Dashtpeyma v. Liberty Mutual Group
Filing
102
ORDER AND OPINION granting 78 Defendant's Motion for Summary Judgment. Signed by Judge Julie E. Carnes on 9/27/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HASSANALI DASHTPEYMA,
Plaintiff,
v.
CIVIL ACTION NO.
1:11-cv-3809-JEC
LIBERTY INSURANCE CORPORATION,
Defendant.
ORDER & OPINION
This matter is presently before the Court on the defendant’s
Motion for Summary Judgment (“DMSJ”) [78].
The plaintiff originally
filed suit in the Superior Court of Gwinnett County, seeking a
declaratory
judgment
that
the
insurance
policy
issued
by
the
defendant, Liberty, covered damage to his home caused by a storm.
The action was removed pursuant 28 U.S.C. § 1332.
The Court has reviewed the record and the arguments of the
parties and, for the reasons set out below, concludes that the
defendant’s Motion for Summary Judgment [78] should be GRANTED.
BACKGROUND
This dispute arises from plaintiff’s insurance claim for damages
that resulted from a severe storm that hit the Atlanta area in April
2011.
AO 72A
(Rev.8/82)
After the denial of a majority of his insurance claims,
plaintiff, proceeding pro se, brought suit against his insurer,
Liberty Insurance Corporation (“Liberty”).1
(Not. of Rem. [1] at ¶
1.) Plaintiff not only sought a declaration that his insurance claim
was covered, but also made a claim for bad faith damages pursuant to
O.C.G.A.
§§
33-4-6,
13-6-11
and
13-11-8
for
Liberty’s
alleged
stubborn litigiousness and bad faith in denying plaintiff’s insurance
claim.
I.
(Id. at Ex. A.)
PROCEDURAL HISTORY AND DISCOVERY DISPUTES
This litigation has proven contentious from the start.
Hassanali2 Dashtpeyma is not the typical pro se plaintiff.
First,
Although
he has never been a member or even applied for membership to the
State Bar of Georgia, Mr. Dashtpeyma obtained a law degree from the
Atlanta Law Center in 1993 and received an L.L.M. in Litigation from
the same institution a year later.
Dep. [82] at
9 & 12.)
(Hassanali Dashtpeyma (“Dash.”)
During discovery, plaintiff has behaved
aggressively, filing three separate motions to compel as well as a
motion to quash the defendant’s subpoena to take the deposition of
1
Initially, plaintiff erroneously named “Liberty Mutual Group”
as the defendant.
However, plaintiff amended its complaint to
reflect the proper defendant. (See First Am. Compl. [7].)
2
There are instances found within the record and in motions
where Mr. Dashtpeyma’s given name is stated as two separate names,
“Hassan Ali,” and other times where it is just the single name,
“Hassanali.” As plaintiff uses just a single name in his response,
the Court will as well.
(See Pl.’s Br. In Opp. To DMSJ (“Pl.’s
Resp.”) [86] at 1.)
2
AO 72A
(Rev.8/82)
his wife, Klara.
(See Baverman July 2012 Order [66] at 2.)
His
third motion to compel was filed before the deadline for defendant to
respond had even expired.
(Id.)
Further, plaintiff’s motion to
quash the defendant’s subpoena of his wife was largely based on a
typographical error in defendant’s subpoena in which the last number
of the claim identification number was mistakenly left off.
(See
Pl.’s Mot. To Quash [54] and Def.’s Resp. To Pl.’s Mot. To Quash [56]
at 3-4.)
In ruling on plaintiff’s motions to compel and for sanctions
against
the
defendant,
Judge
Baverman
found
that
it
was
the
plaintiff, not defendant, who had behaved unreasonably. Accordingly,
Judge Baverman denied the motions as being frivolous.
6.)
(See id. at
In addition to formally warning the plaintiff about future
sanctions, Judge Baverman directed plaintiff to show cause for why he
should not be required to pay the defendant’s filing fees after
requiring them to respond to frivolous motions.
(Id. at 17.)
In his
subsequent order sanctioning the plaintiff, Judge Baverman noted that
his
decision
was
supported
by
the
evidence
on
record,
which
illustrated that the plaintiff, rather than the defendant, had been
the harassing, uncooperative party throughout discovery, not just by
filing frivolous motions, but also through actions at his own
deposition.
(Baverman August 2012 Order [71] at 10-13.)
Shortly thereafter, defendant filed the present motion for
3
AO 72A
(Rev.8/82)
summary judgment.
Defendant maintains essentially the same position
it took when initially denying the claim: that the coverage policy
excludes the damages sought by the plaintiff and thus, defendant is
not liable to plaintiff for the damage, nor was it unreasonable in
denying his insurance claim.
II.
(DMSJ [78] at 2.)
INSURANCE POLICY
Homeowners Policy, Number H 37-258-552703-400 7 (the “policy”),
covers the residence at 446 Summit Club Drive, Marietta, Georgia
30068 and was issued to Hassanali Dashtpeyma for the period of August
(Policy,3 attached as Ex. E to Def.’s
8, 2010 to August 8, 2011.
Initial Disclosures [5].) There are several provisions of the policy
pertinent
to
the
instant
action.
“Coverage
A”
defines
what
constitutes a dwelling or residence for purposes of the policy and is
subsequently referenced throughout the policy.
(Id. at 12-13.)
“Coverage B” provides the general definition for other structures
that may also be covered even if they are not directly attached to
the dwelling.
The
(Id. at 13.)
appropriate
bounds
of
the
3
above
provisions
are
not
Although not formally, plaintiff appears to make the argument
that the policy being referenced by defendant differs from the policy
actually issued to him.
In an abundance of caution, the Court
compared the copy defendant initially disclosed with the copy of the
policy plaintiff originally attached to his state court complaint.
As the two documents contain no material differences, the Court
rejects this argument, if it is indeed being made.
4
AO 72A
(Rev.8/82)
contested, but other provisions in the policy are.
Under “Section I
- Perils Insured Against,” the policy provides:
COVERAGE A - DWELLING and COVERAGE B - OTHER STRUCTURES
We insure against risk of direct loss to property described
in Coverages A and B only if that loss is a physical loss
to property. We do not insure, however, for loss:
. . .
2.
Caused by:
. . .
e. Any of the following:
(1)
Wear and tear, marring, deterioration;
(2)
Inherent vice, latent defect, mechanical
breakdown[.]
(Id. at 17 (emphasis added).)
This section of the policy further provides:
COVERAGE C - PERSONAL PROPERTY
We insure for direct physical loss to the property
described in Coverage C caused by a peril listed below
unless the loss is excluded in SECTION 1 - EXCLUSIONS.
. . .
2. Windstorm or hail.
This peril does not include loss to the property
contained in a building caused by rain, snow, sleet, sand
or dust unless the direct force of wind or hail damages the
building causing an opening in a roof or wall and the rain,
snow, sleet, sand or dust enters through this opening.
(Id. at 17-18)(emphasis added).
5
AO 72A
(Rev.8/82)
In the next section of the policy, entitled “SECTION I EXCLUSIONS,” the policy states:
1. We do not insure for loss caused directly or indirectly
by any of the following. Such loss is excluded regardless
of any other cause or event contributing concurrently or in
any sequence to the loss.
. . .
e. Neglect, meaning neglect of the “insured” to use
all reasonable means to save and preserve property at and
after the time of a loss.
. . .
2.
We do not insure for loss to property described in
Coverages A and B caused by any of the following[]
. . .
c.
Faulty, inadequate or defective:
. . .
(4)
Maintenance;
of part or all of any property
whether on or off the “residence
premises.”
(Policy [5] at 18-19)(emphasis added).
III. RELEVANT FACTS
While this litigation has been acrimonious, there can be little
dispute as to the facts.
Therefore, unless otherwise noted, the
following facts are not in dispute.
On April 16, a severe storm in Atlanta caused damage to the
plaintiff’s home.
(Compl., attached as Ex. A to Not. of Removal [1],
6
AO 72A
(Rev.8/82)
at ¶ 3.) Plaintiff subsequently submitted a claim4 to his insurer and
defendant in this action, Liberty.
(Id. at ¶ 6.)
Liberty assigned
the case to James Monaghan, an adjuster contracted through a thirdparty, the Worley Companies, and Monaghan visited the insured property
on April 30.
8.)
(Def.’s Statement of Material Facts (“DSMF”) [78] at ¶
During his inspection, Monaghan took photos of the house and
completed a report based on this visit.
(Monaghan Dep. [74] at 28.)
He found that the storm had not created a hole in which rain had
entered the home (id. at 58-60), but instead that rain had seeped into
the house because of rot that had eaten away the siding and window
sills. (Monaghan Aff., attached as Ex. E to DMSJ [78], at ¶ 6.)
The
pictures taken by Monaghan depict the rotting siding and window sills
where the water was leaking into the house.
(Monaghan Dep. [74] at
Ex. 11.) For these reasons, Monaghan determined that the cause of the
plaintiff’s interior water intrusion “was faulty, inadequate or
defective
maintenance,
as
well
as
wear
and
tear,
neglect
and
deterioration of siding and window sills,” (Monaghan Aff. [78-1] at
¶ 6), and found that the only damage covered under the policy were
those that resulted from wind-driven rain.
(Monaghan Dep. [74] at
29.) He assessed the reasonable cost of repairing the covered damages
to be $2,679.50.
4
(DSMF [78] at ¶ 13.)
The claim number is 18644614-01.
7
AO 72A
(Rev.8/82)
(Compl. [1] at ¶ 6.)
Mr. Monaghan’s report was then independently reviewed by another
claims adjuster, Eric Aucoin, who Liberty also contracted through
Worley.
(Id. at ¶ 14-15.)
In addition to reviewing the pictures in
Monaghan’s report, Aucoin also reviewed additional pictures submitted
to him by the plaintiff.
(Id. at ¶ 15.)
Aucoin determined that
Monaghan properly assessed the damages to plaintiff’s home and the
cause of the loss.
Because
(Aucoin Dep. [73] at 20, DSMF [78] at ¶ 17.)
plaintiff
was
upset
with
this
low
estimate
and
declination of coverage of his personal property (Monaghan Dep. [74]
at Ex. 4), defendant Liberty sent their own Senior Property Loss
Specialist to inspect plaintiff’s home in order to reevaluate the
insurance claim.
(Gill Dep. [57] at 90.)
Gill agreed with Monaghan
that the “cause of [the] interior leakage was from rot on the exterior
siding.”
(Id. at 32-33.)
Further, Gill found that the rot was not
caused by the storm itself but “was a result of ongoing lack of
maintenance, wear-and-tear, and deterioration.”
(Id. at 36.)
Gill
did increase the estimate for the cost of repairing the covered
damage, to $3,721.85. (Id. at 68.) Based on Gill’s estimate, Liberty
issued a check to the plaintiff for $37.91, which represented the
estimated
deductible.
cost
of
repair,
less
depreciation
and
plaintiff’s
(Id. at Ex. 2 and DSMF [78] at ¶ 22.)
Unsatisfied with Liberty’s decision, plaintiff filed the present
suit in the Superior Court of Gwinnett County on October 10, 2011,
8
AO 72A
(Rev.8/82)
alleging that more of the damage was covered under the policy and that
Liberty violated several Georgia laws by denying coverage in bad
faith. (Compl., attached as Ex. A to Not. of Removal [1].) Defendant
timely removed the action.
(Not. of Removal [1].)
After the close
of discovery, defendant then filed the present summary judgment
motion.
(DMSJ [78].)
DISCUSSION
I.
LEGAL STANDARDS
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 movant is
entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(c).
It
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.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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
9
AO 72A
(Rev.8/82)
immaterial.
Id. at 322-23 (quoting FED. R. CIV. P. 56(c)).
The movant bears the initial burden of asserting the basis for
his motion. Id. at 323. When evaluating whether this burden has been
met, “the district court must review the evidence and all factual
inferences drawn therefrom, in the light most favorable to the nonmoving party.”
Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,
918-19 (11th Cir. 1993).
Once this initial burden is met, then the
non-movant must go beyond the pleadings to establish that there exists
a genuine issue of material fact.
Id.
The mere existence of a
scintilla of evidence is insufficient, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986), and the non-movant must present
competent evidence designating “specific facts showing that there is
a genuine issue for trial.”
B.
Celotex, 477 U.S. at 324.
Insurance Contracts
In Georgia, an insurance policy is treated as a contract, and the
parties are bound by the policy’s plain and unambiguous terms.
SawHorse, Inc. v. S. Guar. Ins. Co. of Georgia, 269 Ga. App. 493, 494
(2004).
Although a court must construe any ambiguities strictly
against the insurer, “if the language is unambiguous and but one
reasonable construction is possible, the court will enforce the
contract
as
written.”
quotations omitted).
Id.
at
494-95
(internal
citations
and
Further, when construing an insurance policy,
the court “must consider it as a whole, give effect to each provision,
10
AO 72A
(Rev.8/82)
and interpret each provision to harmonize with each other.”
Auto-
Owners Ins. Co. v. State Farm Fire & Cas. Co., 297 Ga. App. 751, 754
(2009).
Finally, “an insured claiming an insurance benefit ‘has the
burden of proving that a claim falls within the coverage of the
policy.’”
Forster v. State Farm Fire & Cas. Co., 307 Ga. App. 89, 91
(2010).
II.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant Liberty argues that the only evidence before the Court
indicates that the water intruded, not because the rain came through
a storm-created opening (there was no opening), but because the
property had been inadequately maintained.
(DMSJ [78] at 10.)
In
support of its position, defendant points to the findings made by
three different adjusters who evaluated Mr. Dashtpeyma’s claim. (See
id. at 13-15.) In response, plaintiff presented no evidence or expert
opinions
refuting
the
expert
opinions
of
the
three
insurance
adjusters, each of whom were properly and timely disclosed pursuant
to FED. R. CIV. P. 26.
(See Rule 26 Disclosures [58], [59] & [60].)
Instead, the plaintiff argues that defendant admitted to “fabricating
documents” and “manipulating data,” (Pl.’s Resp. [86] at 1, 6, 8, 10,
16, 18 & 20), and thus, summary judgment should be denied.
Plaintiff
also claims that the word “opening,” as used in the policy, is
ambiguous.
(Id. at 18 & 27.)
11
AO 72A
(Rev.8/82)
As to plaintiff’s argument that defendant supposedly admitted to
manipulating data and fabricating documents, many of the plaintiff’s
statements as to this argument contain no citations.
When plaintiff
does cite the record in support, he cites to the deposition of Ralph
Gill,
the
senior
loss
specialist
plaintiff’s insurance claim.
for
Liberty
(Id. at 6, 8 & 10.)
who
reevaluated
The Court reviewed
the entire deposition of Ralph Gill and finds plaintiff’s argument to
be unsupported by that testimony.
For example, plaintiff cites to
page 77, line 9 of the Gill deposition to support an allegation that
defendant fabricated documents. (Id. at 10.)
That portion of the
deposition concerned a letter sent by Mr. Gill to Mr. Dashtpeyma on
August 31.
(See Gill Dep. [57] at 75.)
The letter, however, was
mistakenly dated in the top left corner as “August 1, 2011.”
75.)
(Id. at
Seizing on this typographical error, the plaintiff questioned
the authenticity of the document since the dates in the body of the
letter, August 16 and 17, are after the date in the top left corner
of the letter, August 1.
Even after Gill admitted that he typed the
letter and simply made a typographical error in the heading (id.),
plaintiff continued questioning that suggested some sinister purpose
by Gill, eventually leading to the following exchange, which plaintiff
cites
as
support
of
his
claim
documents”:
12
AO 72A
(Rev.8/82)
that
the
defendant
“fabricated
Q (Mr. Dashtpeyma, as pro se counsel): Can you state
whether or not this letter is nothing but a fabrication?
A (Mr. Gill): I typed the letter.
Q: So it’s not a fabrication, is it?
A: Well, it depends on what you mean by fabrication. I
fabricated -–
Q: It means you made up some date which you can not
elaborate or you can not support the date that’s there in
your own letter, can you?
A: I didn’t change the dates.
letter and --
I mistakenly dated this
Q: And you -A: -- but I typed this letter.
(Id. at 77)(emphasis added).
It is clear that Gill was not admitting to fabricating any
documents.
Gill was attempting to answer plaintiff’s question when
he was cut off.
Further, there were several instances where the
plaintiff and deponent could not understand each other clearly.
Moreover,
there
was
nothing
amiss
about
Mr.
Gill
clarification of the definition of “fabrication.”
asking
for
Adding to the
confusion was the fact that plaintiff continued to question Gill as
if Gill had not already admitted to making a typographical error. For
these reasons, the Court finds the plaintiff’s claim that defendant
admitted to fabricating documents to be misleading and entirely
unsupported by the record.
13
AO 72A
(Rev.8/82)
A.
Damage to Plaintiff’s Home
Plaintiff’s claim for damages under the insurance contract are
two-fold.
First, plaintiff claims that the policy covers damage to
his home resulting from the storm.
Second, plaintiff argues that the
damage to his personal property, such as his stereo and some Persian
rugs, is also covered by the policy.
It is not disputed that rain water leaked into plaintiff’s home
and caused damage.
Defendant argues, however, that the damage is
excluded by the unambiguous terms of the insurance contract.
The
Court agrees with the defendant that the terms of the policy are
unambiguous and therefore, the Court must enforce the contract as
written.
SawHorse, 269 Ga. App. at 494-95.
Under the section covering plaintiff’s dwelling, the policy
explicitly provides that “we [the insurer] do not insure, however, for
loss...caused by...wear and tear, marring [or] deterioration” or any
loss
“excluded
section”).
under
Section
I
-
Exclusions”
(the
“Exclusions
(Policy [5] at 17 (section numbering excluded).)
The
Exclusions section excludes coverage, regardless of the terms of any
other
provision,
for
any
loss
to
property
caused
by
inadequate or defective . . . maintenance” of the property.
“faulty,
(Id. at
18-19 (section numbering excluded).) All three of the adjusters found
that the water-based intrusion was the result of an ongoing lack of
maintenance, wear-and-tear, and deterioration.
14
AO 72A
(Rev.8/82)
(Monaghan Aff. [78]
at ¶ 6; Gill Dep. [57] at 36; Aucoin Dep. [73] at 20.)
Plaintiff
provides
properly-disclosed
no evidence to rebut these findings by
experts.
Instead,
plaintiff
clings
to
his
unsupported claim that defendant admitted to fabricating documents.
As this Court previously found, that argument is without merit. Thus,
the evidence indicates that the rainwater damage to plaintiff’s home
was caused not by the severity of the storm itself, but by “inadequate
or defective maintenance, as well as wear and tear, neglect and
deterioration of [the] siding and window sills.”
1] at ¶ 6.)
(Monaghan Aff. [78-
Therefore, coverage is excluded under either the wear-
and-tear or deterioration clauses of the Exclusions section.
For
these reasons, the Court agrees with the defendant that plaintiff
failed to meet his “burden of proving that [his] claim falls within
the coverage of the policy,”
B.
Forster, 307 Ga. App. at 91.
Damage to Plaintiff’s Personal Property
The policy provides that Liberty will insure for damage to
personal property if caused by one of the specifically-enumerated
perils.
(Policy [5] at 17.)
One of the perils listed is “windstorm
or hail,” but the policy provides that “[t]his peril does not include
loss to property contained in a building caused by rain, snow, sleet,
sand or dust unless the direct force of wind or hail damages the
building causing an opening in a roof or wall and the rain, snow,
sleet, sand or dust enters through this opening.”
15
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(Rev.8/82)
(Id. at 18)
(emphases
added).
Georgia
law
treats
insurance
policies
no
differently than other contracts and the parties are bound by their
plain and unambiguous terms. Park ‘N Go of Georgia, Inc. v. U.S. Fid.
and Guar. Co., 266 Ga. 787, 791 (1996).
The above clause makes clear
that any damage caused to plaintiff’s personal property caused by rain
is not covered unless there has also been windstorm or hail that
created an “opening” in the house into which the rain entered.
Plaintiff
argues,
however,
that
this
clause
enforced because the word “opening” is ambiguous.
at 18-19, 27-28.)
should
not
be
(Pl.’s Resp. [86]
“A word or phrase is ambiguous when it is of
uncertain meaning and may be fairly understood in more ways than one.”
Akron Pest Control v. Radar Exterminating Co., Inc., 216 Ga. App. 495,
497 (1995).
However, “if the terms used are clear and unambiguous[,]
they are to be taken and understood in their plain, ordinary, and
popular sense.
sense.”
Id.
Dictionaries supply the plain, ordinary and popular
In the present case, the Court finds that the term
“opening” is clear.
An “opening” is defined as “an open space
affording passage or view” or “a gap or breach.”
Riverside University Dictionary 823 (1986).
Webster’s II New
For these reasons, the
Court concludes that the windstorm/hail peril clause excludes any
damage caused by rain unless an opening has been created by the direct
force of wind or hail, and the rain subsequently has entered the house
through this “open space” or “gap” created in the roof or wall.
16
AO 72A
(Rev.8/82)
Here, there is no evidence that an “opening” was created by the
wind or hail that struck the plaintiff’s house during the April 2011
storm. James Monaghan visited the house two weeks after the storm hit
and took extensive pictures detailing the damage to the house.
Monaghan Dep. [74] at 28.)
(See
He found no evidence of storm damage that
created an opening (id. at 59), and none of the pictures of the home
show any opening where rainwater came into the house, let alone an
opening caused by wind or hail.
(See id. at Ex. 11.)
Further,
plaintiff does not argue that an opening was created, just that the
term is ambiguous since it can have several definitions. (Pl.’s Resp.
[86] at 27.)
However, the inquiry is not whether a term may have
several definitions, but whether the term, as used in the contract,
is plain and unambiguous.
497.
Therefore,
even
See Akron Pest Control, 216 Ga. App. at
though
the
term
“opening”
has
several
definitions, the meaning of the term opening as used in the policy is
not uncertain or “fairly understood in more ways than one.”
Id.
For
example, no reasonable person would believe that the word “opening,”
when used in the present context means “an opportunity to achieve
something,” which is the definition that plaintiff advances.
(Pl.’s
Resp. [86] at 27.)
Accordingly, as the policy is unambiguous and no “opening” was
created by the direct force of wind or hail, the damages to the
plaintiff’s personal property are also excluded.
17
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(Rev.8/82)
For the above
reasons, the plaintiff has failed to meet his burden and thus, the
defendant’s motion for summary judgment [78] should be GRANTED.
See
Forster, 307 Ga. App. at 91.
C.
Plaintiff’s Bad-Faith Claims
Defendant also moves for summary judgment on plaintiff’s bad
faith claims. (DMSJ [78] at 16.) Plaintiff claims he is owed damages
pursuant to O.C.G.A. §§ 33-4-6, 13-6-11 and 13-11-8.
1.
O.C.G.A. § 33-4-6
In order to recover penalties and attorney’s fees for a refusal
to pay an insurance claim, it must be shown that the refusal was in
‘bad faith.’ O.C.G.A. § 33-4-6. ‘Bad faith’ means “any frivolous and
unfounded refusal in law or in fact to comply with demand of the
policyholder to pay according to the terms of the policy.” Interstate
Life
&
Accident
Ins.
Co.
v.
Williamson,
220
(1964)(internal quotations and citations omitted).
Ga.
323,
324-25
As the provision
for damages and attorney fees constitute a penalty, it must be
strictly construed and “[t]he right to such recovery must be clearly
shown.”
Id. at 325 (quoting Love v. Nat’l Liberty Ins. Co., 157 Ga.
259, 271 (1924)).
Further, the burden is on the insured to show that
such a refusal was made in bad faith.
Id.; Moon v. Mercury Ins. Co.
of Georgia, 253 Ga. App. 506, 507 (2002).
As the Court has found that defendant Liberty properly denied
plaintiff’s claim, it obviously cannot be liable for acting in bad
18
AO 72A
(Rev.8/82)
faith in doing so.
Further, even had the Court held that there were
disputed issues of fact that precluded summary judgment on liability,
plaintiff still could not prevail on a bad faith claim as defendant
had reasonable grounds to deny the claim.
See United States Fid. &
Guar. Co. v. Woodward, 118 Ga. App. 591, 594 (1968)(“If there is any
reasonable ground for the insurer to contest the claim, there is no
bad faith.”)
All three of the adjusters who reviewed plaintiff’s
claim found that the damage to his property was not covered by the
policy because of the rotting siding and window sills. (Monaghan Aff.
[78] at ¶ 6; Gill Dep. [57] at 36; Aucoin Dep. [73] at 20.) Defendant
Liberty reasonably relied on the evaluations of their adjusters in
denying the claim.
2.
O.C.G.A. §§ 13-6-11 and 13-11-8
Plaintiff’s claim for damages pursuant to O.C.G.A. §§ 13-6-11 and
13-11-8 are barred by Georgia law because O.C.G.A. § 33-4-6 provides
the exclusive remedy for an insurer’s bad faith refusal to pay a
claim.
Howell v. S. Heritage Ins. Co., 214 Ga. App. 536, 536
(1994)(holding that the “[insured’s] claim for attorney fees and
expenses of litigation under O.C.G.A. § 13-6-11 [was] not authorized
[because] the penalties contained in O.C.G.A. § 33-4-6 are the
exclusive remedies for an insurer’s bad faith refusal to pay insurance
proceeds”).
Therefore, plaintiff may not properly bring a claim for
damages pursuant to these other statutory sections based on Liberty’s
19
AO 72A
(Rev.8/82)
decision to deny his insurance claim.
For these reasons, the defendant’s motion for summary judgment
with respect to plaintiff’s claim for bad-faith damages under the
above Georgia statutes is also GRANTED.
CONCLUSION
For
the
above
reasons,
the
defendant’s
Motion
for
Summary
Judgment [78] is GRANTED.
SO ORDERED, this 27th day of September, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
20
AO 72A
(Rev.8/82)
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