Jacobs v. Brown et al

Filing 96

ORDER granting in part and denying in part 70 Motion for Summary Judgment and 76 Motion for Partial Summary Judgment. The Court Orders the parties to submit to the Court, within 14 days of this Order, a joint proposed judgment. The Court also, instructs the parties to notify the Court of any additional issues outstanding. Signed by Chief Judge J. Randal Hall on 09/12/2017. (thb)

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IN THE UNITED STATES SOUTHERN AUGUSTA RENAISSANCE SOLUTIONS, OF COURT FOR THE GEORGIA DIVISION RECOVERY LLC, UNITED STATES FIRE INSURANCE COMPANY, INTERSTATE DISTRICT DISTRICT FIRE AND and CASUALTY * COMPANY, * Plaintiffs, MONROE GUARANTY COMPANY and INSURANCE FCCI * INSURANCE * COMPANY, CV 1:14-102 * Defendants, ORDER When the ago, it decision. left Court last visited this unresolved several These issues included case issues (1) a little necessary over to a a year final whether Georgia or Michigan law applied to the insurance policies in dispute, and (2) under the applicable state law, which insurer (s) bear(s) the responsibility for paying the nearly $2,5 million of disputed insurance obligations. each With the Court's permission, the parties filed summary judgment motions After reviewing the briefs, addressing these the Court finds issues. that Georgia law governs the insurance contracts in dispute and Plaintiffs and Defendants each bear some responsibility for paying the disputed coverage expenses. Thus, the Court GRANTS IN PART and DENIES IN PART the pending motions for summary judgment. (Docs. 7 0 & 7 6.) I. Background In 2009, attempting partner, the Michael to repossess Jacobs. Court Each of suit Renaissance contracted to LLC ("Renovo") the repossession); contracted Mrs. husband, deceased Mrs. LLC and with ("Nuvell") husband. by Jacobs Jacob's while business ("RRS") (the Brown Nuvell and for individually with to the defendants perform car). incident on on In behalf admitted to man In alongside behalf $450,000. and Services, repossession obtain the company Nuvell Renovo (the witnessed four and (the repossessing lender); subcontracted settled Clements defendants: individually suit suit four physically who Georgia: repossession); RRS to All LLC the Clements brought same Michael Clements, brought owned County, the company husband. Jacobs deceased Columbia conduct (the William The incident sparked two lawsuits in Recovery Solutions, with Clements, killed truck named National Auto Finance, her a Joseph Clements. Superior Renovo Brown of her Jacobs, of her liability prior to trial, and a jury awarded damages of $2.5 million. The Superior Court entered judgment against all four defendants jointly and severally. While arose the Jacobs concerning Insurance Company case insurance ("U.S. was proceeding, coverage. Fire") and however, United Interstate a dispute States First Fire and Casualty Company — insured Brown, all four Nuvell, Company ("Interstate") tortfeasors Renovo, ("Monroe") Defendants in and and this — Plaintiffs in the Jacobs RRS. FCCI in and Monroe Insurance litigation — this litigation Clements Guaranty Company insured cases: Insurance ("FCCI") only two of the tortfeasors in the Jacobs and Clements cases: RRS (directly) and Nuvell between Nuvell and (through an RRS) . Monroe during the party and Jacobs complaint indemnification agreement FCCI declined litigation. against to defend constituted bad A month prior to third-party complaint trial of court In Monroe contractually obligated to to provide response, in Jacobs defend it RRS and that and RRS Monroe Monroe's was refusal faith. trial, the state trial from the Jacobs bad to filed a third- claiming case. faith. On appeal, court Once entered summary judgment against coverage coverage the RRS severed the severed, on the Georgia the issues Court of Appeals reversed and held that Monroe had to provide coverage to RRS. On remand, the trial court allowed additional third-party defendant. RRS to add the action to this as an It also allowed RRS to join U.S. Fire and Interstate as third-party plaintiffs. removed FCCI Court invoking Monroe then diversity jurisdiction. At issue in this case is a dispute over which insurers are responsible for paying the costs of the judgment arising out of the Jacobs all four them. litigation. tortfeasors Defendants concerning Plaintiffs paid for both the defense of as well refused their to insured as the damages any part take parties and entered in the claim against litigation they had no responsibility to pay for any portion of the damages. Previously, various portions Plaintiffs. rulings: the this (Doc. (1) state of 500.2006; under court In verdict in part for that and of to granted judgment the Court filed made law. The (1) What Interstate policies Court tortfeasors if several interest state's delivered applies to law to resolve noted governed was the under the U.S. Renovo? issues and entered statute; several tortfeaser (2) jointly it apportionment also by (and thus Nuvell); disturbed even statutory in part of (3) M.C.L. Plaintiffs are not entitled to attorneys' questions: law all Georgia's entitled (4) be and summary Order, finding could not were Georgia state's motions 65.) contravention Plaintiffs two denied the FCCI policy covered RRS severally liable in Court § fees unresolved Fire (2) and What priority and allocation presented by the multiple policies and insureds? and (3) How does the applicable state law resolve the issues of priority and allocation? In response to this Court's dueling summary judgment motions. briefs, the Court now resolves order, the parties filed Having reviewed the parties' the remaining disputes. The central question before money to Plaintiffs, the and, II. Summary genuine dispute entitled 56(a). the judgment to as if so, being: Do genuine Lobby, under "if the the Inc., factual party, to appropriate any as a material matter governing evidence 477 U.S. disputes in Matsushita 574, [the 587 is only fact of if is no movant is "there and law." substantive such (internal should not Anderson, the Fed. that law, a R. Court, Civ. P. motion. Because weigh most Indus. party's] 941 the The favorable Co. v. Celotex party has to Corp. standard directed verdict, to could Liberty must view non-moving Corp., 475 justifiable inferences 1437 or the Radio United F.2d 1428, evidence Court Zenith favor." jury is States v. (11th Cir. omitted). Four 1991) The (en Court determine credibility. burden showing at 255. reference the light dispute Anderson v. (1986). punctuation and citations moving by 248 and a reasonable and must draw "all Prop., 477 U.S. The the (1986), Real 242, Elec. non-moving Parcels of banc) any how much? return a verdict for the non-moving party." in owe Facts are "material" if they could affect the outcome of suit U.S. Defendants Standard of Review is judgment Court the initial materials v. for on Catrett, summary file, 477 the U.S. judgment of basis 317, mirrors 323 the for the (1986). that of a the initial burden of proof required by either party depends on who carries the burden of proof at trial. Id. at 323. trial, When the movant showing an essential that there non-movant's F.2d 604, Kress & 606-08 Co., 477 U.S. 398 317 by merely fact non-movant must See U.S. 144 its affirmatively a Coats fact & Celotex or by necessary to Clark, (explaining and case Inc., Adickes Corp. v. 929 v. S.H. Catrett, The movant cannot meet its initial burden the non-moving the movant cannot response of to burden. a carries that there its meet its is initial burden, indeed summary judgment." burden negating party 929 F.2d at 608. "demonstrate initial v. (1970) that precludes its non-movant!s to prove 1991) that the the Clark Cir. (11th must of evidence case. Clark, bears tailor carried no and only if — non-movant issue of is declaring If — element (1986)). burden at trial. the proof at it may satisfy its initial burden in one of two ways — by negating the does not carry the burden of proof the If at trial, method the material by movant fact, a Id. When the the non-movant which the presented the material movant evidence non-movant "must respond with evidence sufficient to withstand a directed verdict motion at trial on the material Fitzpatrick, 2 F.3d at 1116. evidence a that the on material record sought to be negated." If the movant shows an absence of fact, contains fact the non-movant evidence that must was either "overlooked show or ignored" by the movant or "come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. The non- movant cannot carry its burden by relying on the pleadings or by repeating See conclusory Morris Rather, v. Ross, the allegations 663 F.2d non-movant contained 1032, must in 1033-34 respond the (11th with complaint. Cir. affidavits 1981). or as otherwise provided by Federal Rule of Civil Procedure 56. In party this action, the of motions notice the Clerk of for the summary them of the summary judgment rules, or other materials default. (Docs. 75, in curiam), are opposition has the expired, 825 for filing motions are time the and informed of the notice requirements of F.2d 822, and opposing consequences The satisfied. each judgment and Therefore, 772 gave the right to file affidavits opposition, 77.) Griffith v. Wainwright, Court (11th Cir. 1985) (per materials now in ripe for consideration. III. The Court divides this first section, Court must Nuvell, allocate the sections. $2.5 million of In the argument that the damages among RRS, and Brown as the insured tortfeasors before responsibility Interstate, opinion into two the Court addresses Defendants' Renovo, allocates Discussion for payment and FCCI as the insurers. among U.S. Fire, it Monroe, In the second section, the Court explains which state's law governs the dispute between Plaintiffs whom and and in what Defendants amount. as insurers and determines who owes The parties have character and goal action as between only arrived as (Nuvell, the Brown, an of the present the allocation co-insurers. action at action. of Defendants, allocation Renovo, of and impasse a on the fundamental amount other among which the Plaintiffs fixed damages RRS) on will of hand, four then view this damages view this tortfeasors determine the fixed amount of damages to be allocated between four co-insurers (Plaintiffs and Defendants). Defendants owed by their insured. aim to insured distinguish and the between amount of amount money of money owed to their Because Defendants insured only two of the tortfeasors in the underlying litigation, argue tortfeasors could drastically alter obligated to that while Plaintiffs insured all four, Defendants are the pay apportioning as damages the amount insurers. Thus, between damages of the they before the Court i allocates coverage expenses between Plaintiffs and Defendants as co-insurers first RRS of determine and Renovo, RRS and Nuvell, the size by apportioning Nuvell and Brown. of the Defendants coverage damages in Jacobs requires this this expenses between The Court declines Defendants' The joint and several verdict court ask Court to incurred by RRS, Nuvell, request. issued by the state trial Court to assume that each tortfeaser is equally liable for the entire judgment assessed against them. See Eidson v. Maddox, 24 S.E.2d 895, 897-98 (Ga. 1943)(noting that regardless of defendants are once any a joint and several differing "equally liable degrees to the verdict of judgment against thanks to them. plaintiffs and each to tortfeasors insured Defendants would pay, Court were, evidentiary of fault after such in different. tortfeaser to causing the the accident, Brown, was the being the RRS, if the holding between liable result and But, and liability tortfeaser example, Nuvell evidence allocate each were should Because the 50% of the judgment. reviewing that For Defendants at most, hearing, tortfeasors by equally satisfy the theoretically pay 25% of the $2.5 million judgment. only the All tortfeasors in insurance, Thus, entered, negligence, bound to discharge the several judgments"). this case have the ability, is for might its an the share look much tortfeaser most closely related to the harm, might be assigned 85% of the fault, with the the three Nuvell remaining remaining and judgment. RRS would Therefore, responsible result: 15% for of the fault distributed torfeasors. be liable Under for their insurers, covering, at most, only this of Defendants, the total would only be judgment. The a sizeable savings by Defendants. Georgia law, however, does not allow this Court apportion liability between RRS, Nuvell, Renovo, and Brown. Court among apportionment, 10% 10% of the equally is left then Monroe, U.S. Fire, to The only to apportion coverage expenses between Interstate, and FCCI as the insurers of RRS, Nuvell, is Renovo, and Brown. The Court will now explain why that so. When RRS, Defendants Nuvell, sustain a ask the Court Renovo, and contribution one who has Brown, to apportion damages they action. are asking Contribution the Court to "the is discharged a common liability or between right of burden to recover of another also liable the aliquot portion which he ought to pay or bear." Inc. Ga. v. Eidson, Zurich Am. 2001) . governed S.E.2d by however, at 897; Co., 136 F. Ins. Georgia 640 is law. (Ga. a see Supp. remedial Allstate Ct. App. Arrow 2d Exterminators, 1340, 1352 (N.D. action, thus Co. Duncan, Ins. 1995). v. Under it is 462 Georgia law, Defendants have no right to seek a contribution action between RRS, Nuvell, Defendants General such right liability and of Renovo, have Georgia stage S.E.2d Contribution 638, a 24 no right Assembly when it damages A. Eaton, seek contribution because largely, mandated In 2005, comprehensive Thomas to if that among multiple litigation. enacted and Brown. tort Who the reform by Owes How not entirely, triers of Georgia apportion at the General passing Much? abolished fact tortfeasors the Senate trial Assembly Bill Developments Apportionment and Joint and Several Liability Under O.C.G.A. 51-12-33, S.B. 64 Mercer L. Rev. 15, 18 (2012) . in § A primary goal of 3 was eliminating joint and several liability. 10 3. Emily Ruth Boness, The Effect O.C.G.A. Sections Georgia, 44 goal, to S.B. S.B. Ga. (Or Noneffect) 51-12-31 L. Rev. and 215, of the 51-12-33 229 2005 on Amendments to Liability in Joint (2009). To accomplish 3 revised § 51-12-33 of the Georgia Code. 3, § 51-12-33 merely allowed juries to Id. apportion this Prior fault and damages among multiple tortfeasors: Where an action is brought against more than one person for injury to person or property and the plaintiff is himself to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, may apportion its award of damages among the persons who are liable and whose degree of fault is greater than that of the injured party according to the degree of fault of each person. Damages, if apportioned by the trier of fact as provided in this Code section, shall be the liability of each person against whom they are awarded, shall not be a joint liablity among the persons liable, subject to any right of contribution. (emphasis juries added). After apportion to S.B. 3, fault however, and and shall not be § damages 51-12-33 required among multiple tortfeasors: (a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault. (b) Where persons an action for injury is brought against to person or property, more the than trier one of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are 11 liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution. (c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit. (d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault. In sum, the new § 51-12-33 created a mandatory apportionment scheme for damages caused by multiple tortfeasors, and, in doing verdicts. persons, case, The damages, it practically statute requires eliminated the jury joint to and (1) several identify all including the plaintiff and persons not a party to the who determine so, are the and liable degree (3) for of any each allocate of the person's the alleged fault damages in among according to their respective degree of fault. damages, causing liable (2) those parties By requiring the fact finder to apportion fault and damages at the time of trial whenever there is "one or more tortfeasors," the Legislature effectively precluded courts from issuing any joint and several verdicts, which by their definition, do not apportion fault or damages. See Eidson, 24 S.E.2d at 897-98. Furthermore, several verdict by removing the the possibility of a joint and Legislature 12 - in addition to expressly eliminating any § right damages in between tortfeasors. 51-12-33 (b) only exist because v. 725 Krebs, Brown, 464 of — eliminated Contribution of S.E.2d S.E.2d contribution any need actions joint and several 584, 587 806 (Ga. 805, against (Ga. apportioned of contribution between tortfeasors liability. 2012) McReynolds (citing Weller 1996) (" [C] ontribution will v. not lie in the absence of joint or joint and several liability.") ) . If the same trier time of it fact determines those not present a need to seek allocated to cannot and Thus, Ass'n, OCGA liability, Inc. of and fault damages and tortfeasors The claiming v. for trier the they multiple among AMEC (Ga. Ct. App. § even litigation, share" fault of paid the damages of no longer have fact judgment at has already therefore more than they "their § 51-12-33 effectively eliminated not only joint actions S.E.2d 10, 14 that action verdicts contribution apportion contribution. an several Owners in the them "their bring share." must 51-12-33 multiple Envtl. 2013) & tortfeasors but tortfeasors. also District Infrastructure, Inc., 747 ("[0]ur Supreme Court has held supplanted claims for common law contribution and apportionment."). Nevertheless, despite the intentions the plain language of the statute, of the drafters, and scholars and litigants have questioned whether § 51-12-33 really did eliminate all joint and several liability in Georgia. See Eaton, supra, at 26; Boness, supra, at 224-27; Appellee Supp. Brief, GFI Mgt. Servs., Inc. v. 13 Medina, 26, 733 2012); 329, 2012 S.E.2d 329 Appellant WL (Ga. 2012), Brief, 1620940, at GFI 2012 WL 3236340, Mgt. *7-*8 (Apr. Servs., 26, at Inc., 2012). *2 733 (July S.E.2d Specifically, scholars and litigants have questioned how § 51-12-33 could have eliminated joint and several liability preceding sections of the Code, id. Section 51-12-31 in light of the two § 51-12-31 and § 51-12-32. See states: Except as provided in Code Section 51-12-33, where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury. In its verdict, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally. Section (a) 51-12-32 Except as tortious states: provided in Code Section 51-12-33, where a does not involve moral turpitude, among several trespassers may be enforced an action had been brought against them act contribution just as if jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom. (b) If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution. In other several scheme, actions words, § liability and § even contribution 51-12-31 even in 51-12-32 in light explicitly light of § explicitly of § actions. 14 contemplates 51-12-33's contemplates 51-12-33's joint and apportionment contribution prohibition on The confusion, of §§ in the must 51-12-31 same have however, and S.B. had does not end at 51-12-32. 3 as some § To start, 51-12-33. purpose § The behind little instruction under § 51-12-33 versus when courts they was legislature and more important to this Court, when 51-12-31 keeping Second, about the plain language it revised therefore in the Code. the statutes give very must need apportion damages apportion damages not under § 51-12-31. The mandatory apportionment scheme set out in § with 51-12-33 must be starts applied one person for 51-12-31 and the "where an broad action proposition is brought injury to person or property 51-12-32, meanwhile, state § 51-12-33 by §§ 51-12-31 and that scheme more . . . ." only 51-12-32 the against "Except as provided in Code Section 51-12-33." of that than Sections they apply The recognition implies that they should apply at some point, but the broad language of § 51-12-33 — language which arguably encompasses all cases — seems preclude §§ 51-12-31 and 51-12-32 from ever applying. to Finally, the Georgia Supreme Court has offered little guidance on how to resolve S.E.2d this 584 statutory (declining all joint and several it definitely inconsistency. to decide See whether § McReynolds, 51-12-33 725 eliminated liability and deciding instead only that eliminated joint and several liability in cases where plaintiff was not at fault); Couch v. Red Roof Inns, Inc., 729 S.E.2d triers of 378 fact (Ga. to 2012) (holding consider 15 the that § conduct 51-12-33 of required intentional tortfeasors when apportioning fault and overturning the prior rule that intentional conduct prohibited a defendant from making use of comparative Medina, negligence); 733 S.E.2d 329 GFI Mgmt. Servs., Inc. v. (Ga. 2012) (declining to answer appellee's question of when a jury must apportion damages under § 51-12-33 versus when instead a opining with OCGA § where this OCGA is applies matters "OCGA § applies") . the 51-12-31 under 51-12-33 does 51-12-31 not expressly does Indeed, opinions does § not conflict not the only the of Georgia conflict with and apply sure fact Supreme OCGA § 51- 733 S.E.2d at 329. however, this damages statute which from "OCGA § Court, by a glean See Medina, This created can apportion that 51-12-33 that 12-33." only 51-12-31, § Court Court jury may cannot statutory greatly to simply quagmire ignore because the whether problems § 51-12-33 the resolution of this case. If the Court determines that damages should have been apportioned among RRS, Nuvell, Renovo, and Brown at trial according to § 51-12-33, then it must hold that Defendants have lost their opportunity to challenge court. joint and If, on did not have 51-12-33, but could damages § the according to the § other several hand, to be the entered Court apportioned instead be 51-12-31, verdict at by determines trial the trial that according the to entered jointly and severally then Defendants' request for contribution could have some validity in light of § 51-12-32(b). Upon consideration, the Court conlcudes that § 51-12-33 should 16 have applied to the underlying litigation and Defendants cannot seek an action for contribution under § 51-12-32(b). The Court's § 51-12-33. the right The language reasoning First, stems from the statutory § 51-12-33 explicitly contemplates of contribution in actions with multiple of scheme sub-section (b) states that is brought against more than one person removing tortfeasors. "[w]here an . . . apportion its award of damages .... apportioned by trier section shall be the are awarded, liable, shall § crystalizes not be 51-12-33(b) the fact as provided in Damages this Code liability of each person against whom they and shall not be O.C.G.A. of action . . . the trier of fact . . . shall the of a joint liability subject to any right of (emphasis Legislature's among added). intent to the persons contribution." This eliminate language contribution actions among multiple tortfeasors and replace such actions with a mandatory with a finding Crossing II, rule apportionment method that in of LLC, liability. See 653 S.E.2d 680, construing a would occur concurrently RadioShack Corp. 683 legislative (Ga. act, 2007) is to v. Cascade ("The cardinal ascertain legislative intent and purpose in enacting the law, the and then to give it that construction which will effectuate the legislative intent and omitted)). purpose." (internal Second, 51-12-33 multiple tortfeasors. § citations applies to and all quotations cases with The plain language of § 51-12-33 ("Where an action is brought against more than one person 17 . . . the trier of fact . . . shall apportion . . . .") captures all cases with multiple tortfeasors, when it would not 2013) apply. 341 (Ga. and ordinary meaning, ' and nothing See Deal its of the most natural English litigants to party the to procedure we must case, to claim the for 751 statutory indicates S.E.2d 337, its 'plain text in the and we must read the statutory text way, as an Third, ordinary § speaker 51-12-33 fault of others, purposes that of deflecting fault. liability are fault and even allows others not This assigned and in doing so, it further removes any need for contribution action Thus, contribution, contribution, 51-12-33 Coleman, the would."). for non-party to the case. right view reasonable language assures subsequent and introduce simultaneously, a § ("[W]e must afford the statutory text context in which it appears, in v. in against either a party or a § 51-12-33 explicitly eliminated a eliminated any need for a right to and gave no obvious time in which it would allow a contribution once liability and damages were apportioned by a trier of fact. This statutory scheme, moreover, 12-31 or § 51-12-32. continued existence While is not disrupted by § 51- both of joint and statutes several contemplate liability, the the plain text of both sections state that they only apply when § 51-12-33 does not apply. McReynolds, 725 S.E.2d at 588 (holding that § 51-12-32 "cannot trump the rules set forth in OCGA § 51-12-33 because it begins with the phrase, "except as provided in Code Section does 51-12-33'"). not apply contribution trespasser only when is under to The a section clear 51-12-32 (a) contribution . claims 429, the 432 . . contribution this ." (Ga. Ct. statute, been no . it Zurich App. . . cannot between Am. 2013) be — when § settles "the shall 51-12-33 and right continue of Ins. Co. v. however, if joint unabated Heard, and a claim 740 S.E.2d ("Based upon the plain language of joint to abolish tortfeasors the right when there apportionment of damages by a trier of fact."). situation, seeks a . . . settlement of interpreted settling of tortfeaser shall not be lost or prejudiced by or case § 51-12-33 applies of has Beyond "whenever an action is brought against one or more persons," the Court is at a loss to explain why it would ever not apply. at 740 that Deal, ("When we consider the meaning of a statute, the General meant.'" Assembly meant (internal citations what it said and omitted)). 751 S.E.2d "we presume said what Furthermore, all it the Georgia Supreme Court cases analyzing this interpretive quagmire have essentially said, "When in doubt, § 51-12-33 applies." Thus, because Defendants have provided no reason why § 51-12-33 would not apply to this case, and because the Court cannot find one independently, the Court holds that § 51-12-33 does apply or should have applied — to this case. Having determined that § 51-12-33 should have applied, what about the apportion fact that liability the and trial instead 19 court nevertheless issued a joint failed to and several verdict? right Would of must be, joint contribution and several under § verdict 51-12-32(b)? not The trigger answer is, of may their not now insured claim under § a right of Court were fact if and contribution 51-12-32(b) because doing would defeat the entire statutory regime of § 51-12-33. render the no. Defendants behalf that § to grant 51-12-33 "shall" may for Essentially, contribution action, meaningless. apportion Defendants petition a The liability ignore the apportionment it in a that damages apportionment separate, If this the loses at trier all trial and subsequent of meaning simply action. § 51-12-33 transfers the right of contribution from a subsequent action separate from the finding of liability to concurrent so would effectively command and on action Consequently, simultaneous with the finding of a liability. it also transfers the time at which defendants may exercise and defend that right. Allowing a collateral attack on the apportionment of damages after trial would do serious damage to both the General Assembly's if statutory Defendants desired scheme efficiency. Thus, to between their insured and the other tortfeasors, and judicial apportion fault they needed to defend this right at trial and on direct appeal. Defendants argue, however, that they could the joint and several verdict because they were the case and lacked standing. could not challenge the not not a party to This is disingenuous. trial 20 court's challenge decision Defendants because they willfully chose not to contribution belatedly, state appellate See Co., 736 defended the and trial now because they forced to make good on judgment. Ins. action defend their insured. court subsequent Nuvell S.E.2d 463 reserved court or Nat. their to the unexpectedly trial Finance, Ct. App. rights, appellate were, and their insurance promises by a Auto (Ga. They only seek a court LLC v. 2012). they to court's could entry of Monroe Guar. Had Defendants have petitioned follow the apportionment statute. But, even contribution if Georgia law action between did the allow Defendants tortfeasors the plain language of § 51-12-32(b) in this to bring a litigation, does not allow Defendants to change this action from solely a contribution action between coinsurers to both a contribution clearly contribution action between co-insurers action states tortfeasor who between that pays multiple tortfeasors. contribution is only off the judgment. The statute available O.C.G.A. and a to a § 51-12-32 (b) ("If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution." (emphasis added)). Thus, in order to file an action bringing for contribution, the person the action have paid off at least some portion of the judgment. v. Elkan, 199 S.E. 891, 895 (Ga. 1938) common liability, but payment 21 by See Snyder ("Before one is entitled to contribution as an affirmative remedy, a must he must show not only him of more than his share."); Eidson, 24 S.E.2d at 897 ("Before the right of contribution arises, one must have paid more than his share of a common all burden Defendants, which however, were have equally paid no bound to portion bear. of . the . ."). judgment. Plaintiffs are the only parties to have paid any portion of judgment, thus potentially, right to were to Windt, paid sue than this Claims doctrine the only fair their share. between stage, standing in the either are contribution at Insurance ("Under more for exist subrogees, Plaintiffs belongs ones who Disputes, of § subrogation 10.5 . . the if it Plaintiffs, to even as shoes of their insured. and have, Therefore, tortfeasors, only the 2 Allen D. (6th . the ed. 2017) [insurance] company is ordinarily entitled ... to step into the shoes of the insured and assert any cause of action against a third party that the insured could have asserted for his or her own benefit had the insured not been compensated by the insurer."). It does not belong to Defendants. Here, between Plaintiffs RRS, Nuvell, have not Renovo, sought a and Brown. contribution They have action sought to apportion coverage expenses between themselves and Defendants. Defendants Plaintiffs cannot had no force Plaintiffs obligation, or to desire, seek to relief that seek. Nor can right to bring Defendants assert such an action themselves. In addition to the such an action, fact that they have no they have not in fact brought such an action. 22 Defendants their have not insured or subrogated joined to themselves this into litigation all the shoes the tortfeasors against whom they would seek an apportionment of damages. have not even filed contribution. Thus, a cross-claim against of Plaintiffs They claiming they are precluded from attempting to claim contribution in the present action. The truth of themselves to blame. the matter is that their have only They have fought tooth and nail to avoid paying any portion of the judgment, and, missed Defendants opportunities to lessen in doing so, their coverage they have expenses. Had Defendants taken part in their insureds' defense, they could have damages among had tortfeasors the at opportunity the state to apportion trial level. Defendants are the only complaining now because a state appellate court found that they did, in fact, owe coverage to their insured. The public policy of Georgia is that insurers should defend their insured first and fight over coverage later. Cont'l Ins. Co., 266 S.E.2d 351, 352 (Ga. Ct. App. 1980) Co. v. Fed. Ins. ("We believe it is sound public policy to encourage insurance companies to make a swift settlement of claims. It would also be against public policy to force an insured, who has coverage under more than one policy, to institute legal action to collect payment for the loss in a case where a dispute arises between insurance carriers over their respective liabilities under the policies.") This policy aims to prevent instances exactly such as this, where the 23 insurer who Therefore, takes the least amount having made their bed, of action is rewarded. Id. Defendants must lie in it. 2. In contrast tortfeasors, however, action between standing to to a contribution Georgia co-insurers. pursue claim law clearly allows "Under Georgia claims between for a contribution law, contribution multiple an insurer has and subrogation against a co-insurer that has refused to pay its share of a loss that both at 1352 Ins. insurers owe." Arrow (citing Aetna Cas. Co., 442 S.E.2d 778 266 S.E.2d 351). Exterminators, & Sur. Co. v. (Ga. Ct. App. 136 F. Empire Fire 1994); Cont'l Supp. 2d & Marine Ins. Co., "[I]f two insurance companies are obligated to pay a loss and one company pays the entire loss or more than its pro rata share of the loss, the one so paying has a right of action against the co-insurer for a ratable proportion of the paid amount." [must have] insurer's Defendants Id. had policy." and The only condition is "that the insured a right of Id. Defendants recovery under Plaintiffs have refused are to the nonpaying co-insurers pay for any with loss, despite a finding by the state court of appeals that they owe coverage liability to their between insured. Plaintiffs Thus, and sharing a common liability. 3. 24 this Court Defendants may apportion as co-insurers At this point, in its previous the Court must acknowledge two discrepancies ruling. First, in its previous decision, the Court applied Michigan law to characterize the present action as one for subrogation. It should have applied Georgia law. The Georgia choice-of-law rules require courts to use the law of the forum state Allstate, when 462 deciding S.E.2d at questions 640. of procedure Actions of other 586 S.E.2d grounds) remedy.") 22, 25 ("[T]he Thus, this (Ga. right Court Ct. of App. 2003) have used and Gerschick v. (overruled contribution should remedy. contribution subrogation are questions of remedy and procedure. Pounds, or is Georgia a on legal law to it to determine the precise nature of the present action. Second, the Court's choice-of-law mistake led incorrectly characterize the action as one for. subrogation only. Under Michigan law, for subrogation. however, contribution, The action would be characterized as one See Allstate Ins. Co. v. Citizens Ins. Co. of Am. , 325 N.W.2d 505, law, this 509 (Mich. Ct. App. 1982). Under Georgia the action should have been defined as one for not subrogation. key to distinguishing between subrogation and contribution is understanding the substance of what each action involves. Subrogation involves asserting the rights of one party against a third party by proxy. William J. Schermer and Irvin Ins., E. Schermer, 4 Auto. Liability § 64:2 (4th ed. 2016) ("The right of subrogation is purely derivate .... Thus 25 an insurer insured cannot has Maryland no Cas. 1998)). acquire by subrogation anything to rights." Co., 65 Allan Cal. Contribution, rights personal to D. Windt, (quoting on App. Fireman's Fund which the Ins. 1279, 1292-93 other the 4th hand, involves Co. (1st Dist. asserting oneself against another party directly. supra, § 10.5 ("Contribution is v. See a remedy given to one who pays a debt that is concurrently owed by another."). Plaintiffs assert cannot the Plaintiffs their make rights cannot insured legitimate to however, are Defendants to insurers is subrogation."). Court is bound a for to assert Defendants them See id. of be one That is, to cover that cannot Defendants. insured because Plaintiffs have and their insured have no from other any right for the to satisfying a "[t]he insurer. contribution. purpose of debt forcing that was the liability of paying contribution, insurer's not remedy indemnity or both Plaintiffs and Defendants were their co-insureds' liability. the better contribution their (noting that when for they against assert. a for "co-extensive," "co-extensive" believes one rights reimbursement reimburse would shared insured rights can suing concurrently owed. equally no the claim because claim of their insured, Plaintiffs two their assert rights Plaintiffs, subrogation of have satisfied the a See losses, id. characterization between coverage obligations. 26 two insurers thus Therefore, they the of this action who had mutual Having insurers characterized over liability, the the Second, the action percentage Court Court determines the now Court they resolves which state's that how a must law is discusses as dispute pay dispute. applicable the of between a common First, to this applicable the issue. state law apportions the common obligations. 1. In its law previous applied to ruling, interpret the Court determined that the insurers and their insured. Plaintiffs trial and courts instant Defendants in motions contracts between the This determination was as this case. for summary well In as the the state process judgment, of Michigan various supported by appellate and reviewing the however, the Court's research revealed a caveat to Georgia's choice-of-law rules that cast doubt on its previous decision to use Michigan law. Court's request, the Court's the parties' concerns. At the provided supplemental briefing on The Court now concludes that it erred in applying Michigan law. Because this is a diversity case, substantive law of OneBeacon Am. A Id. state's the Ins. Co., substantive forum state: 603 F. Appx. law includes the Court must apply the Georgia. 898, 900 its Nova Cas. Co. v. (11th Cir. 2015). conflict-of-law rules. Thus, the Court applies Georgia law to determine what state law should govern the issues in dispute. 27 Id. Under Georgia law, the choice of of action being litigated. Fed. Ins. Inc. , 417 (Ga. Ct. law depends upon the type S.E.2d pertaining lex loci to actions, loci Georgia to follow 1992). courts lex follow fori. Georgia and contracted, Nuvell. periodic losses These about either contracts directly Plaintiffs (liabilities) incurred who This must contracts. To case pay arises first settle this or established payments, conditions. questions the rule of Id. courts And for follow the Id. The present action is one of contract. Defendants For Co., pertaining to remedy and loci contracts, contractus. v. Nat'l Distrib. App. For questions courts pertaining lex 673 Id. Georgia questions of tort delicti. procedure, rule 671, Co. and by indirectly, that, and Nuvell of the parties' dispute, terms RRS for would RRS the with exchange in Defendants out under Both Plaintiffs and of pay under for certain disagreement the the Court must competing examine the language of the policies issued to determine in which order and to what degree the incurred by their four insurers joint insureds. Buckhead Plaza, L.P., must pay 3060 Corp. 686 S.E. 2d 367, 370 (Ga. for v. the losses Crescent One Ct. App. 2009). Thus, the lex loci contractus rule applies to this case. Under construction, the lex loci contractus "the validity, and interpretation of a contract substantive law of the state where the nature, are governed by contract was made, except that where the contract is made in one state and is to be 28 performed in another state, the substantive law of where the contract is performed will apply." Fed. S.E.2d at the however, 673. Georgia law has recognized, insurance contracts, by their nature, where performance is contemplated." Ins. state Co., 417 that most "have no particular place Id. at 67 4. Thus, Georgia employs the simple rule that insurance contracts are governed by the law of the Lima Delta Co. 235 place where v. (Ga. Ct. App. Given this the contract was Global RI-022 Aerospace, finally delivered. Inc., 789 S.E.2d 230, 2016). rule, it appears that Michigan to this contract dispute. law should apply Of the four contracts at issue, of them were delivered and finalized in Michigan. was not, was a U.S. Interstate "follow Fire terms, in the the form" policy excess primary policy. conditions, excess insurance (Doc. limitations, ^underlying insurance' policy 70-4 at The one that issued contract to Renovo, connected 35 three to the ("The definitions, exclusions and warranties contained policies that are in effect at the inception date of this policy apply to this policy unless they are inconsistent ^following terms as if Penn. and form' provisions excess conditions those v. with terms of and APAC-Southeast, App. 2009). of this policy an policy . incorporates underlying primary conditions Inc., 677 were its . by .").) reference insurance own." S.E.2d 734, . 737 Ins. n.2 "A the policy Co. (Ga. of Ct. It follows that the contract's interpretation must be governed by the state law which governs the primary policy. 29 Lee v. 1996) risk Interstate ("Two should policy; policies have & Cas. with Co., sold a governed by policy by Illinois law, insurers (and insurance "follow form" effective)."). subject quite. to an (7th Cir. the same issued excess the basic policy with It would be absurd if the primary United the Kingdom last Thus, Law, and the excess acts because necessary three of and one was to make the the contracts constructively Michigan law applies. Georgia's old 103 covering Lloyd's were actually delivered in Michigan, Not 101, just because that is the location of the therefore delivered in Michigan, F.3d language effects. substantive terms. were 86 identical identical Interstate identical policy Fire and seemingly difficult to straightforward find rule exception. is "[T]he application of another jurisdiction's law is limited to statutes and construing those decisions statutes." Frank Briscoe Co. Georgia Sprinkler Co., 713 F.2d 1500, 1503 (11th Cir. 1983). no foreign governs the statute issue or in case law dispute, construing the Georgia a foreign v. If statute courts will apply Georgia common law "rather than foreign case law." Id. This caveat has been recognized multiple J.C. Bradford & Co., 827 F.2d times. 718, 725 n.6 See Kirkpatrick v. (11th Cir. 1987) (citing with approval Frank Briscoe: "If a particular state does not have a controlling statute, however, the Georgia choice of law rule requires application of the common law as construed by the Courts of Georgia."); Budget 30 Rent-A-Car Corp. of Am. v. Fein, 342 there is F.2d no 509, 513 applicable (5th Cir. foreign 1965) statute" (noting Georgia that courts "where presume the common law applies and apply the common law "as illumined by Georgia decisions"); Ins. , 64 Frank Briscoe S.E.2d law F. 41, 2d Co.); 44-46 after 1340, (Ga. Ct. to Choice Mercer L. Rev. choice of law Law in Stratton v. of 2001) no a South Time 787, 789 (1983) system is unusual another jurisdiction's laws is Ga. v. Lumber Consider (recognizing in that Inc., Georgia Carolina John a 545 common statute B. was Rees, Change?, that the Globe (following Mill, dispute); to Royal 1999) (applying contract Georgia: Corp. (M.D. Cullum's App. that resolution of & 1343-44 Calhoun determining applicable Jr., Supp. Briggs 34 "Georgia's application of limited to statutes and decisions construing those statutes"). With this exception in mind, becomes: Is interpretation there of any contracts the question for the Court now Michigan or the expenses between two co-insurers? statute priority First, the allocation of The Court asked this question in its request for supplemental briefs. potential statutes. and governing Defendants provided two Plaintiffs provided none. Defendants cited a Michigan statute that provides, in part: A liability insurer, who by payment has discharged in full or in part the liability of a tort-feasor and has thereby discharged in full its obligation as insurer, is subrogated to the tort-feasor's right of contribution to the extent of the amount it has paid in excess of the 31 tort-feasor's pro rata share of the common liability. may assert this right either in its own name or in name of M.C.L.A its are silences the state law however, exception which among to lex the insurers right," contribution Virginia 2005) contractual governs alternative argument. v. argue loci that, actions, contractus contribution Ins. ("The is and a just device action that is Reciprocal, division used distribution that this statute because it is a Defendants, this [of not 611 argument a contractual S.E.2d 706, contribution] a losses, affect ("We may loci to their but was rather merely a is an rule applies construction, only and Ct. App. founded not upon unfairness simply v. as to procedural equitable 18 general the that a Scales, a and the remedy: Joice safely assume, (Ga. Pilzer and assists in the fair is certain action. 707 preventing action common burden. lex contracts of contribution to of (1855) the A right, The Court agrees with Defendants. doctrine injustice."). 725-26 contribution action. contractual contract, but upon principles of equity, and if made clear that they "do not contend that the right to equitable A Defendants considered contribution an insured. 600.2925a(6). actions It the Ga. 725, principle, interpretation the remedy on of them must be prosecuted according to the laws of the country in which the action is brought."). The only reason this contribution action involves a contract is because the equitable distribution 32 of a the common burden litigants requires examining the obligations contractually bound themselves. action is merely the vehicle by which the to arrive at v. Duncan, whether a their 462 substantive S.E.2d party must 638 sue John Ct. Doe See Allstate App. before 1995) he which contribution litigants must dispute. (Ga. The to travel Ins. (holding could sue Co. that his own uninsured motorist carrier "is a procedural and remedial matter, and thus governed by Georgia law"). This conclusion Michigan statute. under section a M.C.L.A. is The action remedy, it action between distribute would were it to to be is tortfeasors clear not relies by Defendants that contract. the even the falls if other A law Nothing of tort-feasors." something on fault between tortfeasors. structure between called tort, the cited "Contribution Thus, relate buoyed by subsection titled 600.2925a. contribution further this than a contribution of in the tort to insurers' contracts has any bearing on the differing degrees of tortfeasor negligence. And, as Thus, this it would still be governed under Georgia law. Court has already discussed at length, Georgia's apportionment scheme does not allow the insurers in this case to seek contribution between the tortfeasors at this stage in the litigation. Second, Insurance Defendants cite a portion of the Michigan No-Fault Act ("MNFIA"). "The MNFIA regulates automobile insurance policies purchased by persons with cars registered in 33 Michigan. It requires insurance policy, insurance' coverage." 450 F.3d 643, required 646 all which must Cir. allows owners 2006). insureds to losses from Carrier, 795 N.W.2d 517, Defendants, M.C.L.A. vehicle 523 ^personal The without regard to fault, motor maintain Gov't Emps. their insurers, arising to include Shields v. (6th insurance car (Mich. 500.3115(1), Hosp. no-fault "recover a no-fault protection Ass'n, nature Inc., of directly the from for qualifying economic incidents." 2010). McCormick v. The portion cited by details the priority of allocation among multiple insurers to an accident: (1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority: (a) Insurers involved in of the (b) Insurers the owners or registrants of motor vehicles accident. of accident. Defendants claim allocation between operators not. 500.3115, that the and of motor 500.3115 co-insurers the entire vehicles establishes of MNFIA, this is involved in priority dispute. inapplicable It to of does the present situation. Defendants' the MNFIA and argument fails because it takes one section of isolates it from the rest of the statute. The MNFIA is a comprehensive statute meant to ensure that drivers on Michigan highways have adequate insurance to cover damages. It requires "[t]he owner or registrant of a motor vehicle required 34 to be registered in insurance, insurance [Michigan]" to purchase "personal protection property protection insurance, . vehicle." . . during M.C.L. the period of § 500.3101(1) and residual liability registration of the motor (emphasis added). "According to the express language of the statute only those vehicles required to be registered in [Michigan] of the no-fault act." 4, App. 5 owned (Mich. by required Ct. a Covington v. 1979) Michigan to be the MNFIA). subject to but in Michigan, the MNFIA applies the dispute was not Court will not required to apply the be 277 N.W.2d driver of a truck registered could not only to requirements Sys., neither to be registered in the state of Michigan. in the Interstate (holding that corporation, registered Thus, are recover vehicles nor under required Because the vehicle registered in Michigan, the priority of coverage provision to the present dispute. Furthermore, because the statute dictates scheme to regulate insurance in Michigan, apply such a regulatory Georgia scheme outside the state of Michigan. insurance requirements necessary to drive on its highways. It its motorists. own the Court hesitates to the has its comprehensive to also has a own The rules and regulations pertaining rules Court and will regulations not foist concerning upon it the uninsured rules and regulations of Michigan simply because a contract was delivered in Michigan. To do so would be to apply not the contract law of Michigan but the regulatory law of Michigan. 35 The purpose of lex loci contractus parties, for not is to honor substitute another. provision to Thus, the volunteered by the the intent of regulatory Court interpretation of the contracts at is contracting scheme of that the concludes Defendants the not one state statutory applicable to the issue and does not decide the issue of priority and allocation. Because allocation because no of no contracts, Michigan the common Michigan the Court contractus applies. statute governs liability between statute governs concludes Thus, that Georgia, the the the the priority and co-insurers and interpretation of exception to not Michigan law, lex loci applies to interpret the contracts in dispute. 2. "Under Georgia law, the Ma]n insurance contract is governed by ordinary statutory rules of construction and should construed to ascertain the intentions of the parties.'" Cas. Co. (11th Brown, of Reading v. MAG Mut. Cir. 413 2009) (quoting S.E.2d interpretation determination of and 430, an Co., Progressive 431 (Ga. Ct. insurance resolution of law for the courts to decide." Soc. of U.S., Ins. 445 F.3d 1286, 185 F. Appx. Preferred App. Giddens v. 1297 The Am. 921, Co. 1992)). policy, ambiguities, Ins. a 925 v. "[T]he including is be question the of Equitable Life Assur. (11th Cir. 2006). Before the Court can highlight the pertinent language of the four contracts 36 at issue, however, it notes some basic insurance principles that will impact how the Court interprets the various contracts. First, Primary of insurance contracts Excess. Primary and liability. insurance) Excess covers liability. limits of Second, insurance another insurer These a "other that this exceed an level of come as is three of the policy. existence insurance" in level insurance the level umbrella liability anticipate clauses initial initial often "other an categories: known primary including insurance" covers named contracts by into two (also initial specifically fall insurance insurance losses Usually, often of provisions. forms: "excess" clauses, "pro rata" clauses, and "escape" clauses. "Excess" clauses allow a primary policy "to payment when the insured has other insurance." Marine Ins. 2009 WL Co. 789612, v. Valley Forge Ins. at *4 (N.D. Ga. Co., Mar. No. 23, avoid double St. Paul Fire & 1:06-CV-2074-JOF, 2009). They do not make the policy an excess policy, but merely "provide [] that an insurer primary will insurance is pay a loss only exhausted." Am. after Cas. (internal citations omitted). Co., other 185 available F. Appx. "Pro rata" clauses, at 925 n.2 on the other hand, merely allow insurers to lessen their liabilities when the insured has other insurance. "A pro rata clause 'provides that the insurer will pay its share of the loss in the proportion its policy limits available.'" relates Id. to the (internal aggregate citations 37 liability omitted). coverage Finally, "escape" clauses allow insurers to escape liability altogether. Id. is They liability "provide[] where other that an insurer coverage is absolved of all available." Id. (internal language the contracts citations omitted). The Court themselves. between the now The turns Court's parties insurance. overlapping insurance deny provided owing to task which Defendants to RRS to is of to settle tortfeasors claim insurance Nuvell. a they provided provided Plaintiffs only The dispute parties the and Nuvell. overlapping coverage the initial about overlapping parties to to claim the RRS, Court and agrees they with Defendants. The language of the that it covers Nuvell. a named insured. "[Business Auto U.S. Fire The U.S. (Doc. Coverage 70-1 policy clearly establishes Fire policy states that RRS is at Form's] 3.) It then Liability states Coverage is for any liability assumed under an insured contract." 19.) that the primary (Id. at The policy defines an "insured contract" as "that part of any other contract or agreement pertaining to your business . . . under which you assumed the tort liability of another to pay for bodily injury organization." or property (Id. at 21.) damage liabilities, losses, a third party In 2006, RRS agreed to indemnify and hold harmless all to [Nuvell] damages, . . . from any and costs, and expenses (including reasonable attorneys' fees and legal expenses), suits, and/or causes of action . . . arising out of [RRS!s] negligent, reckless, or willful misconduct in the 38 or performance of any Services under this Agreement, and any Services performed by any entity, person or company to which Contractor assigns Services whether with or without knowledge of [Nuvell], and from [RRSfs] breach of any covenant, representation or warranty set forth in this agreement or in [Nuvellfs] Policy on Repossession and Location Nuvell, 736 Information. S.E.2d at 470. The state trial court held "Nuvell was entitled to contractual indemnification by all claims agreement. an against Id. "insured it" Thus, contract" based upon this U.S. Fire owes [RRS] for indemnification the agreement between RRS and that and Nuvell is primary coverage to Nuvell. The Fire, Court's Monroe, next task Interstate, is to and determine FCCI whether policies, when the U.S. viewed in light of each other, provide primary or excess coverage for RRS and Nuvell. the First, Court finds provided primary coverage to RRS. counter to "covered Forms don't excess 19; the auto" policy that language triggered U.S. Fire At first because glance, RRS coverage, and and Monroe did the both this runs not own Business the Auto of both policies state that "[f]or any covered 'auto' you own, over 70-2 at insurance," the insurance any other 15.) the But provided collectible because policies have are thus primary policies. by Coverage insurance." there nothing Next, this is to no be Form is (Docs. 70-1 at "other "excess collectible over" and the Court concludes that U.S. Fire and Monroe also provided primary coverage to Nuvell. Both policies covered RRS, and RRS agreed to indemnify Nuvell. Both 39 policies also Coverage is primary contract." Nuvell. contained the (Id.) for the language that "Liability any liability assumed under Thus, Finally, identical an insured they both provided primary insurance to Court finds that the Interstate and FCCI Monroe are policies provide excess coverage to RRS and Nuvell. In sum, primary Plaintiff insurers for U.S. RRS FCCI Interstate was the excess insurer for Monroe. with one in what final excess question: and and Nuvell. Defendant excess are Fire Plaintiff insurers insurer This Defendant for for U.S. Interstate RRS Fire. determination and and Nuvell. FCCI was leaves the Who has the responsibility to concede that the Court pay and amount? Because policies all are parties "true excess" policies, the Interstate and thus will and not FCCI apply until after the primary policies are exhausted, the Court begins by examining the language of the two primary policies - the U.S. Fire policy policies, insurance" When and the Monroe respectively, policy. contain The U.S. nearly Fire and identical Monroe "other clauses: this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis. (doc. 70-1 at 19) When this policy and Coverage covers on Form the and same 40 any other basis, Coverage whether Form excess or or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis. (doc. 70-2 at 15). rata" clauses, These "other insurance" clauses are "pro and by their very terms explain how the insurers should allocate their common liability. Both policies "cover on the same basis," thus each policy must pay "the proportion that its limit of insurance . . . bears to the total of the limits of all the coverage forms and policies covering on the same basis." In order to calculate the insurers' however, damages the that Court must must be first split respective obligations, determine between the them. exact amount Plaintiffs of contend that the parties must allocate the total damages incurred by the tortfeasors counter in the that they Defendants are severally; thus, satisfying the 25% of the 50% are correct. all judgment, of the only case: or The were $632,198.53. tortfeasors, over verdict This means judgment. $2,528,794.12. fighting tortfeasors judgment. insured two of the only underlying half was Defendants issued equally on that amount. jointly the and hook for that each tortfeaser owed Because Defendants must Therefore, the Defendants cover, total only at most, amount of damages that must be allocated between Plaintiffs and Defendants is $1,264,397.06, not $2,528,794.12. Both policies limits are equal, had limits of $1 million. Because the "share" due by each primary 41 their insurer is 50%. 50% each of $1,264,397.06 insurer's $1 is million $632,198.53, policy triggered. be insurers there that this the are motions Court for Defendants' Renovo, Court must apportion insurers and GRANTS summary request and to several contribution the proportional RRS and Nuvell: Plaintiff U.S. and because to It and DENIES (Docs. also the million Court be 70 & to the excess RRS, Plaintiffs' verdict damages Nuvell, request Because to all four that the joint via in an this action case share of the joint and several verdict $1,264,397.06. DENIES among concludes challenged disputed It between Defendant for total owed by Monroe and Fire are the primary insurers of RRS and Nuvell, they have pro rata "other insurance" clauses which the Court finds Fire and Monroe have coverage obligations with respect to RRS and Nuvell totaling $632,198.53 each. Plaintiffs not both parties' 7 6.) mandate that they each bear half of the burden, that U.S. will between the IN PART damages DENIES The cannot policies CONCLUSION $2.5 that insurance discuss. apportion dispute. verdict and applied judgment. entire this primary excess IN PART Brown. the than the no allocation issues IV. The Thus, less and the excess insurance policies will not be And because triggered, limits. is exhausted by coverage as insurance policies will not be to RRS and Nuvell, which $632,198.53. Court, within Thus, Monroe owes The Court ORDERS the parties to 14 days of 42 this Order, a joint submit proposed judgment detailing how Monroe's any interest, coverage obligations, should be distributed among Plaintiffs. including The Court also instructs the parties to notify the Court of any additional issues outstanding. ORDER ENTERED September, at Augusta, Georgia, this _/^_^<day 2017. IF IITED/STATES JUDGE DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA 43 of

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