cause of CamTech’s loss, notwithstanding any negligence.
On this
point, the Court agrees with defendant that even if FFIC had been
properly
notified
of
plaintiff’s
13
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accident,
it
would
not
have
provided coverage for his injuries because the undisputed evidence
shows that the Policy was subject to rescission at the time of
plaintiff’s injury.
(See Def.’s Br. [49] at 6-14.)
Rescission voids an insurance policy ab initio.
See Nappier
v. Allstate Ins. Co., 961 F.2d 168, 169 (11th Cir. 1992)(affirming
summary judgment where an insured made material misrepresentations
in an insurance application).
available
when
Under Georgia law, rescission is
misrepresentations,
omissions,
or
incorrect
statements in an insurance application are:
(1)
Fraudulent;
(2)
Material either to the acceptance of the risk or to the
hazard assumed by the insurer; or
(3)
The insurer in good faith would either not have issued
the policy or contract or would not have issued a policy
or contract in as large an amount or at the premium rate
as applied for or would not have provided coverage with
respect to the hazard resulting in the loss if the true
facts had been known to the insurer as required either by
the application for the policy or contract or otherwise.
O.C.G.A. § 33-24-7(b).
Whether an applicant acted in good faith in completing an
insurance application is immaterial in determining whether a policy
is subject to rescission under the above statute.
Taylor v. Ga.
Int’l Life Ins. Co., 207 Ga. App. 341, 342 (1993).
Rather, to
obtain relief under § 33-24-7(b), the insurer “need only show that
the representation [at issue] was false and that it was material in
14
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that it changed the nature, extent, or character of the risk”
assumed by the insurer in issuing the policy.
Id.
See also Pope
v. Mercury Indem. Co., 297 Ga. App. 535, 537 (2009) (“To avoid
coverage under [O.C.G.A. § 33-24-7], ‘the insurer need only show
that the representation was false and that it was material.’”).
A
representation is material when it would “influence a prudent
insurer in determining whether or not to accept the risk, or in
fixing the amount of the premium in the event of such acceptance.”
Bourne v. Balboa Ins. Co., 144 Ga. App. 55, 56 (1977).
There are two documents in the record from which it is apparent
that CamTech materially misrepresented the nature of its business
when it applied for the Policy at issue in this case. First, in the
Application for the Policy, CamTech identified the
hazards and
classifications of its business as (1) “furniture mfg. or assembly
wood,” and (2) “machine shops - NOC.”
(DSMF [49] at ¶ 61.)
The
first classification referred to CamTech’s Georgia location, where
plaintiff was injured.
classification
referred
(Padavano Decl. [59] at ¶ 10.)
to
its
Pennsylvania
The latter
location.4
(Id.)
CamTech affirmatively stated in the Application that it did not
4
Once Ms. Padavano discovered that the Pennsylvania operation
had no manufacturing employees, she changed the code for
Pennsylvania to “furniture mfg. or assembly wood.” (Padavano Decl.
[59] at ¶ 10.)
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install, service, or demonstrate products.
(DSMF [49] at ¶ 63.)
In a separate Executive Summary, CamTech described its business as
“cabinet manufacturing.”
(Id. at ¶ 62.)
Plaintiff does not dispute that the statements and descriptions
in the Application and Executive Summary are inconsistent with
CamTech’s activities that allegedly caused plaintiff’s injury: that
is, repairs to the stamping press that was involved in plaintiff’s
accident.
As such, the representations are properly considered
“incorrect statements.”
See O.C.G.A. § 33-24-7(b).
Moreover, the
statements are material in that they “changed the nature, extent,
or character of the risk” assumed by FFIC in issuing the Policy.
Taylor, 207 Ga. App. at 342.
According to the underwriter’s
unrebutted testimony, FFIC would not have issued the Policy if it
had
known
that
CamTech
was
engaged
in
repairing
industrial
machinery, because that would have drastically increased the risk
assumed
by
FFIC.
(Padavano
Decl.
[50]
at
¶¶
19-25.)
The
underwriter’s testimony is sufficient to support summary judgment
in favor of FFIC, and thus defendant, on the ground of rescission.
Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 432-33
(1995).
In response to defendant’s rescission argument, plaintiff cites
evidence that CamTech’s corporate representative did not prepare or
sign the inaccurate documents.
(J. Campana Decl. [70] at ¶ 6.)
16
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Assuming
that
is
true,
CamTech
nevertheless
is
bound
documents and charged with knowledge of their contents.
by
the
Prudential
Ins. Co. of Am. v. Perry, 121 Ga. App. 618, 622 (1970).
Absent
fraud on the part of the agent, an insurance applicant “is bound by
the answers recorded on [an] application [for insurance], whether
written by him or by [his] agent.”
Id.
Plaintiff does not present
any evidence that the Application was fraudulently completed, or
that
his
agent
prevented
him
from
reading
or
verifying
the
statements in the Application.
Plaintiff also argues that because the alleged misstatements
in
the
Application
and
Executive
Summary
were
not
physically
attached to the Policy, and because the Policy contains a merger
clause, the documents cannot form the basis for rescission.
Resp. Br. [70] at 17-19.)
(Pl.’s
However, in Georgia there is no general
requirement that the application be made part of an insurance policy
except where the policy is one for life insurance. Case v. RGA Ins.
Servs., 239 Ga. App. 1, 9 (1999).
See also 28-176 APPLEMAN
ON
INSURANCE & PRACTICE § 176.01[A] (2011)(explaining that Georgia has no
statute requiring that the application be attached to the policy).
More importantly, O.C.G.A. § 33-24-7 does not by its terms require
that an application be physically attached to an insurance
to serve as a basis for rescission.
policy
Rather, the language of the
statute suggests that it applies to misrepresentations in any
17
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application for insurance, regardless of whether the application is
attached to the policy. O.C.G.A. § 33-24-7(a) and (b). Indeed, the
statute expressly applies even more generally to representations
made during the policy negotiation process.
Id.
In accordance with the broad language of the statute, two
recent Georgia Court of Appeals decisions have rescinded insurance
agreements under § 33-24-7, even though the misrepresentations were
not attached to the policy itself. See Marchant v. Travelers Indem.
Co., 286 Ga. App. 370, 373-75 (2007)(permitting rescission where
questionnaires submitted to obtain a renewal of insurance included
misrepresentations
as
to
the
scope
of
the
insured’s
business
activities) and Pope, 297 Ga. App. at 537-39 (permitting rescission
where misrepresentations occurred as “part of a negotiation for
insurance”).
The Eleventh Circuit similarly has treated § 33-24-7
as an independent basis for rescission, notwithstanding policy
language
purporting
rescission.
to
limit
an
insurer’s
ability
to
seek
Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555
F.3d 1331, 1341 (11th Cir. 2009).
Based on the above authority, the Court concludes that § 33-247 permits rescission based on material misrepresentations in an
insurance application, even though the application is not attached
to the policy and the policy contains a merger clause.
of
CamTech’s
material
misrepresentations,
18
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which
As a result
were
directly
relevant to the injury that plaintiff sustained, FFIC would not have
been obligated to provide coverage for plaintiff’s injury even if
it had received timely notice of the occurrence and of plaintiff’s
suit. Accordingly, the Court GRANTS defendant’s motion for summary
judgment.5
D.
Additional Grounds for Summary Judgment
In Count II of his complaint, plaintiff asserts a claim for
tortious interference with contract.
(Compl. [1] at ¶¶ 36-38.)
To
prevail on this claim, plaintiff must show that defendant is a
“third party” or “stranger” to the contract with which it allegedly
interfered. Atlanta Mkt. Ctr. Mgmt. Co. v. McLane, 269 Ga. 604, 608
(1998).
An agent for one of the parties to a contract of insurance
is not a “stranger” to the contract, and is therefore not subject
to a claim for tortious interference.
Id.
Under Georgia law, an
independent insurance agent or broker is generally considered to be
the insured’s agent.
European Bakers, Ltd. v. Holman, 177 Ga. App.
172, 173-74 (1985).
5
Defendant seeks summary judgment on the additional grounds
that (1) renewal of the 2006 suit cured the late notice issue and
(2) there was no coverage for plaintiff’s injury under various terms
of the Policy. (Def.’s Br. [49].) The first issue is not supported
by the case law cited by defendant. The Court need not reach the
second issue, given the Court’s grant of summary judgment on a
different ground.
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The parties here agree that defendant was CamTech’s agent.
Further, all of defendant’s alleged misconduct occurred while
acting, or failing to act, in its capacity as CamTech’s agent.
such, defendant is not a “stranger” to the Policy.
As
For this
additional reason, defendant’s motion for summary judgment as to
plaintiff’s tortious interference claim is GRANTED.
Count III of the complaint is similarly subject to summary
judgment on alternative grounds.
In this Count, plaintiff claims
that defendant breached the insurance contract.
40.)
(Compl. [1] at ¶
However, defendant is not a named party to the contract.
Neither is defendant a third-party beneficiary of the contract under
Georgia law. Keith v. Alexander Underwriters Gen. Agency, Inc., 226
Ga. App. 838, 840 (1997)(an “insurance agent is not a third-party
beneficiary of the contract of insurance between the insurer and the
policyholder”).
Thus, to the extent plaintiff is claiming a breach
of contract based on the Policy, defendant’s motion for summary
judgment [49] is GRANTED for the additional reason that defendant
is not a party to the contract.
CONCLUSION
For the foregoing reasons, defendant’s Motion for Summary
Judgment [49] is GRANTED, plaintiff’s Motion for Partial Summary
20
AO 72A
(Rev.8/82)
Judgment [54] is DENIED, and plaintiff’s Motion to Strike [67] is
DENIED.
SO ORDERED, this 12th day of September, 2011.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
21
AO 72A
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