State Farm Mutual Automobile Insurance Company v. Marshall et al

Filing 30

ORDER granting 23 Motion for Summary Judgment. The Clerk shall enter judgment in favor of State Farm and close this case. Signed by Judge J. Randal Hall on 03/30/2016. (thb)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN

DISTRICT

AUGUSTA

STATE

FARM MUTUAL AUTOMOBILE

FOR THE

OF GEORGIA

DIVISION

*

INSURANCE COMPANY

*
*

Plaintiff,

*
*

*

v,

*

ROBERT EUGENE MARSHALL and

*

THOMASINA PARKS,

*

Defendants.

l:14-cv-170

*
*

STATE FARM MUTUAL FIRE AND

*

CASUALTY COMPANY,

*

*
*

Plaintiff,

*

*

v.

l:14-cv-220

*

ROBERT EUGENE MARSHALL and

*

THOMASINA PARKS,

*
*

Defendants.

*
*

ORDER

In
entities

these
seek

declaratory-judgment
declarations

that

they

cases,
do

not

two
owe

State
coverage

Farm
or

a

duty to defend or indemnify Defendant Robert Eugene Marshall for
liability

related

to an altercation

Parks in Marshall's Toyota Avalon.
Insurance Company v.

with Defendant

Thomasina

State Farm Mutual Automobile

Marshall et al.,

No.

l:14-cv-170 concerns

coverage under an automobile insurance policy State Farm Mutual

Automobile Company issued to Marshall.

In

Casualty Company v. Marshall et al.,

l:14-cv-220,

Fire

and

Casualty

Company

events with respect
to

Marshall.

to

different

case,

the

and

State

Court,

similar

a homeowners

Marshall

Though

seeks

No.

Parks

Farm

for

State

relief

Farm Fire and
State Farm

for

the

insurance policy it

are

Defendants

entities

are

simplicity's

in

sake,

issued

both

Plaintiffs

cases.

in

refers

same

to

each
both

Plaintiffs as "State Farm" throughout.
These

cases

come

before

the

Court

on

State

requesting summary judgment in its favor on

its

Complaint

Complaint
below,
in

Case

in

in

Case

Case

No.

No.

l:14-cv-170,

l:14-cv-220.

For

Farm's

Counts

and

I and II of

Count

the

motions

reasons

I

of

its

discussed

the Court GRANTS State Farm's motion for summary judgment
No.

l:14-cv-170

and GRANTS

its

motion

in

Case

No.

1:14-

cv-220.

I.

In August 2010,

BACKGROUND

Defendant Robert

Eugene Marshall purchased

a 2005 Toyota Avalon for his then-girlfriend Defendant Thomasina
Parks.

and

he

The Avalon was

signed

the

purchased and registered in his

necessary

financial

paperwork.

name,

Marshall

purchased the vehicle for Parks's use because her credit history
prevented

Parks,

by

her

however,

paying

from

purchasing

made payments

Marshall

and

the

vehicle

in

for the Avalon,

later

directly

to

her

own

name.

first indirectly

Capital

One

Auto

Finance.

Parks

insurance

also

policy,

relevant,

contributed

which

covered

toward

the

Marshall's

Avalon.

automobile

At

all

Parks was the only person who drove the Avalon,

times

though

it remained registered in Marshall's name.
Years

later,

on

April

20,

2013,

come to his house in Hephzibah,
their relationship.
in

Marshall

that

their

Marshall

told

her

Avalon,
Marshall

and

one

to

leave
then

hand

it

far

door

the

the
left

using

her,

his house,

over.

keys
his

the

behind.

behind

on

While at

relationship was

She

not

Parks

to

Georgia to discuss the status of

driveway.

started

was

driver-side

with

his

refused.

asked

Parks drove the Avalon to Marshall's house

and parked it

Parks

Marshall

to

Before

the

house,

Parks

Avalon
walked

push-ignition

Before

Parks

Parks

told
left,

with

him.

toward

the

button.

could

But

close

Marshall

entered

through

steering wheel,

leaning

his

it

weight

the

and,

into

Parks and reaching across her, used the push-ignition button to
turn off the car.

turning
exchange,

the

car

At this point, Marshall and Parks alternated

on

and

off

multiple

times.

During

this

Parks managed to briefly shift the car into reverse

and travel down the driveway before Marshall turned the car off.

Eventually Parks reached for and grabbed a steak knife that
was

located

in

the

car's

seized the knife from Parks,

console.

Marshall

turned around,

threw the knife into hedges on his property.

claims

that

he

exited the car, and

In his version of

events, after throwing the knife, he turned around to find Parks

outside

the

car's

seen her exit

Parks,

the

on

passenger-side

door.

He

claims

to

have

not

car.

the

other

grabbed the knife,

hand,

maintains

that,

after

Marshall

he remained in the car and continued to lean

his full bodyweight into her.

Parks then attempted to exit the

car by crawling over the console and opening the passenger-side

door.

While

Marshall's

diagnosed

her

full

as

exiting,

moving

her

weight

a

torn

right

on

her,

meniscus

leg

over

Parks

in

the

console,

suffered

her

right

what

with

was

Soon

knee.

later

after

Parks discovered slit-type cuts from the steak knife on

arms.

Parks

insists

that

Marshall

did

not

intend

to

cause

the cuts or the knee injury.
Marshall

is

the

named

insured

on

an

automobile

insurance

policy issued to him by State Farm Mutual Automobile Insurance

Company.
Avalon,

That policy covers a number of vehicles, including the
and

relevant

identifies

here,

liability

Parks

as

an

additional

the policy contains two forms

coverage

with

limits

of

driver.

As

of coverage:

$100,000

per

person

(1)

and

$300,000 per accident; and (2) uninsured motorist coverage with
limits
Marshall

of
is

$100,000
also

per

the

person

named

and

insured

$300,000

under

a

per

accident.

homeowners

issued by State Farm Fire and Casualty Company,

policy

which provides

personal liability coverage with limits of $100,000.
On July 18,

2013,

Parks issued a demand letter to State

Farm requesting payment of $100,000 under Marshall's automobile

policy's

liability

coverage

or,

alternatively,

the policy's uninsured motorist coverage.
filed

a

Complaint

Richmond

County,

incident.

against

Georgia

Parks's

negligence

caused

her

provide

of

seeking

Complaint

In April 2014, Parks
the

damages

Superior

Complaint

State

declaring

coverage

defend

that

to

or

in

the

Case

regarding

Farm

filed

No.

these

that

policy

State

indemnify Marshall,

and

Farm seeks a declaration that the

State

state-court

for

Parks's

has

Farm's

Complaint

seeks

a

no

no

State

and

seeking

Count I of State

judgment

liability

obligation

Farm can

to

legally

In Count II, State

policy provides

damages

policies

actions

provides

Farm

that

the

requests

that

legally deny coverage under that provision.
cv-220,

the

whether

l:14-cv-170

automobile

Marshall,

coverage

the

Marshall's

served

deny liability coverage for Parks's claims.

motorist

from

of

that

declaratory relief regarding its obligations.

Farm's

Court

resulting

alleges

Parks

under

and also on State Farm.

uncertainty

coverage,

in

also

injuries.

Complaint on Marshall,
Because

Marshall

$100,000

no

uninsured

State

Farm

can

In Case No. 1:14declaratory

relief

concerning liability coverage under the homeowners policy issued
to Marshall.

State Farm served the Complaints on Parks,

in each case.

cv-220,

Doc.

(Case No.

9,

13.)

l:14-cv-170,

Docs.

6,

and she answered

8; Case No.

1:14-

State Farm also served Marshall in both

cases, but he has not answered,

and the deadline to do so has

passed.

Doc.

(Case

No.

Ex.

A.)

29,

judgment
No.

in

both

l:14-cv-220,

l:14-cv-170,

State
cases.

Doc.

genuine

entitled
56(a).
the

to

the

party,

in

is

to

judgment

under

Liberty Lobby,

U.S.

now

No.

l:14-cv-220,

moved

l:14-cv-170,

for

Doc.

summary
23;

Case

JUDGMENT

appropriate

any

as

a

material

matter

STANDARD

only
fact

of

if
and

law."

"there

Fed.

no

movant

the

is

is

R.

Civ.

P.

Facts are "material" if they could affect the outcome of

suit

view

as

Case

has

(Case No.

SUMMARY

judgment

dispute

Farm

7;

21.)

II.

Summary

Doc.

the
Inc.,

facts

in

587

(1986),

substantive

U.S.

242,

light

Elec.

[its] favor."

1428, 1437

477

the

Matsushita

574,

governing

most

Indus. Co.

248

law.

(1986).

favorable

v.

v.

The Court must

to

Zenith

Anderson

the

non-moving

Radio

Corp.,

475

and must draw "all justifiable inferences

U.S.

v. Four

(11th Cir. 1991)

Parcels of Real Prop.,

(en banc)

941 F.2d

(internal punctuation and

citations omitted).

The

Court,

Celotex

to carry

Corp.

this

proof at trial.
1115

party

has

the

initial burden

by reference to materials on file,

motion.

How

moving

v.

burden

Catrett,

depends

Fitzpatrick v.

(11th Cir. 1993) .

477

showing

the basis

U.S.

on who

of

317,

bears

the

City of Atlanta,

If the burden of proof

323

the

for the
(1986).

burden

of

2 F.3d 1112,

at trial rests

with the movant, to prevail at summary judgment, the movant must

show that, "on all the essential elements of its case . . . , no

reasonable
States v.

Cir.

jury

could

find

for

the

nonmoving

Four Parcels of Real Prop.,

1991)

(en jbanc) .

On the

941 F.2d 1428,

other

hand,

party has the burden of proof at trial,
at

party."

United

1438

if the

(11th

non-moving

the movant may prevail

summary judgment either by negating an

essential

element

of

the non-moving party's claim or by pointing to specific portions
of the record that demonstrate the non-moving party's inability
to meet its burden of proof.

F.2d
Kress

604,
&

606-08

Co.,

477 U.S.

317

398

that

U.S.

144

1991)

(1970)

if—the movant

may

avoid

is

indeed

there

Cir.

Coats

& Clark,

(explaining
and Celotex

Adickes

Corp.

v.

Inc.,

v.

929

S.H.

Catrett,

(1986)).

If—and only

non-movant

(11th

Clark v.

summary judgment."
proof at trial,

summary judgment
a

Id.

the

carries

material

its

initial

only by

issue

of

burden,

the

"demonstrat[ing]

fact

that

precludes

When the non-movant bears the burden of

non-movant must tailor its

response to the

method by which the movant carried its initial burden.

If the

movant presents evidence affirmatively negating a material fact,
the

non-movant

withstand

a

"must

directed

respond
verdict

fact sought to be negated."

with

motion

evidence
at

trial

Fitzpatrick,

sufficient
on

the

shows an absence of evidence on a material

non-movant

must

either

show

that

the

material

2 F.3d at 1116.

the movant

record

contains

to

fact,

If
the

evidence

that was "overlooked or ignored" by the movant or "come forward

with

additional

verdict

motion

deficiency."
burden by

evidence

at
Id.

sufficient

trial
at

based

1117.

relying on

the

to

on

The

withstand

the

alleged

non-movant

pleadings

or by

a

directed

evidentiary

cannot

carry

repeating

its

conclusory

allegations contained in the complaint.

See Morris v. Ross,

F.2d

Rather,

1032,

1033-34

(11th

Cir.

1981).

the

663

non-movant

must respond with affidavits or as otherwise provided by Federal
Rule of Civil

In

Procedure

these

cases,

56.

the

Clerk

of

the

Court

gave

Defendants

notice of State Farm's motions for summary judgment and informed
them of the summary judgment rules,
or

other

materials

default.

(Case

l:14-cv-220,

in

No.

Docs.

27,

Griffith v. Wainwright,
curiam)

are

opposition,

l:14-cv-170,

22,

therefore

the right to file affidavits
and

Docs.

28.)

The

772 F.2d 822,
satisfied,

and

the
25,

consequences
28,

notice

29;

of

Case

No.

requirements

825

(11th Cir.

the

motions

1985)

are

of

(per

ripe

for

review.

III.

From the

interpreted
depending

outset,

terms

on

the

ANALYSIS

the Court notes

in
kind

various
of

that

insurance

policy

at

Georgia

policies

issue.

courts

have

differently

Two

different

policies with a combined three coverage provisions are presented
in

these

automobile

cases:

a

homeowners

general

insurance policy that

liability

contains

policy

and

an

a liability coverage

provision and an uninsured motorist coverage provision.

Below,

the Court separately addresses State Farm's arguments regarding
whether

coverage

l:14-cv-220,
policy

exists

Count

(Case No.

coverage

under

I),

under the homeowners
liability coverage

l:14-cv-170,
the

Count

automotive

I),

policy

policy

under the

(Case No.
automotive

and uninsured motorist
(Case

No.

l:14-cv-170,

Count II).

A. Case No. l:14-cv-220, Count
Marshall's Homeowners Policy

State

are

not

Farm

contends

covered

by

that

I:

Parks's

Marshall's

Liability Coverage under

claims

homeowners

against

policy.

Marshall

The

policy

provides personal liability coverage for claims brought "against
an

insured

for

occurrence."

220,

Doc.

damages

(Homeowners

21, Ex.

"an accident,

bodily

injury

Policy,

Case

caused
No.

by

an

l:14-cv-

The policy defines "occurrence" as

including exposure to conditions, which results in

because Marshall's

Parks

of

Insurance

8 at 29.)

bodily injury . . . ."

by

because

were

(Id.

acts were

not

caused

at 16.)

State

intentional,

by

an

the

accident,

Farm argues that,
injuries

and

suffered

therefore

no

coverage exists under the policy.

The

policy

does

however,

regularly

policies,

including,

e.g. , Allstate

App. 2010).

not

define

define

"accident."

"accident"

in particular,

Ins. Co. v.

Neal,

as

Georgia

used

in

courts,
liability

homeowners policies.

696 S.E.2d 103,

105

(Ga.

See,
Ct.

In similar policies, Georgia courts have defined an

accident as an "event which takes place without one's foresight
or

expectation

S.E.2d

616,

3(2)).
that

618

design."

(Ga.

Ct.

Allstate

App.

Ins.

1995)

Co.

v.

Grayes,

(quoting O.C.G.A.

§

454

1-3-

In applying that definition, courts "have generally held

where

an

^accident'
Owners

or

act

as

Ins.

that

Co

2003) .
coverage

for

v.

Thus,

conscious

is

intentional,

term

is

James,

injuries

voluntary

defined

295

F.

draws

Georgia

a

that

act"

it

in

Supp.

not

an

2d 1354,

that

1363

but

are

(N.D.

Ga.

insurance

"arise

the

an

policy."

between

unexpected

injures

constitute

insurance

distinction

are

and

does

from

a

"unexpected

result of an unforeseen or unexpected act that was involuntarily

or unintentionally done."
and

Accident

2003)).

Ins.

Co.

Id. at

v.

Hallum,

Under Georgia law,

term "accident."

Marshall

to

be

Hallum,

covered

1364

(citing

576

Provident Life

S.E.2d

849,

851

(Ga.

only the latter are covered by the

576

S.E.2d at

under

the

851.

Accordingly,

homeowners

policy,

for

Parks's

injuries must have come from unforeseen or unexpected acts that
were involuntarily or unintentionally done.

Viewing
Defendants,
that

the

in

the

as the non-movants,

the

Marshall

Specifically,

car,
Parks

he

evidence

intended

Marshall

intentionally
retrieved

the

all

light

the

steak

his

favorable

to

evidence undisputedly shows
acts

intended to stop

leaned

most

Parks

weight

knife

that

from driving the

into

from

occurred.

her,

her

and,

console,

when
he

intentionally took it from her and continued leaning into her in
10

an attempt

to control

deposition testimony,
Parks,
The

that

is

policy

unintentional

Therefore,

covers

or

Though

for purposes

unexpected

involuntary

injuries

what

car.1

Marshall,

said that he did not

immaterial

only

unintentional

the

that

matters

is

of

insurance
that

and

result

that

intend to

injuries

acts

is

injure

coverage.

result

does

from

there

in his

from

not

cover

intentional
no

evidence

acts.

that

an

unintentional act caused Parks's bodily injuries.
Parks agrees

policy,

In

but

attempts

particular,

because

on the interpretation of "accident" under the

"Mr.

Parks

Marshall

to

create

a

believes

material

contends

that

Parks at the time of her injury,
that Mr.

Marshall was

injury."

(Def.

Opp.

dispute

he

tort

action

exist

under

the

and

facts
was

material

are

in

nowhere

facts.

dispute
near

Ms.

and he disputes her allegations

inside the vehicle with her at the time of

Br.

at

4,

l:14-cv-220,

These disputed facts could be material,
court

over

not

to

homeowners

this

policy,

case.

but

Doc.

been caused by Marshall's unintentional acts.

Ex.

only to the

Here,

Parks's

24,

for

4.)

state-

coverage

injuries

must

to

have

Thus, a disputed

1 Marshall disputes that he leaned his bodyweight into Parks and
that he was present in the car when she tore her meniscus.
In
interpreting the evidence in the light most favorable to Parks, as the
non-movant,

the Court notes

that, to recover under the policy,

Parks

must demonstrate that an accident "resulted in" the meniscus tear and
the knife cuts to her arm.
(Homeowners Policy, l:14-cv-220, Doc. 21,

Ex. 8 at 16.)
Accordingly, at summary judgment, the Court finds that
Marshall remained in the car throughout the altercation and leaned his
bodyweight into Parks, otherwise there would be no evidence whatsoever
of what caused the meniscus tear.

11

material

caused

fact would be one that

Parks's

Marshall

was

meniscus.
Marshall
when

injuries.

not

Under

present

in

the

alleged

injuries,

injuries

intentional,

even

that

Parks's

car

version

when

if

an

injuries,

the

only that

occurred.

Marshall is present in the car,

evidence

Marshall's

act that

of

Parks

events,

tore

her

But there is no evidence that an unintentional act by
caused Parks's

the

showed an unintentional

in

was

not present

Parks's

version,

but all of Marshall's acts were

injuries

unintentional
there is

And

he

were

act

unintentional.

by

Marshall

no disputed material

Absent

resulted

in

fact that could

preclude summary judgment.

Because
were

not

judgment
Count

I

the

undisputed

caused

in

by

favor

of

in Case No.

an

liability

show

"accident,"

State

Farm

the

Fire

that

Parks's

Court

and

GRANTS

Casualty

injuries
summary

Company

coverage

Count I:

provision

Liability Coverage under

of Marshall's

automobile

insurance policy provides that State Farm "will pay damages

insured becomes
to others

policy."

an

legally liable to pay because of bodily injury

. . . caused by an accident that

for which that

on

l:14-cv-220.

B. Case No. l:14-cv-170,
Automobile Policy

The

facts

involves a vehicle

insured is provided Liability Coverage

by

this

(State Farm Car Policy Booklet, Doc. 23 Ex. 8 at 14-15

(emphasis removed)).

"Insured" is further defined, in relevant

12

part,

as "you . . . for the ownership,

your car . . . ."

State

accident
use"

of

(Id.

did
the

not

that

and use of

at 14.)

argues

Farm

maintenance,

arise

Toyota

out

no

coverage

of the

Avalon.

If

exists

"ownership,

so,

Marshall

because

the

maintenance,
would

not

be

or
an

"insured" for purposes of Parks's claims against him.
For

her

part,

Parks

points

to

the

numerous

between the altercation and the vehicle's "use."

the

entire

vehicle,

dispute

Parks

or

centered

on

Marshall.

the

question

Moreover,

the car was repeatedly turned on and off,
to

shift

the

car

into

reverse

injuries

and back down

arose out

of

who

the

owned

the

altercation,

Parks was briefly able
the

Marshall had his hand on the steering wheel.

view is that her

Most notably,

of

during

connections

driveway,

In short,

a fight

and

Parks's

for control

of

the vehicle.

The
used

in

term

"ownership,

automobile

insurance

interpreted by courts.
regard.

In

use"

usually

"is

reasons:

that

maintenance,

Georgia,

policies

and

use"

is

frequently

and

just

as

frequently

Georgia courts are no different in this
the

clause

interpreted

it is ambiguous,

"ownership,

in a broad

maintenance,

sense

for

the

and
usual

or should be construed in favor

of the insured, or against the party drafting it, and the burden

of

proving

an

exclusion

is

Fidelity Ins. Co. v. Stevens,

on

the

insured."

236 S.E.2d 550, 563

13

Southeastern
(Ga. Ct. App.

1977).

The car's "use" does not need to be the proximate cause

of the claimant's bodily injuries.

Id.

Instead,

[f]or an injury to result from the use of a
motor vehicle, there must be such a causal
connection as to render it more likely that
the injury "grew out" of the . . . use of
the vehicle. . . . [T]he connection must not
be merely fortuitous.
There must be more of
a

connection

between

and the resulting
in
the
vehicle

the

use

of

the

vehicle

injury than mere presence
when
the
injury
was

sustained.

State

(Ga.

Farm

Ct.

App.

S.E.2d 913,

As

Mut.

Auto.

2012)

914-15

stated

Ins.

(quoting

v.

Davis

(Ga. Ct. App.

above,

the vehicle must

Co.

the

Myers,

v.

786

S.E.2d

Criterion

787,

788

Co.,

345

injuries

and

Ins.

1986)).

connection

between

the

be more than that the vehicle was

the

location

of the injuries.

For instance, assaults occurring on buses have

been held to

arise

not

out

of the vehicle's

"use";

rather,

the

vehicle is "merely the unfortunate location where [the assailant
and

the

victim]

crossed

(discussing numerous
also Payne v.

Twiggs Cty.

Ct. App. 1998)
constitute

cases

paths."

Davis,

345

concerning assaults
Sch.

Dist.,

S.E.2d

at

915

on buses);

see

496 S.E.2d 690,

692

(Ga

(finding that an assault on a school bus did not

an

injury

arising

from

the

vehicle's

"use").

Similarly, the sexual assault of a mentally disabled adult ward
in the backseat
"use."

Myers,

of

a car was held to not arise

786 S.E.2d at 789.

14

from the car's

Given

Avalon,
during

that

this
the

this

case

theft

Automobile

Ins.

altercation

resembles
of

car.

those
In

Co. , 347

concerned

where

688

control

drivers

Westberry

S.E.2d

the

v.

(Ga.

are

State

Ct.

of

injured

Farm

App.

the

Mutual

1986),

the

court found the shooting death of a taxi-driver during a robbery
while

he

seated

despite

use,

was

likely

S.E.2d at
427

689;

S.E.2d

victim
driven

see

49,

was

in

taxi

did

to

steal

intent
also

51

(Ga.

kidnapped,

across

his

state

USAA Prop.
Ct.

App.

shoved
lines,

not

arise

the

into
and

taxi's

& Cas.

1993)

out

Co.

(finding

later

the

taxi's

proceeds.

Ins.

insured

of

v.

no

Wilbur,

"use"

vehicle,

killed

347

where

assaulted,

shortly

after

exiting the vehicle).

Occasionally,

Georgia

courts

have

confronted

cases

where

one party commits an assault by using a car to run into or over
a victim.

540

(Ga.

835

(Ga.

See American Protection Ins.

Ct. App.
Ct.

1979); Martin v.

App.

1987).

From

Co.

v.

Parker,

258 S.E.2d

Chicago Ins. Co, 361 S.E.2d
the

Court's

review

of

these

cases, the questions presented have all focused on whether these
assaults could be considered "accidents" under the policies.

such

cases,

it

appears

to

possibly the courts as well,
instrumentality

to

constitutes

"use"

these

address

cases

injure

under

an

be

assumed

by

the

litigants,

In

and

that where the car is used as the
the

victim,

insurance

"accident" under

policy.

such
So,

an

assault

even though

insurance policies,

it

is

plain to see that assaults where the car is the instrumentality
15

of the injury bear the necessary "causal connection," Davis, 345
S.E.2d

at

914-15,

with

the

injuries

and

are

not

the

mere

location of the assault.2

Here,

Parks

suffered injuries during a fight

over control

of the car, the ownership of which was in dispute.

But Parks's

injuries are consistent with an assault,
Myers,

(summarizing

(distinguishing the

in

cases);
facts

over

ownership

See

Wilbur,

Davis,

427

345

and

and

S.E.2d at

S.E.2d

of Wilbur from the injuries

Parker where the victim was

fight

Payne,

and the car was the mere location of that assault and not

the instrumentality of her injuries.
915

as in Davis,

at

sustained

run over by a vehicle) .

control

of

the

Avalon

inside

Marshall's

car

while

located

in

This

could

occurred in Marshall's house when he asked for the keys;
occurred

51

his

have

that it
driveway

2 In most circumstances, to find "use," Georgia courts appear to
require the car to strike something or someone, causing injuries to
the occupants or third parties.
There is authority, however, for
finding "use" when the accidental discharge of guns injures an
occupant, particularly where the discharge occurs while loading or
unloading the guns from the car or because the vehicle encountered
bumpy roads.
E.g., Southeastern Fidelity Ins. Co. v. Stevens, 236
S.E.2d 550, 551 (Ga. Ct. App. 1977); Georgia Farm Bureau Mut. Ins. Co.
v. Burnett, 306 S.E.2d 734, 736 (Ga. Ct. App. 1983).
Burnett is,

perhaps, the closest case in this regard.
In Burnett, the driver
aimed a gun at his passenger and it subsequently discharged.
306
S.E.2d

at

735.

Evidence

supported

the

insured's

theory

that

the

discharge was caused by the vehicle traveling over bumpy roads, thus
arising out of the vehicle's use.
Id. at 736.
The present case is,
however,

more

similar to

Westberry,

discussed above,

where

the

court

determined that the injuries to the taxi driver did not arise out of
the taxi's use.

347

S.E.2d at

689.

16

does not make Parks's injuries arise out of the car's "use."

is also no matter that
In Myers,

backseat

for example,

while

the car was briefly placed in reverse.
the sexual assault happened in the car's

returning

from a

doctor's

court still found that the car was
to

[the victim's]

Myers,

appointment,

injuries as the situs of

Parks's

injuries

use of Marshall's car,

do

not

the Court,

but

the

only "tangentially connected

728 S.E.2d at 789 (citing Payne,

Because

It

the attack

. . . ."

496 S.E.2d at 692).
bear

a

connection

to

the

therefore,

GRANTS State Farm's

motion for summary judgment with respect to

Count I in l:14-cv-

170.3

C. Case
No.
Coverage

State
motorist

l:14-cv-170,

Farm argues

that

coverage because

Count

Parks

II:

she does

not

Motorist

entitled to

is not

Uninsured

uninsured

qualify as

an

"insured"

as defined in the policy and because Marshall's Avalon does not

qualify as an "uninsured motor vehicle" under the policy.

specifically,

3 Just
Marshall's

as

State Farm argues that

in

actions

Part

III.A.,

were

State

intentional

Parks

Farm

is not

also

and,

argues

More

an "insured"

that

therefore,

all

are

of
not

"accidents" under the policy.
Parks, however, argues that, in the
automobile liability coverage context, Georgia courts "have repeatedly
held that both intentional and unintentional acts

Opp.

Br.,

Doc.

26,

Ex.

4 at 5.)

are covered."

(Def.

Because the Court resolves this

motion on the basis of the "ownership, maintenance, and use" clause,
the Court does not reach the question of whether Marshall's acts
constituted an accident under the automobile liability policy.

17

because the policy only covers those using the vehicle within
the

scope of the

named insured's consent,

and Marshall

his consent before the altercation took place.
State

Farm

exception

vehicle"

argues

to

that

the

because

the

policy's

the

Avalon

falls

definition

Avalon

is

"owned

by"

Additionally,

into

of

revoked

the

second

"uninsured

the

named

motor

insured,

Marshall.

In

opposing

Farm's

motion

summary

on

Count

judgment,

I

and

did

Parks

not

only

addressed

respond

to

State

arguments regarding uninsured motorist coverage.

" [A]

State

Farm's
party's

failure to respond to any portion or claim in a motion indicates
such

portion,

party
claim,
v.

fails

claim

to

or

respond

defense

to

an

is

unopposed.

argument

or

.

.

.

otherwise

[W]hen

a

address

a

the Court deems such argument or claim abandoned."

Bank

of

Am.,

N.A.,

(internal

quotations

Ga.,

F.Supp.

306

F.

omitted)

2d

Norfolk S. Ry. Co.,

564

1219,

209 F.

Appfx

432,

(quoting
1221

Supp.

434

Kramer

(N.D.

2d 1301,

Ga.
1324

(11th

Jones

Cir.

2014)

v.Gwinnett

Cty.,

2004);

Hudson

v.

(N.D. Ga. 2001)).

In light

of State Farm's logical argument for why no uninsured

motorist

coverage

Court

GRANTS

exists,

State

Farm's

and

Parks's

motion

for

failure

summary

respect to Count II in Case No. l:14-cv-170.

18

to

respond,
judgment

the
with

IV.

As

discussed,

the

CONCLUSION

Court

summary judgment in Case No.

GRANTS

State

l:14-cv-170.

(Doc.

also GRANTS State Farm's motion in Case No.

21.)

The

Case

No.

Farm's
23.)

motion

for

The Court

l:14-cv-220.

(Doc.

Clerk SHALL enter judgment in favor of State Farm in
l:14-cv-170

and

Case

No.

l:14-cv-220

and

CLOSE

both

cases,

ORDER ENTERED

at

Augusta, Georgia, this

^pQ day of March,

2016,

HONORftBjlE J. RANDAL HALL
UNITED JSTATES DISTRICT JUDGE
50UT41ERN

19

DISTRICT

OF GEORGIA