Korean Community Presbyterian Church v. Maryland Casualty Company

Filing 52

ORDER denying as moot 35 Motion to Strike ; denying as moot 42 Motion to Strike ; granting in part and denying in part 29 Motion for Summary Judgment; granting 31 Motion for Partial Summary Judgment. Signed by Judge Thomas W. Thrash, Jr on 8/25/2015. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KOREAN COMMUNITY
PRESBYTERIAN CHURCH,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:14-CV-3690-TWT

MARYLAND CASUALTY
COMPANY,
Defendant.

OPINION AND ORDER

This is an insurance coverage dispute. It is before the Court on the Defendant’s
Motion for Summary Judgment [Doc. 29], the Plaintiff’s Motion for Partial Summary
Judgment [Doc. 31], the Plaintiff’s Motion to Strike or Disregard Portions of Justin
Girard’s Errata [Doc. 35], and the Plaintiff’s Motion to Strike Exhibit 1 to the
Defendant’s Response to the Plaintiff’s Statement of Material Facts [Doc. 42]. For the
reasons stated below, the Defendant’s Motion for Summary Judgment is GRANTED
in part and DENIED in part. The Plaintiff’s Motion for Partial Summary Judgment is
GRANTED. The Plaintiff’s Motions to Strike are both DENIED as moot.

T:\ORDERS\14\Korean Community Presbyterian\msjtwt.wpd

I. Background
The Defendant, Maryland Casualty Company, issued the Plaintiff, Korean
Community Presbyterian Church, a commercial property insurance policy covering
the property located at 2534 Duluth Highway, Duluth, Georgia.1 On December 28,
2012, the Plaintiff sustained loss to its property originating from a toilet on the second
floor of its education building.2 There was a clog in the trap of the toilet.3
Additionally, the fill valve within the toilet broke. This allowed water to flow
continuously into the bowl of the toilet which overflowed.4 After the damage was
discovered the next day, a plumber, Marco Taveras, ran an auger to remove any
obstruction from the bowl of the toilet.5 The auger does not go beyond the bowl of the
toilet.6 After the obstruction was removed and the water went down in the bowl, Mr.
Taveras changed the fill valve and the flapper in the toilet.7 Mr. Taveras testified that
water did not reverse flow from the toilet, but came from the tank into the bowl and
1

Pl.’s Statement of Facts ¶¶ 1-2.

2

Id. ¶¶ 3-4.

3

Taveras Dep. at 16.

4

Id. at 15.

5

Id.

6

Id. at 16.

7

Id. at 15.

T:\ORDERS\14\Korean Community Presbyterian\msjtwt.wpd

-2-

then back out of the bowl because the clog stopped the water from continuing its
normal flow.8
The insurance policy at issue here excludes from coverage damage caused by
“[w]ater that backs up or overflows from a sewer, drain or sump” if “Back-Up of
Sewers and Drains” is listed as excluded in the declarations section.9 The declarations
section of the policy does not exclude coverage for back-ups of sewers and drains, but
instead provides a $25,000 limit on coverage in those instances.10 The Defendant
determined that the coverage limitation applied in this case. The Plaintiff contests that
determination, arguing that the limitation did not apply and that it is entitled to the full
amount of its damages as well as damages for the insurer’s bad faith failure to pay.
Both parties move for summary judgment on the issue of whether the coverage
limitation applies. The Defendant also moves for summary judgment on the Plaintiff’s
bad faith claim.

8

Id. at 17.

9

Pl.’s Statement of Facts ¶ 20.

10

Id. ¶ 18.

T:\ORDERS\14\Korean Community Presbyterian\msjtwt.wpd

-3-

II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show no genuine issue of material fact exists and
that the movant is entitled to judgment as a matter of law.11 The court should view the
evidence and any inferences that may be drawn in the light most favorable to the
nonmovant.12 The party seeking summary judgment must first identify grounds to
show the absence of a genuine issue of material fact.13 The burden then shifts to the
nonmovant, who must go beyond the pleadings and present affirmative evidence to
show that a genuine issue of material fact does exist.14 “A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be a sufficient
showing that the jury could reasonably find for that party.”15
III. Discussion
The parties both move for summary judgment on the issue of whether the policy
limitation on back-ups from sewers or drains applies here. Both agree that the

11

FED. R. CIV. P. 56(a).

12

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).

13

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

14

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

15

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).

T:\ORDERS\14\Korean Community Presbyterian\msjtwt.wpd

-4-

resolution of this matter turns on a seemingly simple question: Is a toilet a drain?
Although no Georgia court has addressed the issue specifically, the District of
Maryland, construing a similar policy to the policy here, under rules of construction
similar to Georgia’s, found that “[t]he definition of a ‘drain’ is: a means (such as a
pipe) by which usually liquid matter is drained . . . [and r]elying on this definition,
common sense dictates that a toilet is not a drain.”16 That court also noted that
Merriam Webster’s Dictionary defines “toilet” as a “bathroom fixture consisting of
a bowl, usually with a detachable, hinged seat and lid, and a device for flushing with
water, used for defecation and urination.”17 The Court finds the reasoning in Drutz
persuasive and decides that a toilet is not a drain. That does not mean, however, that
the Plaintiff’s claim necessarily succeeds – the clog at issue must have been in the
toilet and not in the attached drain for that to be true.
The policy at issue here excludes from coverage “[w]ater that backs up or
overflows from a sewer, drain or sump” if “Back-Up of Sewers and Drains” is listed
as excluded in the declarations section.18 The declarations section of the policy does
not exclude coverage for back-ups of sewers and drains, but instead provides a
16

Drutz v. Scottsdale Ins. Co., No. WMN-10-3499, 2012 WL 665984, at
*3 (D. Md. Feb. 28, 2012) (internal citations omitted).
17

Id.

18

Pl.’s Statement of Facts ¶ 20.

T:\ORDERS\14\Korean Community Presbyterian\msjtwt.wpd

-5-

$25,000 limit on coverage in those instances.19 Here, the clog was in the toilet, not in
the drain.20 The plumber specifically testified that he used an auger to remove the clog
and that the auger does not go past the bowl of the toilet.21 Because the clog was not
in the drain, but instead in the toilet, no water backed up or overflowed from a drain.
The coverage limitation of the policy therefore does not apply. Accordingly, the
Plaintiff’s motion for partial summary judgment should be granted, and the
Defendant’s motion for summary judgment on the issue of the policy interpretation
should be denied. The amount of damages due to the Plaintiff is still in dispute and
remains to be tried.
The Defendant moves for summary judgment on the Plaintiff’s claim for bad
faith failure to pay. The Georgia Court of Appeals has held that where a specific issue
is one of first impression in Georgia courts, the insurer has a right to litigate the legal
question and is therefore not subject to a bad faith claim.22 Because the issue of
whether a toilet is a drain has not been specifically addressed, the Defendant had a

19

Id. ¶ 18.

20

Taveras Dep. at 15-16.

21

Id.

22

Aetna Fire Underwriters Ins. Co. v. Crawley, 132 Ga. App. 181, 183

(1974).
T:\ORDERS\14\Korean Community Presbyterian\msjtwt.wpd

-6-

right to litigate without being subject to a claim for bad faith. The Defendant’s motion
for summary judgment on the bad faith claim should therefore be granted.
The Plaintiff also makes two motions to strike or disregard evidence. The first
is a motion to strike or disregard portions of the errata to Justin Girard’s deposition.
The errata at issue related to the Plaintiff’s motion to compel, on which this Court has
already ruled. The first motion to strike is therefore denied as moot. The second
motion to strike or disregard relates to Exhibit 1 to the Defendant’s response to the
Plaintiff’s statement of facts. Exhibit 1 deals with the question of ownership of the
property at issue. Because the Defendant does not dispute that the Plaintiff has an
insurable interest in the property at issue and because this Court finds no need to
consider the exhibit at issue in ruling on the motions for summary judgment, the
second motion to strike should also be denied as moot.
IV. Conclusion
For the reasons stated above, the Defendant’s Motion for Summary Judgment
[Doc. 29] is GRANTED in part and DENIED in part. The Plaintiff’s Motion for
Partial Summary Judgment [Doc. 31] is GRANTED. The Plaintiff’s Motion to Strike
or Disregard Portions of Justin Girard’s Errata [Doc. 35] is DENIED as moot. The
Plaintiff’s Motion to Strike Exhibit 1 to the Defendant’s Response to the Plaintiff’s
Statement of Material Facts [Doc. 42] is DENIED as moot.

T:\ORDERS\14\Korean Community Presbyterian\msjtwt.wpd

-7-

SO ORDERED, this 25 day of August, 2015.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

T:\ORDERS\14\Korean Community Presbyterian\msjtwt.wpd

-8-