Dunn et al v. Columbia National Insurance Company

Filing 103

ORDER: The Dunn Plaintiffs Motion for Summary Judgment 70 is GRANTED; Columbias Motion for Summary Judgment 85 is DENIED; and Pattersons Partial Motion for Summary Judgment 59 is granted in part and denied in part. It is GRANTED as to Patterson s breach of contract claim (Count II) and Columbias duty to cooperate affirmative defense and is DENIED as to Columbias mitigation affirmative defense. This case will proceed on Plaintiffs negligent or bad faith failure to settle claim (Count III) and damages. The parties shall submit a proposed consolidated pretrial order within 30 days of the entry of this Order. Trial will then be scheduled by later order. Signed by Judge Richard W. Story on 9/30/2019. (dgr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
AMY DUNN, individually and as the
natural parent of DANIELLE
DEMONBREUN, JAMES DUNN, and
RONALD CURTIS PATTERSON,
Plaintiffs,

CIVIL ACTION NO.
2:17-CV-0246-RWS

v.
COLUMBIA NATIONAL
INSURANCE COMPANY,
Defendant.
ORDER
This case is before the Court on Plaintiff Ronald Curtis Patterson’s Partial
Motion for Summary Judgment [59]; the Dunn Plaintiffs’ Motion for Summary
Judgment [70]; and Defendant’s Motion for Summary Judgment [85]. Also before
the Court is a Motion for Leave to File Supplemental Brief Regarding Pending
Motions [100], which was filed in support of Patterson’s Motion for Summary
Judgment. After reviewing the record, the Court enters the following Order.

Background
This is an insurance coverage dispute where the insurance company did not
bring a declaratory judgment action. As a result, the Court must now determine
coverage, as well as whether Columbia National Insurance Company (“Columbia”)
breached its duty to defend and negligently failed to settle the underlying case.
The below facts are undisputed.
On June 7, 2013, Patterson hit members of the Dunn family with a truck as
they were walking out of a Walmart in Gainesville, Georgia. (Patterson’s SMF,
Dkt. [59-28] ¶ 44.) Surveillance video recorded the events, Patterson was fully at
fault, and each Dunn Plaintiff suffered bodily injury as a proximate result of the
accident. (Id. ¶¶ 45-48.) At the time of the accident, Patterson was driving a
Chevy pickup truck owned by Lawson Air Conditioning and Plumbing, Inc.
(“Lawson”), his employer. (Id. ¶¶ 1, 49, 50.)
Lawson was covered by two liability insurance policies with Columbia, a
“Primary Policy” with limits of $1 million and an “Umbrella Policy” with limits of
$3 million. (Id. ¶ 52.) Patterson’s truck is a “covered auto” under the Primary
Policy. (Id. ¶ 53.) The Primary and Umbrella Policies define an insured as
“[a]nyone else while using with your permission a covered auto you own.” (Id. ¶
54; Insurance Policy, Dkt. [24-4] at 47, 75.) The Primary Policy also provides that
2

Columbia has “the right and duty to defend any ‘insured’ against a ‘suit’ asking for
[] damages…” (Def.’s SMF, Dkt. [85-1] ¶ 16; Insurance Policy, Dkt. [24-4] p. 47.)
Accordingly, Lawson promptly reported the accident to Columbia and otherwise
complied with all conditions precedent to coverage. (Patterson’s SMF, Dkt. [5928] ¶ 54.) After opening an investigation into Lawson’s claim on June 11, 2013,
Columbia’s adjuster sent a letter to Patterson on August 22, 2013, denying
coverage on the sole basis that he was “not a permissive driver at the time of the
accident.” (Id. ¶¶ 58, 80; August Denial of Coverage Letter, Dkt. [59-16].)
On April 7, 2014, the Dunn family filed a lawsuit in the State Court of Hall
County, Georgia against Patterson and Lawson (“underlying lawsuit”), of which
Columbia received prompt and actual notice. (Id. ¶¶ 87-88.) In response,
Columbia retained counsel to defend Lawson but did not retain counsel for
Patterson or file a declaratory judgment action. (Id. ¶¶ 92-93.) Patterson went into
default because he did not file an answer. (Def.’s SMF, Dkt. [85-1] ¶ 37.)
After discovery was underway, on December 9, 2014, Columbia’s outside
coverage counsel filed a Motion for Entry of Appearance as Counsel for Columbia
in the underlying lawsuit, which the trial court denied. (Patterson’s SMF, Dkt. [5928] ¶¶ 97, 99; Def’s Resp. to Patterson’s SMF, Dkt. [68-1] ¶ 97.) Thereafter, on
January 22, 2015, Columbia moved to intervene in the underlying lawsuit, which
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the trial court also denied. (Id. ¶ 100, 102.) About a year later, the Dunn family
settled their claim against Lawson for $125,000 through mediation. (Id. ¶¶ 103-4;
Def.’s SMF, Dkt. [85-1] ¶¶ 38-39.) At the mediation, Columbia considered
settling the claims against Patterson but did not. (Def.’s SMF, Dkt. [85-1] ¶ 39.)
Ultimately, the suit proceeded with Patterson as the sole defendant. (Patterson’s
SMF, Dkt. [59-28] ¶¶ 104.)
Columbia then hired attorneys for Patterson in January 2016 and sent him
two reservation of rights letters on February 26, 2016, and March 1, 2016. (Id. ¶¶
105-6; Def.’s SMF, Dkt. [85-1] ¶ 42.) The letters reserved the right “to assert
additional grounds for denial of coverage, should it be determined, at any time, for
any reason, the policy does not provide coverage for you,” and “to file a
declaratory judgment action to obtain the judicial determination of the coverage
issues involved.” (Id. ¶¶ 109, 111; ROR Letter, Dkt. [59-21].) They also stated
that “[n]othing which Columbia National Insurance Company may have done prior
to this Notice of Reservation of Rights, and nothing that Columbia National
Insurance Company does hereafter should be construed as a waiver of any right or
defense of Columbia National Insurance Company under the policy.” (Id. ¶ 113.)
Attorneys filed an Entry of Appearance stating they were retained to defend

4

Patterson on February 29, 2016. Patterson, however, rejected Columbia’s defense
and did not meet with the attorneys, as requested. (Id. ¶¶ 107, 119-120.)
Despite Patterson’s rejection, Columbia continued to defend him until they
were removed by the trial court for lack of authority to appear on behalf of
Patterson on May 12, 2017. (State Court Order, Dkt. [68-8] (“Because the
evidence before the Court suggests there is no authority for counsel’s
representation of [Patterson], and because counsel has been unable to produce or
prove the authority under which they appear, Counsel for [Patterson] shall be
removed.”)) In the meantime, on August 18, 2016, plaintiffs in the underlying
action offered to settle the claims against Patterson for $1,125,000. (Def.’s SMF,
Dkt. [85-1] ¶ 48.) Patterson was informed of the offer, but Columbia ultimately
rejected it. (Id. ¶¶ 49, 53.)
Trial did not proceed well for Patterson. As a sanction for failing to attend
his deposition and a court-ordered hearing, Patterson was not “permitted to
question witnesses, put forth argument, present an opening statement at trial, or
otherwise oppose the Plaintiff’s showing as to damages.” (Id. ¶¶ 55, 58; State
Court Order, Dkt. [68-10] at 11.) The jury returned a verdict against Patterson for
$11,500,000. (Def.’s SMF, Dkt. [85-1] ¶ 62.)

5

Patterson now alleges Columbia breached its contractual duty to defend him
in the underlying suit and negligently failed to settle the claims against him. As
co-Plaintiffs, the Dunns bring a judgment creditors direct action claim against
Columbia for payment on the judgment they hold against Patterson, whom they
argue is an insured under Lawson’s policies. As affirmative defenses, Columbia
argues Patterson breached his contractual duty to cooperate and that he failed to
mitigate damages. Patterson now moves for summary judgment on his breach of
contract claim, as well as Columbia’s mitigation and cooperation defenses. The
Dunns move for summary judgment on their claim. Finally, Columbia moves for
summary judgment on Patterson’s breach of contract and failure to settle claims, as
well as the Dunns’ claim.
Discussion
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “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.” “The moving party
bears ‘the initial responsibility of informing the . . . court of the basis for its
motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it
6

believes demonstrate the absence of a genuine issue of material fact.’” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the moving party makes such a
showing, the burden shifts to the non-movant, who must go beyond the pleadings
and present affirmative evidence to show that a genuine issue of material fact does
exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome of
the suit under the governing law. Id. An issue is genuine when the evidence is
such that a reasonable jury could return a verdict for the non-moving party. Id. at
249-50.
Furthermore, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable to
the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th
Cir. 2002). But, the court is bound only to draw those inferences that are
reasonable. “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.” Allen v.
Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If the evidence is
7

merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249–50 (internal citations omitted); see also
Matsushita, 475 U.S. at 586 (once the moving party has met its burden under Rule
56(a), the nonmoving party “must do more than simply show there is some
metaphysical doubt as to the material facts”).
Finally, the standard of review for cross-motions for summary judgment
does not differ from the standard applied when only one party files a motion, but
simply requires a determination of whether either of the parties deserves judgment
as a matter of law on the facts that are not disputed. Am. Bankers Ins. Group v.
United States, 408 F.3d 1328, 1331 (11th Cir. 2005). The Court must consider
each motion on its own merits, resolving all reasonable inferences against the party
whose motion is under consideration. Id. And while “[c]ross-motions for
summary judgment will not, in themselves, warrant the court in granting summary
judgment unless one of the parties is entitled to judgment as a matter of law on
facts that are not genuinely disputed,” cross-motions may be probative of the
absence of a factual dispute where they reflect general agreement by the parties as
to the controlling legal theories and material facts. United States v. Oakley, 744
F.2d 1553, 1555–56 (11th Cir. 1984).

8

II.

Breach of Contract (Count II)
Under Georgia law, an insurer faced with a decision regarding how to handle

a claim of coverage while a possible insured faces a lawsuit has three options: (1)
defend the claim, thereby waiving its policy defenses and claims of non-coverage;
(2) deny coverage and refuse to defend, avoiding the expense of litigation, but
exposing the insurer to penalties for breach of contract; or (3) defend under a
reservation of rights, preserving the option of litigating and ultimately denying
coverage. See e.g., Hoover v. Maxum Indem. Co., 730 S.E.2d 413 (Ga. Ct. App.
2012).
Patterson argues that by sending the August 22, 2013 denial of coverage
letter, Columbia chose the second option—to deny coverage and refuse to defend.
Thus, Patterson focuses his arguments on the duty to defend standard and urges the
Court that in applying that standard, Columbia breached its duty. Columbia, on the
other hand, argues it is entitled to summary judgment because, since Patterson
never requested a defense, no duty arose. Next, Columbia argues that it had no
duty under the duty to defend standard. Finally, Columbia argues, even if the duty
was triggered, it was cured by Columbia’s eventual attempt to defend Patterson.
The Court finds Columbia breached its duty to defend Patterson for several
reasons. First, the denial letter was effective because a permissive user under an
9

automobile policy is not required to request a defense. Indeed, contrary to the nonautomobile insurance cases cited by Defendant, the Georgia Court of Appeals has
repeatedly held that under O.C.G.A § 33–7–15 an automobile liability insurer that
receives actual notice of a lawsuit has a duty to defend a permissive user, even if
the permissive user did not give notice or “request” a defense. 1 See Canal Indem.
Co. v. Greene, 593 S.E.2d 41, 44 (Ga. Ct. App. 2003) (citing Mahone v. State
Farm, 373 S.E.2d 809 (Ga. Ct. App. 1988)).
This is consistent with the contract language in Lawson’s insurance policies,
which states that to trigger a duty to defend there must be full compliance with the
duty to “[i]mmediately send [Columbia] copies of any request, demand, order,
notice, summons or legal paper received concerning the claim or ‘suit.’” (Def.’s
Resp. to Patterson’s MSJ, Dkt. [68] at 7.) Nothing about that language requires
Patterson to “elect” or “request” a defense. The contract does not require
permissive users or additional insureds to notice Columbia. Similarly, it does not
require each insured to notice Columbia.

While it appears Georgia has not spoken on this issue directly, many states have
expressly found that in a situation such as this where the insurance company denied
coverage before a lawsuit is filed against the insured, the insured is relieved of the
obligation to give the insurer timely notice of the lawsuit. See, e.g., Davis v. Criterion
Ins. Co., 754 P.2d 1331, 1332 (Alaska 1988); St. Paul Fire & Marine Ins. Co. v. Vigilant
Ins. Co., 724 F. Supp. 1173, 1181 (M.D. N.C. 1989), aff'd, 919 F.2d 235 (4th Cir. 1990).
1

10

It is undisputed Columbia had actual notice of the Dunns’ suit against
Lawson and Patterson. In general, it is an undisputed fact that Lawson, the
insured, “promptly reported the [a]ccident to Columbia and otherwise complied
with all conditions precedent to coverage.” (Patterson’s SMF, Dkt. [59-28] ¶ 55.)
Likewise, it is undisputed that “Columbia received prompt and actual notice” of
the underlying suit. (Id. ¶¶ 87-88.) Further, Columbia’s executive acknowledged
that the courtesy copy it received was sufficient to determine defense of the suit.
(Hubbard Depo., Dkt. [77-1] at 55:19-57:12.) Accordingly, Columbia’s notice
argument fails, and any conditions precedent were satisfied.
Turning to the contract’s duty to defend provision, the Primary Policy
provides that Columbia has “the right and duty to defend any ‘insured’ against a
‘suit’ asking for [] damages…” (Def.’s SMF, Dkt. [85-1] ¶ 16; Insurance Policy,
Dkt. [24-4] at 47.) Defendant maintains Patterson is not an insured. The Primary
Policy defines an insured as “[a]nyone else while using with your permission a
covered ‘auto.’” (Insurance Policy, Dkt. [24-4] at 47.) The truck Patterson hit the
Dunns with is a covered auto.
Thus, coverage turns on whether Patterson had Lawson’s permission to use
the vehicle. At the time of the accident, both parties now agree Patterson was
using his truck personally. While it is undisputed Patterson had permission to use
11

the truck for work purposes, Columbia argues he did not have permission at the
time of the accident because of Lawson’s written policy that trucks “will not be
used for personal use at any time, unless approval has been granted by Lawson Air
Conditioning and Plumbing management.” (Lawson Manual, Dkt. [59-10] at 5.)
Determination of Patterson’s coverage, however, is not necessary for
Columbia to have breached its duty to defend. Instead, Columbia had a duty to
defend Patterson “[i]f the facts as alleged in the complaint even arguably bring the
occurrence within the policy’s coverage, the insurer has a duty to defend the
action.” City of Atlanta v. St. Paul Fire & Marine Ins. Co., 498 S.E.2d 782, 784
(Ga. Ct. App. 1998). Indeed, “[t]o excuse the duty to defend the petition must
unambiguously exclude coverage under the policy…Where the claim is one of
potential coverage, doubt as to liability and insurer’s duty to defend should be
resolved in favor of the insured.” Penn-America Ins. Co. v. Disabled American
Veterans, 490 S.E.2d 374, 376 (Ga. 1997).
Here, the complaint in the underlying lawsuit alleges Lawson “entrusted” the
truck to Patterson, who was operating the truck “within the scope and course of his
employment with [Lawson]” at the time of the accident. (Underlying Lawsuit
Complaint, Dkt. [59-17] ¶¶ 9, 46.) While it was ultimately concluded that Lawson
was operating the truck outside the scope of his work duties, if he had been
12

operating within his work duties, there would be no dispute that he was insured
because Columbia’s sole defense to coverage is that Patterson’s personal use of the
truck was not approved pursuant to Lawson’s manual. Columbia attempts to
narrow the scope of the inquiry to say that the permissive use language does not
inquire into the employee’s scope of employment. The Court does not find this
argument persuasive for the reasons discussed above. Its argument that the word
“entrust” in the complaint does not refer to the date of the accident is similarly
unconvincing.
Ultimately, Columbia breached its duty to defend because the complaint
showed potential or arguable coverage. This is for the reasons articulated above as
well as the undeniable circumstances currently before the Court. The Court found
the coverage issue complicated, and fact-specific. An entire next section of this
Order is devoted to the analysis on the issue. That in itself indicates that there was
clear doubt as to liability and that the duty to defend should have been resolved in
favor of Patterson.
Columbia also attempted to correct its breach by providing Patterson
representation nearly two years after the suit was filed. Columbia appears to argue
that this cures their breach. While an insurer can change its mind if it issued a
“qualified denial letter” and provided a prompt defense, Columbia issued an
13

unqualified denial letter and provided a defense almost two years after the suit was
filed. See Drawdy v. Direct Gen. Ins. Co., 586 S.E.2d 228 (Ga. 2003). Further,
unlike the more diligent insurers in Travelers Indemnity Co. v. Williams, 2011 WL
13176104 (N.D. Ga. March 16, 2011), Columbia never filed a declaratory
judgment action in this case. Instead of curing the breach, the Court views
Columbia’s later attempt to defend Patterson as further confirmation that Columbia
blatantly ignored Georgia’s strong policy preference for defending possible
insureds while filing a declaratory judgment to clarify coverage. See e.g.,
Richmond v. Georgia Farm Bureau Mut. Ins. Co., 231 S.E.2d 245 (Ga. Ct. App.
1976).
Thus, Patterson’s Partial Motion for Summary Judgment [59] is GRANTED
as to this issue, and Columbia’s Motion for Summary Judgment [85] is similarly
DENIED.
III.

Judgment Creditors’ Direct Action Against Debtor’s Insurance
(Count VI)

The Dunn Plaintiffs bring a direct action against Columbia to partially
satisfy their judgment from the underlying suit against Patterson.2 To succeed,

The Court notes the overlap in Patterson and the Dunns’ briefing on the issue of
coverage. Columbia argues the Dunns do not have standing to argue waiver and estopple.

2

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Patterson must be an insured under Lawson’s policies with Columbia. Plaintiffs
submit various theories of coverage for the Court to consider. First, the Dunn
Plaintiffs argue Columbia is estopped from disputing coverage because it initially
did not defend Patterson. Second, Plaintiffs argue Columbia did not effectively
reserve its rights to deny coverage by representing Patterson under a unilateral
reservation of rights without seeking a declaratory judgment. Third, Plaintiffs
argue under Eleventh Circuit precedent, Lawson’s internal policy does not affect
Patterson’s permission to use the truck as a matter of law. Finally, Plaintiffs argue
Columbia has failed to create an issue of fact as to Patterson’s permission to use
the truck.
The Court agrees with Plaintiffs that Columbia has failed to create an issue
of fact, and therefore need not consider their additional arguments. All the same,
for clarity, the Court will briefly address each in turn. First, Defendant is correct
that it is not estopped from challenging Patterson’s coverage, despite denying
coverage and refusing to defend, because coverage was the basis for the denial.
See Hoover, 730 S.E.2d at 418. Further, the Dunns’ argument that Columbia lost

While the Court briefly addresses those arguments for the sake of clarity, they are not
material to the Court’s findings on this issue. Further, because coverage is relevant to
some of Patterson’s claims, the Court will consider both parties’ arguments collectively
on this issue.
15

the right to file a declaratory judgment action is not applicable here absent such an
action.
Second, it appears Columbia represented Patterson under a unilateral
reservation of rights for about a year and never filed a declaratory judgment action.
Despite Columbia’s more recent contentions otherwise, it is undisputed that
Patterson denied Columbia’s representation by never accepting either reservation
of rights letter and declining to meet with the attorneys. Further, when the insured
refuses to consent to a defense under a reservation of rights, it is considered a
unilateral reservation of rights and the insurer must, among other things, “seek
immediate declaratory relief,” to prevent a waiver of its claim of noncoverage.
Nationwide Mut. Fire Ins. Co. v. Meeks, 5:04-CV-101, 2006 WL 8435514, at *6
(S.D. Ga. Mar. 29, 2006) (citing Richmond, 231 S.E. 2d at 248). Patterson moves
to file a supplemental brief on this issue in light of a recent decision from the
Georgia Court of Appeals, Southern Trust Ins. Co. v. Mountain Express Oil Co.,
2019 WL 2366367 (Ga. Ct. App. June 5, 2019). Columbia objects for a myriad
of reasons. Because the Court finds Columbia has not met its evidentiary burden,
the Court need not consider Patterson’s supplemental briefing and his Motion
[100] is consequently DENIED.

16

At bottom, the primary issue all parties urge this Court to determine is
whether Patterson was a permissive user under Lawson’s policies. Columbia
argues the internal company policy bars Patterson from Coverage. Plaintiffs
disagree, first arguing the policy should not be considered, and next maintaining
even under the policy, Patterson had permission.
Under Georgia law, Patterson had permission to use the truck if “a
reasonable person could conclude under the circumstances that the use of the
insured vehicle fell within the scope of the permission granted by the
policyholder.” Allstate Ins. Co. v. Spillers, 579 S.E.2d 876, 878 (Ga. Ct. App.
2003) (internal citations omitted). Relevant factors include possession of the keys
and the lack of reprimand. See Id. Further, insurance contracts should be
construed liberally in favor of the insured, even when there is no ambiguity in the
language. See Roland v. Georgia Farm Bureau Mut. Ins. Co., S.E.2d 623, 625 (Ga.
1995).
Here, Patterson worked as a plumber’s foreman for Lawson. At the onset of
his employment, he was given a truck, and acknowledged in writing that he
received Lawson’s Employment Practices and Policy Manual (“manual” or “policy
H”), which states that: “Company trucks will not be used for personal use at any
time, unless approval has been granted by [Lawson] management.” (Def.’s SMF,
17

Dkt. [85-1] ¶¶ 3, 5.) Lawson gave Patterson the keys to the truck, which he placed
on his personal keyring and always kept in his possession. (Patterson’s SMF, Dkt.
[59-28] ¶ 2.) Throughout his time at Lawson, Patterson drove his truck full-time
and parked it at his home on weekends and holidays. (Id. ¶ 7.) His use of the truck
included driving from home to work and to job sites, as well as driving to grocery
stores, at least on occasion, and driving on the weekends. (Id.) Lawson liberally
provided Patterson with a company gas card that he kept in his possession and used
unquestioned to purchase all gas for the truck, including use on the weekends and
for personal errands. (Id. ¶¶ 8-13.) He was also allowed to keep the truck and use
the gas card while he was laid off from work, which Patterson’s supervisor
confirmed was typical protocol at Lawson. (Id. ¶¶ 23-24, 36.) Two other foremen
received trucks with the same parameters. (See Aff. of William Blankenship, Dkt.
[59-8] ¶¶ 2-4; Aff. of Dusty Bryson, Dkt. [59-9] ¶¶ 3-5.)
This undisputed evidence supports Plaintiffs’ contention that Patterson was
given this truck as a perk of his job, including personal use. In fact, Patterson was
told by his future manager, Matthew Poole, in his interview that “if you’ll come on
board with us at the lower pay, I’ll go ahead and give you a truck off the bat.” (Id.
¶¶ 2, 40.) Further, Lawson’s former vice president, Jeff Dale, who was still a
manager at Lawson when Patterson was hired, testified that it was Lawson’s
18

practice “to allow employees to use the trucks Lawson assigned to them for
personal errands so [they] could attract and retain skilled workers.” (Id. ¶ 3.)
Patterson’s direct manager, Poole, also testified that he did not enforce the policy.
(Poole Depo., Dkt. [59-7] at 78:22-79:11.)
What is more, Patterson points to several instances where Lawson
supervisors knew he was using his truck personally. While Poole testified that he
does not remember the instances involving him, it is undisputed that Patterson
informed Ottie Rich, Lawson’s field supervisor, that he dented the truck’s bumper
while helping his dad over the weekend. (Id. ¶ 14.) Rich responded, “not a
problem, don’t worry about it.” (Id.) Two other plumber’s foremen at Lawson
around the time of Patterson’s employment also used their trucks for personal
errands and were never reprimanded. (See Aff. of William Blankenship, Dkt. [598] ¶¶ 2-4; Aff. of Dusty Bryson, Dkt. [59-9] ¶¶ 2, 4, 5.)
The testimony of Mike Marien is particularly revealing. Marien worked as a
manager at Lawson for 16 years from 2002 through 2017, encompassing
Patterson’s tenure. (Marien Aff., Dkt. [88-1] ¶ 2.) Marien’s testimony is like the
others in that he was given a truck for business and personal use. (Id. ¶3-17.) He
also testified that Lawson formalized its process for managerial approval for
personal use after the incident with Patterson in June 2013. (Id. ¶¶ 17-19.)
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Columbia does not argue against Marien’s testimony in the summary judgment
briefing.
Instead, Colombia, argues none of the above determines coverage because
per the manual, Lawson has a “prohibition on personal use.” Of course, this is not
an unconditional prohibition as was the case in the cases it cites in support of its
position. See Select Ins. Co. v. Register, 384 S.E. 2d 238, 240 (Ga. Ct. App. 1989)
(employer expressly told employee he could not use the vehicle “for any personal
purpose.”); Massachusetts Bay Ins. Co. v. Wooten, 450 S.E.2d 857, 859 (Ga. Ct.
App. 1994) (“Without question, the insurer presented evidence indicating that the
decedent was expressly forbidden to use company vehicles for personal
transportation.”) Here, the manual allows person use if it is managerially
approved. Further, without an express prohibition on personal use, Plaintiff’s
implied permission argument is also not misplaced. See Am. Emp. Ins. Co. v.
Johns, 178 S.E.2d 207, 209 (Ga. Ct. App. 1970)
Plaintiffs argue the manual’s provision is so weak, that it should be treated
like an internal company policy against driving while intoxicated. Relying on
Great Am. All. Ins. Co. v. Anderson, 847 F.3d 1327 (11th Cir. 2017), Plaintiffs
correctly argue that under current Georgia law, a finding of permissive use under a
policy only requires permission for the purpose served by the vehicle, not the
20

operational aspects. Id. at 1332. That said, personal and work-related use is a
complicated distinction that goes more to the purpose served than the operation of
the vehicle. Further, unlike the line of cases discussed in Anderson, such an
overarching holding is not necessary here because Patterson did not violate an
express prohibition.
Cutting through Columbia’s other arguments, it is apparent that Columbia
has not provided evidence that creates a genuine issue of material fact for trial.
Specifically, Columbia repeatedly argues “Lawson did not give any employee
permission to use a marked Lawson vehicle for personal use without prior approval
from Lawson Management,” and that “Lawson regularly enforced its prohibition
on personal use of marked company vehicles.” (Vince Davis Depo., Dkt. [68-3] at
80:22-81:12; Dec. of Debbie Davis, Dkt. [68-4] ¶¶ 3-5.) True, Lawson’s president
and chief financial officer (“the Davises”) testified that they were not aware of any
instances of unapproved personal use of company vehicles until this accident and
would reprimand employees who violated it, but Columbia has not provided a
single incident where an employee was so reprimanded before the accident and
does not argue that the rule was ever enforced against Patterson. (Vince Davis
Depo., Dkt. [68-3] at 14:24, 79:20-23; Dec. of Debbie Davis, Dkt. [68-4] ¶ 6.)
Further, nothing in the manual requires the president and CFO’s awareness of
21

personal use approval. All the Davises’ testimony indicates is that they were not
aware of what was happening at the lower level of their company. Importantly, it
does not dispute the ample evidence presented by the Plaintiffs.
Columbia’s final piece of material evidence is that Patterson did not request
approval to use his truck for personal use on the day of the accident. (Poole Depo.,
Dkt. [65] at 81:11-13.) This argument falls similarly short because the manual does
not specify how or when to obtain managerial approval for personal use.
Columbia would like the Court to view it as a formal system, going up to the top of
the company, and requiring specific approval for each request of personal use. If
that were the case, Columbia would have an argument, but there is no evidence to
suggest such a system.
Instead, the evidence strongly suggests widely accepted personal use of
vehicles. Even discounting the evidence disputed by Columbia, there remains the
strong undisputed evidence, discussed above, that personal use was an approved
perk of the job. Missing from Columbia’s case is any evidence that Patterson did
not have general approval to drive his truck for personal errands, or even that
Lawson did not regularly approve employees for personal use. Further, it is
undisputed that Dale was a supervisor at the time Lawson hired Patterson, and that

22

he gave employees permission to use trucks personally as a perk of the job. (Dale
Aff., Dkt. [59-3] ¶¶ 2-6.)
Finally, it is not lost on the Court that Columbia represented Patterson in an
incident involving his Lawson truck in 2012. The situations are largely similar in
nature except that the Dunns’ injuries were more severe. It is difficult to
understand why Columbia would defend Patterson in that suit but failed to even
seek a declaratory judgment to coverage for the case currently before the Court.
In any event, the Court finds that there is no genuine issue of material fact
and that as a matter of law, Patterson had Lawson’s permission to use the truck to
go to Walmart on the night of the accident. As a permissive user, Patterson is
covered by both policies and the Dunns are entitled to recover as judgment
creditors. Their Motion for Summary Judgment [70] is therefore GRANTED and
Columbia’s [85] is similarly DENIED as to this issue.
IV.

Breach of Duty to Cooperate

Columbia argues as an affirmative defense that even if Patterson is an
insured under the policies, he forfeited coverage when he refused to cooperate with
Columbia in the investigation and defense of the claim and the underlying action.
Patterson moves for summary judgment on Columbia’s defense, arguing that he
did not have a duty to cooperate, and even if he did, Columbia waived such a
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policy defense when it denied coverage for the sole reason that Patterson was not a
permissive user.
The Court finds that Patterson had no duty to cooperate, and thus need not
consider Patterson’s waiver argument. While the policies provide that an insured
is required to cooperate with Columbia in the defense of any lawsuit brought
against the insured, an insurer that “refuses to defend based upon a belief that a
claim against its insured is excluded from a policy’s scope of coverage does so at
its peril, and if the insurer guesses wrong, it must bear the consequences, legal or
otherwise, of its breach of contract.” S. Guar. Ins. Co. v. Dowse, 605 S.E.2d 27, 29
(Ga. 2004). As Patterson asserts and Columbia fails to contradict, once an insurer
wrongfully denies coverage and refuses to defend, the insured will no longer be
obligated to comply with his or her own obligations under the policy. See
generally Windt, 1 Insurance Claims and Disputes § 3:10 (6th ed. 2019). Thus,
Patterson was not bound by the policies’ provisions governing cooperation when
Columbia requested his cooperation after refusing to defend. C.f. id.; Dowse, 605
S.E.2d at 29 (“In Georgia, an insurer that denies coverage and refuses to defend an
action against its insured, when it could have done so with a reservation of its
rights as to coverage, waives the provisions of the policy against a settlement by
the insured,” a provision of the cooperation clause) (internal citations omitted).
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Further, Columbia does not present evidence that it reasonably requested
Patterson’s cooperation before the underlying lawsuit.
Simply put, where an insurer refuses to defend an action on the ground that
the claim was not within the coverage of the policy, it is in no position afterward to
claim that the insured failed to cooperate or assist in a defense that he was denied.
Absent representation from Columbia, Patterson was left to defend the suit as a pro
se litigant. His shortcomings in doing so are not a defense against liability on the
policy. Further, as discussed in the breach of contract section of the Order, once
Columbia breached the contract by refusing to defend, Patterson was not required
to accept Columbia’s defense once it changed its mind. This is especially true in
situations such as here where accepting Columbia’s defense would have been
against his best interests. Accordingly, Patterson’s Partial Motion for Summary
Judgment [59] is GRANTED as to this issue.
V.

Negligent and Bad Faith Failure to Settle (Count III)
Columbia moves for summary judgment on Patterson’s negligent and bad

faith failure to settle claim. Under Georgia law, if a liability insurer negligently or
in bad faith refuses an offer to settle a claim within policy limits and a judgment in
excess of policy limits is entered against the insured, then the insured may recover
the excess judgment. Cotton States Mut. Ins. Co. v. Brightman, 580 S.E.2d 519,
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521 (Ga. 2003). To prevail on a negligent or bad faith failure to settle claim, an
insured must prove that “the insurer had a duty to settle the case, breached that
duty, and [the] breach proximately caused damages to the insured beyond the
damages, if any, contemplated by the insurance contract.” Delancy v. St. Paul Fire
& Marine Ins. Co., 947 F.2d 1536, 1546–47 (11th Cir.1991) (applying Georgia
law). More specifically, an insurer may be liable for damages for failing to settle
for the policy limits if an ordinarily prudent insurer would consider that choosing
to try the case rather than accept an offer to settle within the policy limits would
be taking an unreasonable risk that the insured would be subjected to a judgment in
excess of the policy limits. See Baker v. Huff, 747 S.E.2d 1, 6 (Ga. Ct. App. 2013)
(citations, punctuation, and quotation marks omitted). The purpose of a bad faith
claim is to prevent an insurer from “gambl[ing] with the funds of its insured by
refusing to settle within the policy limits.” Id. at 1547 (internal quotation marks
omitted).
Here, while Columbia was representing Patterson under a unilateral
reservation of rights, plaintiffs in the underlying suit offered to settle their claims
against him for $1,125,000, well within the policy limits of 4 million. Columbia
rejected the offer because it believed a trial verdict could be held to $125,000 or
less, the amount paid in settlement to Lawson. Columbia also considered
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Patterson’s questionable coverage as a relevant factor, but of course, failed to file a
declaratory action to clarify the issue. Finally, as Plaintiffs have pointed out, there
is sufficient concern that Columbia did not diligently conduct a reasonable
investigation to discover relevant facts. See Baker, 747 S.E.2d at 6 (investigative
diligence is a factor a jury can consider in determining negligent or bad faith
failure to settle).
Instead, Patterson proceeded to trial, at which an award of $11.5 million was
return to the Dunns. The seemingly exorbitant award should not have come as a
surprise. Patterson admitted fault immediately, and the Dunns were entitled to
both past and future medical expenses, as well as compensatory damages such as
past and future pain and suffering. Further, unlike Lawson, Patterson was exposed
to punitive damages. Yet, Columbia appears to have relied on the Dunns’ past
medical expenses when considering the settlement offer. (Columbia’s MSJ, Dkt.
[85] at 20-1.)
The Court finds that Columbia is not entitled to summary judgment on this
issue because the facts are sufficient to permit a jury to find that no ordinarily
prudent insurer would have declined to accept the offer. See Fortner v. Grange
Mut. Ins. Co., 686 S.E.2d 93 (Ga. 2009) “[I]t is for the jury to decide whether the
insurer, in view of the existing circumstances, has accorded the insured the same
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faithful consideration it gives its own interest.” It must judge Columbia’s actions
in the light of “all the relevant circumstances including [Columbia’s] knowledge of
facts relevant to liability and damages on the claim; [Columbia’s] diligence in
conducting a reasonable investigation to discover the relevant facts; and the terms
of the settlement offer and any response by [Columbia].” Baker, 747 S.E.2d at 6.
Accordingly, Columbia’s Motion for Summary Judgment [85] is DENIED as to
this issue.
VI.

Damages

The parties’ remaining arguments concern damages. The Court has
determined that Columbia breached its contractual duty to defend Patterson in the
underlying suit. As a result, Patterson had no duty to cooperate. Further, the Court
decided the refusal was based on the erroneous assumption that Patterson was not
within the policy coverage. And finally, a jury must decide whether Columbia
negligently or in bad faith failed to settle the claims against Patterson. The parties
raise final arguments as to damages the follow from these findings.
Because Columbia unjustifiably refused to defend Patterson in the
underlying suit, Columbia is liable for the underlying judgment up to the policy
limits, as per the contract, plus the cost of defending the suit and any amount in
excess of the policy limits found to be caused by the wrongful denial of a defense.
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See Leader Nat. Ins. Co. v. Kemp & Son, Inc., 380 S.E.2d 458, 459 (Ga. 1989).
Thus, because the underlying judgment exceeds the policy limits, Patterson could
be entitled to the full judgment if a jury determines that the failure to defend
proximately caused the excess judgment. See Id.
Similarly, if the jury determines Columbia is liable for a failure to settle,
Patterson is entitled “as a matter of law to recover damages equal to the amount by
which the judgment exceeds policy coverage.” Camacho v. Nationwide Mut. Ins.
Co., 188 F. Supp. 3d 1331, 1348 (N.D. Ga. 2016), aff'd, 692 Fed. Appx. 985 (11th
Cir. 2017) (citing Cotton States Mut. Ins. Co. v. Brightman, 568 S.E.2d 498, 502
(Ga. Ct. App. 2002), aff'd, 580 S.E.2d 519 (Ga. 2003); see also Fortner v. Grange
Mut. Ins. Co., 686 S.E.2d 93, 94 (Ga. 2009) (When “an insurer acts in bad faith in
refusing to settle a personal claim against its insured within the policy limits, it
may be liable for an excess judgment entered against its insured.”).
On the issue of damages, Patterson moves for summary judgment on
Columbia’s mitigation affirmative defense; Columbia moves for summary
judgment on Patterson’s punitive damages and attorney fees claims; and the Dunns
argue they are entitled to the remaining policy limits plus post-judgment interest.

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a. Patterson’s Recovery
Columbia seeks to lessen recovery by arguing Patterson failed to mitigate his
damages and argues that it is not liable to him for punitive damages or attorney’s
fees. The Court considers each in turn.
i. Mitigation
Patterson moves for summary judgment on Columbia’s affirmative defense
that Patterson failed to mitigate his damages. Specifically, Columbia argues
Patterson failed to mitigate his damages because Patterson rejected the defense
offered by Columbia, he was sanctioned by the trial court for failure to participate
in the trial, and he did not hire an attorney.
It is true that under Georgia Law, a plaintiff has a duty to mitigate his
damages brought in contract and tort. O.C.G.A §§ 13-6-5; 51-12-11. That said,
Columbia’s first argument, regarding its attempt to defend Patterson two years
after the suit began, fails for the same reasons discussed in Section II of this Order.
Additionally, here, Patterson makes a compelling argument that not only did he
have no duty to accept Columbia’s representation after they denied coverage but
doing so would have put him in a worse position because he would have waived all
claims the Court has just found he rightfully had against Columbia. (See
Patterson’s MSJ, Dkt. [59] at 21-25.) Thus, as a matter of law, Patterson did not
30

fail to mitigate the judgment from the underlying suit by rejecting Columbia’s
change-of-heart defense.
Columbia’s other mitigation arguments are issues for the jury. See Knox v.
Cessna Aircraft Co., CIV A 405CV-131 HL, 2007 WL 2874228, at *12 (M.D. Ga.
Sept. 26, 2007) (“Whether a plaintiff acted reasonably to mitigate his damages is
typically a question of fact for the jury…”). First, Columbia argues that Patterson
could have mitigated his damages by participating in the litigation and avoiding
sanctions. It is undisputed that Patterson failed to attend his deposition and appear
at a court-ordered hearing. As a result, the trial court precluded Patterson from
offering argument or evidence of damages at trial. (State Court Order, Dkt. [6810] at 11. (Patterson was not “permitted to question witnesses, put forth argument,
present an opening statement at trial, or otherwise oppose the Plaintiff’s showing
as to damages.”))
Patterson contends that he was justified in choosing not to participate in the
litigation because he was wrongly denied representation by Columbia and could
not afford an attorney. Thus, proceeding pro se without any legal knowledge and
admitting liability, Patterson saw no reason to participate because he did not
understand there was anything to litigate. Further, because Patterson pled guilty to
driving under the influence, he was already exposed to punitive damages. See
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O.C.G.A. § 51-12-5, 1(f). It is also relevant that as a pro se litigant in a case with
tragic facts, Patterson might not have been able to lessen the judgment against him
even if he were permitted to argue damages. While the Court is sympathetic to
Patterson’s argument, because the sanction for his decision not to participate in the
litigation was a bar on contesting damages, the Court cannot say as a matter of law
that he did not fail to mitigate the damages against him. Thus, it is left to the jury
to determine if Patterson acted reasonably to mitigate his damages by failing to
participate in the underlying litigation.
Second, Columbia’s argument that Patterson should have mitigated his
damages by hiring a lawyer is also an issue for the jury. As previously discussed,
it is well-settled law that, when an insurer refuses to defend, the insurer transfers to
the insured the power to conduct its own defense, and if it is later determined that
the insured was entitled to coverage, the insured will be entitled to full
reimbursement of the insured’s litigation costs. See Dowse, 605 S.E.2d at 29.
Patterson, like every civil litigant, is entitled to represent himself. Of course, legal
representation might have lessened the damages in this case. Thus, the Court finds
that this issue should be presented to a jury.
Accordingly, Patterson’s Motion for Summary Judgment [59] is DENIED
as to this issue. That said, Columbia is prohibited as a matter of law from arguing
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that Patterson failed to mitigate damages by refusing to accept Columbia’s too-late
defense. The issues remaining are whether Patterson failed to mitigate damages by
failing to hire an attorney and incurring sanctions precluding him from contesting
damages at trial.
ii. Punitive Damages
Columbia moves for summary judgment on Patterson’s Punitive Damages
claim (Count IV). Here, punitive damages could be available on Patterson’s
failure to settle claim because it is an action in tort. See O.C.G.A. § 51-12-5.1
Columbia claims that even if Patterson can show a negligent failure to settle, its
actions do not rise to the level of culpability required for punitive damages.
To recover punitive damages, Patterson must prove “by clear and convincing
evidence that the defendant’s actions showed willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences.” O.C.G.A. § 51–12–
5.1(b). The issue of punitive damages is generally left to the jury unless the
plaintiff cannot reasonably meet the legal prerequisites to sustain such a claim.
SCQuARE Int'l, Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347, 1369 (N.D.
Ga. 2006); Tookes v. Murray, 297 Ga. App. 765, 768, 678 S.E.2d 209, 213 (2009)
(holding that the issue of “punitive damages is generally a jury question, and a jury
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may award punitive damages even where the clear and convincing evidence only
creates an inference of the defendant’s conscious indifference to the consequences
of his acts”).
Although a close question, a reasonable jury could find that Patterson’s
allegations that Columbia failed to settle the claims against him evidence an “entire
want of care which would raise the presumption of conscious indifference to
consequences.” O.C.G.A. § 51–12–5.1(b). A party acts with “conscious
indifference to consequences” where it acts “with a knowing or wilful [sic]
disregard of the rights of another.” Wildcat Cliffs Builders, LLC v. Hagwood, 663
S.E.2d 818, 821 (Ga. Ct. App. 2008). Viewing the evidence in the light most
favorable to Patterson, Columbia did not conduct a proper coverage investigation
or file a declaratory judgment action, but still denied the settlement offer because
of questions as to Patterson’s coverage, the low value of the past medical expenses,
and the settlement paid for Lawson. Given the known differences in Patterson’s
situation, such as his admitted liability and exposure to punitive damages, those
actions could amount to a conscious indifference to consequences.
Therefore, “a jury could find that [Columbia], with full knowledge that the
claim could result in an excess judgment, engaged in an unsuccessful gambit—
sacrificing [Patterson’s] interest in hopes” of getting a lower judgment at trial.”
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Noe v. Metro. Gen. Ins. Co., 1:11-CV-2026-SCJ, 2012 WL 12835879, at *7 (N.D.
Ga. Aug. 15, 2012) (citing S. Gen. Ins. Co. v. Holt, 769, 409 S.E.2d 852, 861 (Ga.
Ct. App. 1991) aff'd in part, rev'd in part on other grounds, 416 S.E.2d 274 (Ga.
1992) and vacated 421 S.E.2d 346 (Ga. 1992). The Court thus finds that Patterson
has presented sufficient evidence to survive summary judgment on this issue and
Columbia’s Motion [85] is DENIED.
iii. Attorney Fees
Columbia moves for summary judgment on Patterson’s claim for attorney
fees (Count V) under O.C.G.A. § 13-6-11. 3 Under O.C.G.A. § 13-6-11, reasonable
attorney’s fees are recoverable if a defendant “has acted in bad faith, has been
stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.”
Columbia contends Patterson cannot recover under the statute because O.C.G.A. §
33-4-6 is the “exclusive vehicle through which the insured may make a claim for
attorney fees against the insurer. Thompson v. Homesite Ins. Co. of GA, 812
S.E.2d 541, 546 (Ga. Ct. App. 2018), cert. denied (Nov. 5, 2018). Thompson,
however, concerned an insurer’s failure to pay claim. 812 S.E.2d at 546
(“[A]bsent a special relationship beyond that of insured and insurer, if such claims

Count V is brought jointly by both Patterson and the Dunns, but Columbia only moves
for summary judgment as to Patterson’s claim.

3

35

are predicated on the insurer’s failure to pay a claim, OCGA § 33–4–6 is the
exclusive vehicle through which the insured may make a claim for attorney fees
against the insurer.”). Because Patterson does not assert a claim for bad faith
refusal to pay, § 33–4–6 does not limit his ability to seek attorney fees in this
action. XL Ins. Am., Inc. v. Sto Corp., 1:07-CV-0414-CC, 2008 WL 11407266, at
*6 (N.D. Ga. Feb. 25, 2008).
Columbia next argues that even applying § 13-6-11, Patterson is not entitled
to fees because he never communicated with Columbia before this litigation was
filed without elaborating further on this conclusory argument. Patterson seeks
recovery of litigation expenses under its negligent and bad faith failure to settle
claim. “For purposes of O.C.G.A. § 13–6–11, ‘bad faith’ means bad faith in the
underlying transaction, and a plaintiff will survive a defendant’s motion for
summary judgment on this issue by presenting any evidence which establishes a
jury issue on bad faith; even slight evidence is sufficient to meet a plaintiff's
burden.” Dickerson v. Am. Nat. Prop. & Cas. Co., 3:07-CV-111(CDL), 2009 WL
1035131, at *10 (M.D. Ga. Apr. 16, 2009) (internal citations omitted). The Court
finds that Patterson has met that burden and Columbia’s Motion for Summary
Judgment [85] is DENIED.

36

a. The Dunns’ Recovery
With a judgment against Patterson that fixes his liability, and now
establishing Patterson’s right to recover under the contract, the Dunns are entitled
to the proceeds of the policy. See Smith v. Gov't Employees Ins. Co., 347 S.E.2d
245, 246 (Ga. Ct. App. 1986). Columbia concedes its responsiblility for the
underlying judgment, at least up to the limits of its policies. (See Def.’s Resp. to
Dunn Pls.’ MSJ, Dkt. [79] at 19.) Yet, it disputes the amount remaining under the
policy and maintains it is not responsible for post-judgment interest. The Dunns
disagree.
It is undisputed that the total policy limits are $4 million. Both parties also
agree that Columbia only owes the Dunns what remains of the limit. The Dunns
point to Columbia’s acknowledgment that it paid $125,000 to them to settle the
claims against Lawson. Thus, they conclude $3,875,000 of the policy remains.
Columbia, however, argues there is no record evidence of the remaining limits.
Further, Columbia argues it is not liable for post-judgment interest per the
policy language that states that Columbia will pay for the insured: “All interest on
the full amount of any judgment that accrues after entry of the judgment in any
‘suit’ against the ‘insured’ we defend…” (Policies, Dkt. [24-4] at 48, 73.) Because
it did not defend Patterson, Columbia argues it is not obligated to pay post37

judgment interest. While this is true, Georgia law is clear that Columbia “must
bear the consequences of its decision not to defend the suit and must pay. . . postjudgment interest as provided for in the policy.” Occidental Fire & Cas. of N.
Carolina v. Goodman, 793 S.E.2d 606, 610 (Ga. Ct. App. 2016) (finding the trial
court correctly awarded post-judgment interest to an insured who was unjustifiably
denied a defense despite policy language that stated that “such interest is covered
only with respect to any lawsuit against an insured which [the insurer] defends.”)
Accordingly, the Dunns are entitled to recovery of the remaining policy
limits and post-judgment interest. Because this case is proceeding to trial, the
Court will determine the details of the judgment post-trial.
Conclusion
For the foregoing reasons, the Dunn Plaintiffs’ Motion for Summary
Judgment [70] is GRANTED; Columbia’s Motion for Summary Judgment [85] is
DENIED; and Patterson’s Partial Motion for Summary Judgment [59] is granted in
part and denied in part. It is GRANTED as to Patterson’s breach of contract claim
(Count II) and Columbia’s duty to cooperate affirmative defense and is DENIED
as to Columbia’s mitigation affirmative defense.
This case will proceed on Plaintiff’s negligent or bad faith failure to settle
claim (Count III) and damages. The parties shall submit a proposed consolidated
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pretrial order within 30 days of the entry of this Order. Trial will then be scheduled
by later order.
SO ORDERED this 30th day of September, 2019.

________________________________
RICHARD W. STORY
United States District Judge

39