The Cincinnati Insurance Company v. Stone et al

Filing 69

OPINION AND ORDER granting 41 Motion for Summary Judgment; denying 44 Motion for Summary Judgment; denying 45 Motion for Partial Summary Judgment. Signed by Judge Michael L. Brown on 9/10/2020. (dob)

Case 1:19-cv-02153-MLB Document 69 Filed 09/10/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
The Cincinnati Insurance
Company,
Case No. 1:19-cv-02153
Plaintiff,
Michael L. Brown
United States District Judge

v.
Tina Stone, individually and as
next friend of Devon Stone, and
Dustin Gerow,
Defendants.
________________________________/

OPINION & ORDER
This insurance coverage dispute arises out of a car accident
involving Defendants Tina Stone and Dustin Gerow. Defendant Stone
sued Defendant Gerow in state court for negligently causing the accident.
Plaintiff The Cincinnati Insurance Company then brought this
declaratory action, claiming it is not required to provide coverage or a
defense to Defendant Gerow for the state court lawsuit. Plaintiff and
Defendants now cross-move for summary judgment. (Dkts. 41; 44; 45.)
The Court grants Plaintiff’s motion and denies Defendants’ motions.

Case 1:19-cv-02153-MLB Document 69 Filed 09/10/20 Page 2 of 21

I.

Background
A.

The Accident

Jumptastic, Inc. is a company that rents inflatable party items such
as bouncy castles and slides. (Dkt. 58 ¶ 5.) Defendant Gerow worked
there from October 2013 through November 2018. (Dkt. 60 ¶ 8.) On
February 7, 2016, he was on his way to pick up inflatables for the
company when he crashed into Defendant Stone’s vehicle. (Id. ¶¶ 3, 18–
19, 23.) Defendant Gerow was driving a Jeep Cherokee at the time. (Dkt.
58 ¶¶ 9–11.) Defendant Stone suffered injuries as a result of the crash.
(Dkt. 60 ¶ 4.)
B.

The Insurance Policy

At the time of the accident, the Jeep driven by Defendant Gerow
was covered under an insurance policy (“Policy”) issued by Plaintiff to
Jumptastic. (Id. ¶ 58; see Dkt. 53-1 ¶¶ 10–11.) The Policy includes the
following 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”.
....

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We have the right and duty to defend any “insured” against a
“suit” asking for such damages . . . . However, we have no
duty to defend any “insured” against a “suit” seeking damages
for “bodily injury” or “property damage” . . . to which this
insurance does not apply.
(Dkt. 1-5 at 30.)
The Policy includes several coverage conditions, including a notice
requirement and a legal papers requirement:
Section IV – Business Auto Conditions
....
A. Loss Conditions
....
2. Duties in the Event of Accident, Claim, Suit or Loss
We have no duty to provide coverage under this policy
unless there has been full compliance with the following
duties:
a. In the event of “accident”, claim, “suit” or “loss”, we
or our representative must receive prompt notice of
the “accident” or “loss”. Include:
(1) How, when and where the “accident” or “loss”
occurred:
(2) The “insured’s” name and address; and
(3) To the extent possible, the names and addresses
of any injured persons and witnesses.

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The requirements for giving notice of a claim, if not
satisfied by the “insured” within 30 days of the date of
the “accident”, may be satisfied by an injured third party
who, as the result of such “accident”, has a claim against
the “insured”. However, in this event, notice of a claim
given by an injured third party must be mailed to us.
b. Additionally, you and any other involved “insured”
must:
....
(2) Immediately send us copies of any request,
demand, order, notice, summons or legal paper
received concerning the claim or “suit”.
(Id. at 16, 36.)1 The Policy then says “[n]o one may bring a legal action
against us under this Coverage Form until . . . [t]here has been full
compliance with all the terms of this Coverage Form.” (Id. at 37.)

An endorsement appears to have amended Section IV(A)(2)(a) by adding
the following language:
1

This condition applies only when the “accident” or “loss” is
known to:
1. You, if you are an individual;
2. A partner, if you are a partnership;
3. An executive officer or insurance manager, if you are a
corporation; or

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C.

The State Court Lawsuit

On March 13, 2017, Defendant Stone filed a state court action
against Defendant Gerow for negligently causing the car accident. (Dkt.
53-1 ¶ 1.) On April 18, 2017, Defendant Gerow acknowledged service and
answered the complaint. (Id. ¶¶ 3–4.) On September 6, 2018, almost a
year and a half later, a Jumptastic representative sent Plaintiff an
“Automobile Loss Notice” form explaining that Defendant Gerow was
involved in a car accident on an “unknown” date. (Dkts. 41-3; 53-1 ¶ 5.)
This was Plaintiff’s first notice of the accident. (Id.) Defendant Stone’s
first communication with Plaintiff about the accident was on
December 14, 2018, when her attorney sent Plaintiff a one-paragraph
letter “providing . . . notice of claim for the subject car crash that occurred
on February 7, 2016.” (Dkt. 45-6; see Dkts. 45-1 at 6, 12; 50 at 40–41, 47–
48; 59 at 11; 60 ¶ 44.) Plaintiff first heard from Defendant Gerow about
the accident in April 2019. (See Dkts. 1 ¶ 23; 44-1 at 12; 50 at 41–42, 47–
48; 57 at 7; 59 at 10.) Plaintiff did not receive the underlying lawsuit

4. A member or manager, if you are a limited liability
company.
(Dkt. 1-5 at 28.) None of the parties even mention this endorsement,
much less rely on it.
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papers until sometime that same month, when Defendant Gerow’s
attorney forwarded them along. (See Dkts. 44-6; 53-1 ¶ 8; 57-3 at 5;
60 ¶ 67.).
D.

Procedural History

Plaintiff filed this federal action in May 2019, seeking a declaration
that Plaintiff “has no duty or obligation to defend Defendant Gerow
[or Jumptastic] or pay any judgment rendered against either Defendant
Gerow or Jumptastic as a result of the claims and damages which are the
subject of the underlying lawsuit.” (Dkt. 1 at 15.) Plaintiff says this
declaration is warranted because, in violation of the Policy’s coverage
conditions, Plaintiff did not receive “prompt” notice of the car accident or
“immediate[]” copies of the underlying lawsuit papers. In late 2019, all
three parties filed cross-motions for summary judgment. (Dkts. 41; 44;
45.)
II.

Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that a court

“shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material if

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“it might affect the outcome of the suit under the governing law.”
W. Grp. Nurseries, Inc. v. Ergas, 167 F.3d 1354, 1360 (11th Cir. 1999).
A factual dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. at 1361.
The party moving for summary judgment bears the initial burden
of showing a court, by reference to materials in the record, that there is
no genuine dispute as to any material fact. Hickson Corp. v. N. Crossarm
Co., 357 F.3d 1256, 1260 (11th Cir. 2004). The nonmoving party then has
the burden of showing that summary judgment is improper by coming
forward with “specific facts” showing a genuine dispute. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately,
there is no “genuine issue for trial” when “the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.”
Id. “[T]he 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48.
Throughout its analysis, the court must “resolve all reasonable
doubts about the facts in favor of the non-movant, and draw all justifiable

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inferences in his or her favor.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993). “It is not the court’s role to weigh conflicting
evidence or to make credibility determinations; the non-movant’s
evidence is to be accepted for purposes of summary judgment.” Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
III. Discussion2
A.

The Policy’s Notice Requirement

Plaintiff claims the Policy provides no coverage for the state court
lawsuit because Defendants failed to promptly tell Plaintiff about the car
accident in violation of the Policy’s notice requirement. “Under Georgia
law, notice provisions expressly made conditions precedent to coverage
are valid and must be complied with unless there is a showing of

Pursuant to Local Rule 56.1, the Court generally disregards any
evidence or facts not included — in the required format — in the parties’
statement of material facts. See LR 56.1, NDGa.; Reese v. Herbert, 527
F.3d 1253, 1268 (11th Cir. 2008) (compliance with Local Rule 56.1, which
the Eleventh Circuit holds in “high esteem,” is “the only permissible way
. . . to establish a genuine issue of material fact”); see also Chavez v. Sec’y
Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (“[D]istrict court
judges are not required to ferret out delectable facts buried in a massive
record.”). The Court also declines to “distill every potential argument
that could be made based upon the materials before it on summary
judgment. . . . [T]he onus is upon the parties to formulate arguments.”
Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).
2

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justification.” OneBeacon Am. Ins. Co. v. Catholic Diocese of Savannah,
477 F. App’x 665, 670 (11th Cir. 2012).

In other words, “when an

insurance policy includes a notice requirement as a condition precedent
to coverage, and when the insured unreasonably fails to timely comply
with the notice requirement, the insurer is not obligated to provide a
defense or coverage.” Forshee v. Employers Mut. Cas. Co., 711 S.E.2d 28,
31 (Ga. Ct. App. 2011). “Issues about the adequacy of notice or the merit
of an insured’s alleged justification are generally ones of fact, but in a
particular case a court may rule on them as a matter of law.” Catholic
Diocese of Savannah, 477 F. App’x at 671. “The insured has the burden
of showing justification for a delay in providing notice.” Id. at 670.
1.

Whether the Notice Requirement is a Condition
Precedent

The Policy here includes the following notice requirement: “In the
event of ‘accident’, claim, ‘suit’ or ‘loss’, we or our representative must
receive prompt notice of the ‘accident’ or ‘loss’.” This requirement is a
condition precedent to coverage because (1) it appears under the headings
“Business Auto Conditions,” “Loss Conditions,” and “Duties in the Event
of Accident, Claim, Suit or Loss”; (2) the Policy says Plaintiff has “no duty
to provide coverage . . . unless there has been full compliance with” the
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requirement; and (3) the Policy also says “[n]o one may bring a legal
action against us under this Coverage Form until . . . [t]here has been full
compliance with all the terms of this Coverage Form.” See State Farm
Fire & Cas. Co. v. LeBlanc, 494 F. App’x 17, 21 (11th Cir. 2012) (“[T]he
notice provisions appear under sections entitled, ‘General Conditions,’
and a subsection entitled, ‘Duties in the Event of . . . Claim or Suit.’ This
language clearly expresses the intention that the notice provisions be
treated as conditions precedent to coverage.”); Lankford v. State Farm
Mut. Auto. Ins. Co., 703 S.E.2d 436, 438–39 (Ga. Ct. App. 2010) (policy
“required notice as a condition precedent to recovery of insurance
benefits” where it said “there is no right of action against [the insurer]
until all the terms of this policy have been met”).3 Defendants must

See also Mt. Hawley Ins. Co. v. AIKG, LLC, 2019 WL 3526506, at *7
(N.D. Ga. July 29, 2019) (“the Policy language expressly makes the notice
provision a condition precedent to coverage” because (1) the provision
“appears under sections entitled, ‘Conditions’ and a subsection entitled,
‘Duties in the Event of Occurrence, Claim or Suit’” and (2) “the Policy
provides that the failure to [provide prompt notice] could result in denial
of coverage under the policy”); Progressive Mountain Ins. Co.. v. Bishop.,
790 S.E.2d 91, 94 (Ga. Ct. App. 2016) (“notice provision . . . creates a
condition precedent to coverage” if the policy states “[w]e may not be sued
unless there is full compliance with all the terms of this policy”).
3

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therefore “show that [they] complied with the notice provision or
demonstrate justification for failing to do so.” Bishop, 790 S.E.2d at 95.4
2.

Whether Defendants Complied with the Notice
Requirement

No reasonable jury could find that Defendants (or anyone else)
complied with the notice provision here. The Policy required “prompt”
notice of the accident. “Georgia precedent shows that ‘prompt’ has the
same meaning as terms like ‘as soon as practicable’ and ‘immediate.’”
LeBlanc, 494 F. App’x at 22. When used as an adjective, “prompt” also
“denotes responding instantly or immediately.” Id. The notice here
cannot be described as any of these things. It is undisputed that Plaintiff
was not told about the accident until September 6, 2018. That was more
than two and half years after the accident, about eighteen months after
the underlying lawsuit was filed, and more than sixteen months after
Defendant Gerow received and answered the state court complaint.
“Courts applying Georgia law have held delays of four months to one year
preclude recovery as a matter of law.” Johnson Landscapes, Inc. v. FCCI

The Policy permits anyone to notify Plaintiff about the accident, but the
Court focuses on Defendants (and, by extension, Jumptastic) here
because that is what the parties’ briefs do and because there is no claim
that anyone else is relevant to the notice inquiry.
4

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Ins. Co., 2015 WL 10891934, at *9 (N.D. Ga. Feb. 13, 2015); see 105 R.R.
St., LLC v. Great Lakes Reinsurance (UK) SE, 2016 WL 9454412, at *3
(N.D. Ga. Dec. 21, 2016) (“Courts applying Georgia law hold that
unexcused delays as short as three months preclude recovery as a matter
of law.”). The delay here falls well beyond even the upper boundary of
that range.
Defendant Stone claims she complied with the notice provision
when she mailed her letter to Plaintiff in December 2018. She says this
is so because the notice provision does not require notice to be “prompt”
if it is mailed by “an injured third party” instead of an insured. The Court
disagrees. The notice provision includes several requirements, including
that the notice be “prompt” and that it contain certain information. The
provision then says that “the[se] requirements . . . , if not satisfied by the
‘insured’ within 30 days of the date of the ‘accident’, may be satisfied by
an injured third party . . . . However, in this event, notice . . . must be
mailed to us.” All this means is that an injured third party can provide
notice after thirty days but that, in addition to satisfying the normal
requirements, it also must ensure its notice is sent by mail. In other

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words, the injured third party must still “satisf[y]” the baseline
“requirements for giving notice,” including the promptness requirement.
A contrary reading would allow an injured third party to provide
literally any notice at any time so long as it was mailed. That would gut
the provision because the “requirements” it spells out would almost never
be requirements at all — they could always be circumvented by having
notice go through the injured third party instead of the insured. See
Milliken & Co. v. Georgia Power Co., 839 S.E.2d 306, 309 (Ga. Ct. App.
2020) (“[A]ny construction that renders portions of the contract language
meaningless should be avoided.”).
Defendant Stone’s reading would also undermine the whole point
of having a notice provision in the first place, which is “to enable the
insurer to inform itself promptly concerning the accident, so that it may
investigate the circumstances, prepare for a defense, if necessary, or be
advised whether it is prudent to settle any claim arising therefrom.”
Se. Exp. Sys., Inc. v. S. Guar. Ins. Co. of Georgia, 482 S.E.2d 433, 436
(Ga. Ct. App. 1997).5 As Defendant Stone would have it, an injured third

See also Richmond v. Georgia Farm Bureau Mut. Ins. Co., 231 S.E.2d
245, 250 (Ga. Ct. App. 1976) (“The purpose of the notice provision in an
5

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party could simply litigate his underlying suit to verdict and then mail
his judgment to the insurer for payment, even if the insurer had never
heard of the accident or the case until that point. This would be a striking
departure from well-established insurance practice, not to mention
common sense. Ultimately, Defendant Stone’s interpretation is both
illogical and foreclosed by the plain language of the Policy. The Court
declines to adopt it. See Auldridge v. Rivers, 587 S.E.2d 870, 872 (Ga. Ct.
App. 2003) (assigning a particular meaning to contractual language
where “no other meaning makes sense and no other interpretation is
plausible”); Brown v. Kennedy, 267 S.E.2d 503, 505 (Ga. Ct. App. 1980)
(declining to adopt a contractual “interpretation [that] would be
illogical”).6

insurance policy is to enable an insurer to investigate promptly the facts
surrounding the occurrence while they are still fresh and the witnesses
are still available, to prepare for a defense of the action, and, in a proper
case, to determine the feasibility of settlement of the claim.”).
6
Curiously, the baseline “requirements” spelled out by
Section IV(A)(2)(a) apply to “notice of the accident or loss,” whereas the
mailing requirement for injured third parties applies to “notice of a
claim.” To the extent this language refers to different notices (which no
one argues), Defendants’ noncompliance is even more apparent because
they cannot rely on the mailing requirement to save their otherwise
deficient accident notice.
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3.

Whether
Justified

Defendants’

Noncompliance

was

Defendants have also failed to establish a reasonable justification
for their noncompliance with the notice provision. In fact, nowhere in
their briefs do they even try to offer a justification — at least not explicitly
anyway. Defendant Gerow comes closest to making an attempt. He says
(1) Defendant Stone “gave Plaintiff prompt notice of the lawsuit
immediately upon learning about Plaintiff”; and (2) “legal counsel for
Stone and legal counsel for Gerow each provided Plaintiff with notice of
the lawsuit as soon as they discovered Gerow was working on behalf of
Jumptastic at the time of the accident.” (Dkt. 44-1 at 11–12 & n.2.)
Notably, Defendant Stone does not make these arguments, even
though it is her alleged actions that largely underly them. Even more
notably, Defendant Gerow cites no evidence or authority in support of
either assertion. And the record appears to contradict both. Defendant
Gerow testified in his June 2018 deposition that he was working for
Jumptastic when the accident occurred. (Dkt. 48 at 8, 22–24.) Yet
Defendant Stone did not contact Plaintiff about the accident until
December 2018. And Defendant Gerow did not do so until April 2019.
These delays do not show diligence. See Catholic Diocese of Savannah,
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477 F. App’x at 671 (“diligence in providing notice” is relevant to any
“proposed justification” for noncompliance). Given the undisputed facts
here, no reasonable jury could find that Defendants justifiably failed to
comply with the Policy’s notice requirement.
Defendants counter that Plaintiff was not prejudiced by their
noncompliance with the notice requirement. (Dkts. 44-1 at 12 n.2; 45-1
at 16.) But this argument does not cure their otherwise unreasonable
failure to provide timely notice. For one thing, it is unclear whether
Plaintiff really did suffer no prejudice here. By the time Plaintiff heard
about the accident, the underlying lawsuit was eighteen months old and
Defendant Gerow had already been deposed. This could reasonably be
viewed as prejudicial because it “deprived [Plaintiff] of the right to
provide and to control the defense of the case” during a substantial and
critical portion of the litigation, including “investigation of the claim,
selection of counsel, theories of defense, conduct of discovery, and
[preliminary] trial strategy.” Se. Exp. Sys., 482 S.E.2d at 436 (finding
the insurer’s “rights were clearly prejudiced by the lack of notice as a
matter of law”).

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But even if Plaintiff was not prejudiced, “Georgia law is clear . . .
that an insurance company does not need to show prejudice to bar
coverage due to untimely notification.” Catholic Diocese of Savannah,
477 F. App’x at 672; see Plantation Pipe Line Co. v. Stonewall Ins. Co.,
780 S.E.2d 501, 510 (Ga. Ct. App. 2015) (“[W]hen specified notice is a
valid condition precedent to coverage, an insurer is not required to show
actual harm from a delay in notice in order to justify a denial of coverage
based on such failure of a condition precedent.”); Se. Exp. Sys., 482 S.E.2d
at 436 (“[C]ontrary to appellants’ contentions, appellee was not required
to show it was prejudiced by appellants’ failure to give notice, as the
notice requirement was a condition precedent under the policy.”).
The rule instead is this: “[A]n insured that cannot demonstrate
justification for failure to comply with a notice provision that is expressly
made a condition precedent to coverage is not entitled to either a defense
or coverage, even if the insurer does not show actual harm from a delay
in notice.”

Bishop., 790 S.E.2d at 94.

17

That rule applies here and

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precludes coverage under the Policy for the state court claims. Plaintiff
is therefore entitled to summary judgment.7
B.

The Policy’s Papers Requirement

Plaintiff claims the Policy does not cover the state court lawsuit for
the additional reason that neither Defendant Gerow nor any other
insured “immediately” sent Plaintiff copies of the suit papers.
No reasonable jury could disagree.
The Policy requires an insured to “[i]mmediately send [Plaintiff]
copies of any request, demand, order, notice, summons or legal paper
received concerning the claim or ‘suit’.” This requirement is a condition
precedent to coverage for the same reasons as the notice provision:

Some Georgia courts have said that, while an insurer “is not required
to show prejudice resulting from an alleged failure to [provide timely
notice], the insurer’s failure to demonstrate prejudice may be
considered.” JNJ Found. Specialists, Inc. v. D.R. Horton, Inc., 717 S.E.2d
219, 226 (Ga. Ct. App. 2011) (emphasis altered). Other courts have
disagreed. See, e.g., Bituminous Cas. Corp. v. J. B. Forrest & Sons, Inc.,
209 S.E.2d 6, 10 (Ga. Ct. App. 1974) (“The trial court need not find
nor should it consider, the prejudice to the insurer, if any, that may have
resulted from the insure[d]’s delay.” (emphasis added)). And, applying
Georgia law, the Eleventh Circuit has held that a district court does not
“err[] in failing to consider whether [the insurer] was prejudiced by
[its insured’s] delay in giving notice.” LeBlanc, 494 F. App’x at 21–22.
Even considering Plaintiff’s prejudice here, the Court’s conclusion
remains unchanged: the Policy’s notice provision still precludes coverage
for the underlying lawsuit.

7

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it appears under the same Policy headings and is subject to the same
Policy language conditioning coverage on compliance. It is undisputed
that Plaintiff did not receive any suit papers until April 2019 at the
earliest — two years after the lawsuit was filed and more than three
years after the accident. This delay, for which Defendants offer no excuse
(much less a reasonable one), clearly violates the Policy’s immediacy
requirement and precludes coverage. See Granite State Ins. Co. v. Nord
Bitumi U.S., Inc., 422 S.E.2d 191, 193–94 & n.3 (Ga. 1992) (finding that
an insured “forwarded the suit papers to [its insurer], but not for 46
days,” and that this delay precluded coverage because the policy required
insureds to “immediately forward” papers); Advocate Networks, LLC v.
Hartford Fire Ins. Co., 674 S.E.2d 617, 619 (Ga. Ct. App. 2009)
(“four-month delay,” unaccompanied by a “reasonable explanation,”
precluded coverage because it “violated the provision of the policies
requiring that legal papers arising out of a claim or suit be immediately
forwarded to Hartford”); Brooks v. Forest Farms, Inc., 357 S.E.2d 604,
608 (Ga. Ct. App. 1987) (“It is clear that, whatever the permissible
parameters of ‘immediate’ notice, those parameters have been exceeded

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[by] Appellee’s failure to give notice to appellant until some 24 days after
its receipt of the [papers].”).8
Because no reasonable jury could find that Defendants (or any other
relevant person) complied with the Policy’s notice and papers
requirements, Defendants are not entitled to coverage for the state court
lawsuit and Plaintiff is entitled to summary judgment.

The Court

therefore issues the declaration sought by Plaintiff, namely, that
“Cincinnati has no duty or obligation to defend Defendant Gerow
[or Jumptastic] or pay any judgment rendered against either Defendant
Gerow or Jumptastic as a result of the claims and damages which are the
subject of the underlying lawsuit.” (Dkt. 1 at 15.)

See also Johnson & Bryan, Inc. v. Republic-Franklin Ins. Co., 2017 WL
6597930, at *2, 4 (N.D. Ga. Nov. 20, 2017) (“72-day delay between
receiving the [demand] letter and providing notice to Defendant”
precluded coverage because plaintiff offered no “viable excuse” for
violating the policy’s requirement that insureds “immediately send us
copies of any . . . legal papers received”); Holbrook-Myers Co. v.
Transportation Ins. Co., 354 F. Supp. 2d 1349, 1354–55 (N.D. Ga. 2005)
(“[A] delay of four months in forwarding a copy of the complaint and of
44 days in forwarding the intent to sue letter . . . . violated the policy
provision requiring immediate forwarding to [the insurer] of copies of any
legal papers received in connection with a claim or suit.”). Plaintiff’s
prejudice is also irrelevant here because the papers requirement is a
condition precedent to coverage. See Johnson & Bryan, 2017 WL
6597930, at *4 n.4 (“Because the [suit papers] provision here is expressly
a condition precedent, the Court does not consider prejudice.”).
8

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IV.

Conclusion
The Court GRANTS Plaintiff The Cincinnati Insurance Company’s

Motion for Summary Judgment (Dkt. 41).

The Court DENIES

Defendant Dustin Gerow’s Motion for Summary Judgment (Dkt. 44) and
Defendant Tina Stone’s Motion for Summary Judgment (Dkt. 45).
SO ORDERED this 10th day of September, 2020.

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