Riddle v. Heritage Property & Casualty Insurance Company

Filing 39

ORDER granting Defendant Heritage's 25 Motion for Summary Judgment, denying as moot 38 Motion to Strike Plaintiff's supplemental brief, and directing the Clerk to close this case. Signed by Judge Lisa G. Wood on 08/29/2024. (jlh)

In the United States District Court
for the Southern District of Georgia
Brunswick Division
TRAVIS RIDDLE,
Plaintiff,

2:23-CV-06

v.
HERITAGE PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
ORDER

Before the Court is Defendant Heritage Property & Casualty
Insurance Company’s (“Heritage”) motion for summary judgment, dkt.
no. 25, as well as Defendant Heritage’s motion to strike Plaintiff
Travis Riddle’s supplemental brief, dkt. no. 38. The parties have
fully briefed the motions, dkt. nos. 25, 34, 35, 37, 38, and
participated in oral argument before the Court, dkt. no. 36. Thus,
the motions are ripe for review. For the reasons stated below,
Defendant Heritage’s motion for summary judgment is GRANTED and
its motion to strike is DENIED as moot.
BACKGROUND
Plaintiff Travis Riddle owned a house in Atlanta, Georgia,
which Defendant Heritage insured (the “Atlanta house”). Dkt. No.
1-1. In 2021, Plaintiff claimed that the house was vandalized and
certain property had been stolen. Dkt. Nos. 25-1 ¶ 1, 34-2 ¶ 1.

This case arises from Heritage’s denial of an insurance claim filed
by Plaintiff regarding this incident. Dkt. No. 1-1. Heritage argues
that summary judgment is appropriate because the undisputed facts
show

that

Plaintiff

made

material

misrepresentations,

thereby

breaching the insurance contract. Dkt. No. 25 at 2–3.
Plaintiff hails from Brunswick, Georgia. Dkt. No. 25-4 at
16:1–2. He began his career as a carpet cleaner. Id. at 17:7–9.
Thereafter, according to Plaintiff, he wrote a song under the stage
name “Mr. Slim Riddle.” Id. at 17:9–12. The song “went crazy.” Id.
Plaintiff claims he was featured on MTV and BET, and even received
a record deal with Universal Studios. Id. at 17:14–18. Plaintiff
says that he has starred in three movies produced by Amazon Prime.
Id. at 17:23–24. Plaintiff also appeared on Judge Judy, where he
“got third best case.” Id. at 19:3–4. In Plaintiff’s own words, he
“led [the] protest that got nationwide exposure” for the death of
Ahmaud Arbery. Id. at 20:12–19. He also created a music video that
he claims received over 200,000 views online in one day alone and
that President Joe Biden and basketball star LeBron James shared
the video on social media. Id. at 20:12–19, 29:13–15. Aside from
these endeavors, Plaintiff says he ran a food truck, worked as a
carpenter, and operated a restaurant in Brunswick, Georgia. Id. at
21–26. As a result of his many ventures, Plaintiff says that he
achieved financial success. Id. at 81:22–23. As Plaintiff said:
“I’m not really hurting for no money. Like, I got money.” Id.
2

Notably, Plaintiff also makes a living from real estate
investments. Id. at 21:10–15. In 2021, he allegedly owned three
houses in Brunswick, Georgia, and “other properties” in Dixville,
Georgia. Id. at 31:14–20. In terms of his own living situation,
Plaintiff rented an apartment in Brunswick, 1 lived at his mother’s
house and aunt’s house in Brunswick, and lived with his girlfriend
at her condominium in Atlanta. Id. at 37:14–22, 74:1–6. He also
occasionally slept at his Atlanta house in the basement. Id. at
63:14–19. Over the years, Plaintiff has filed multiple insurance
claims for his investment properties, apartments, and personal
property. Id. at 39–46.
In 2007, Plaintiff purchased the house at issue in this case
as an investment. Dkt. No. 25-8 at 1. Until 2021, he used the
Atlanta house as a rental property. Dkt. Nos. 25-1 ¶ 13, 34-2 ¶ 13.
In 2021, a cousin of one tenant allegedly killed another tenant in
the

front

yard

of

the

house.

Id.

at

69:5–11.

Despite

this,

Plaintiff decided to make that house his permanent residence. Id.
at 68:16–18. In February 2021, Plaintiff says that his thengirlfriend, Nia Avery—who did not live in the house or share
ownership of it—filed to evict the remaining tenants living at the
property. Dkt. No. 25-4 at 67:6–25, 68:1–9. These tenants vacated
the home by the end of February 2021. Id. at 73:17–22.
Plaintiff later testified that he had actually bought this
apartment. Dkt. No. 25-5 at 68:1–6.
1

3

On March 9, 2021, Plaintiff applied for a homeowners insurance
policy with Heritage. Dkt. No. 25-8 at 1. On the application,
Plaintiff

stated

that

he

resided

at

the

house.

Id.

Heritage

approved Plaintiff’s application that same day, and the policy
went into effect immediately. Dkt. No. 7-4. The insurance policy
covered the “residence premises,” personal property, loss of use,
and personal liability. Id. at 4, 8.
After Plaintiff obtained the policy with Heritage, he hired
contractors to renovate the house. Dkt. No. 25-4 at 47:12–25,
48:1–14. Then, on May 14, 2021, Heritage notified Plaintiff that
it was canceling his insurance policy effective June 12, 2021.
Dkt. No. 25-9. Heritage cited multiple reasons for its cancelation,
including excessive debris on the property, excessive liability
exposure

because

of

the

renovations,

and

the

house

being

a

“vacant/unoccupied dwelling.” 2 Id. at 2.
Much activity occurred within the short time frame between
notification of cancellation of insurance and the cancellation
date. On May 25, 2021, Plaintiff fired the contractor performing
the renovations. Dkt. No. 25-4 at 74:16–23. The same day, Plaintiff
In support of its contention that Plaintiff’s Atlanta house was
vacant or unoccupied, Heritage cites power and water utility bills
that allegedly show no power or water usage at the property from
March 2021 to May 2021. Dkt. No. 25-1 ¶ 19. These bills, however,
do not exist in the record. Plaintiff admitted during his
deposition that the water bills show no usage during these months.
Dkt. No. 25-5 at 90:16–25, 91:1–3. He made no such admission as to
the power bills. Id. at 93:18–25, 94:1–25, 95:1–13.
2

4

directed Avery to conduct a video walk-through of the house to
document its present state. Dkt. No. 25-4 at 57:19–20, 79:5–17;
Dkt. No. 25-7 ¶ 22. Plaintiff asserts that the house was vandalized
just hours after the video was made. Dkt. No. 25-4 at 57:19–21,
75:10–23. Avery discovered the vandalism on May 26, 2021. Dkt. No.
25-4 at 57:19–21, 75:10–23. She made another video walk-through
showing the damage. Dkt. No. 25-2 at 21:18–25; Dkt. No. 25-4 at
75:10–25, 76:15–18. No videos were entered into the record in this
case. When questioned, Plaintiff did not remember where he was
during the vandalism incident, but he knew he “wasn’t in Atlanta
because if [he] had been in Atlanta [he] would have been in prison
for real.” Dkt. No. 25-4 at 76:5–8.
When Avery discovered the vandalism, she contacted the South
Fulton

Police

investigation,

Department.
the

police

Dkt.
found:

No.

25-11.

“damage[]

to

During

their

multiple

walls

throughout the home, a window in the living room appeared to be
broken, and there was tile broken on the floor in the basement.”
Id. at 3. Avery did not report any stolen property, and the May
26, 2021 report itself did not identify stolen property of any
kind. Id. That same day, Plaintiff submitted a claim to Heritage.
Dkt. No. 25-12. He claimed that the vandal “put holes in the
walls,” destroyed electrical outlets and handrails, broke a shower
door, broke a window, damaged a ceiling fan, and removed a stove.
Id. at 1. He also said that he was “unsure if any items were
5

taken.” Id. Almost two months later, on July 19, 2021, Plaintiff,
himself, sought to update the police report. Dkt. No. 25-13. In
the updated version, Plaintiff sent the police a list of stolen
property. Id. Plaintiff’s list mentioned—for the first time—two
Samsung televisions which Plaintiff identified as measuring over
seven feet (eighty-five inches) each. Id. at 7.
Meanwhile, back in Brunswick, on August 16, 2021, Plaintiff
filed a notice of candidacy to run for the office of Mayor of
Brunswick. Dkt. No. 25-6. The notice is a sworn election document.
Id. In the election document, Plaintiff swore that he had resided
at a Brunswick address, had a Brunswick post office address, and
owned a Brunswick business named “Country Boy Cooking.” Id. at 1.
Plaintiff also swore that he had been a legal resident of Glynn
County, Georgia, for one-and-one-half years. Id. According to
Plaintiff’s sworn election statement, then, he had resided in
Brunswick, Georgia, from approximately February of 2020 until
August of 2021. Ultimately, Plaintiff lost his bid for mayor. 3 Id.
at 67:10–13.
Heritage investigated Plaintiff’s insurance claim. Dkt. No.
25-14. On December 2, 2021, Heritage examined Plaintiff under oath
and requested that he produce documents and evidence to support
his claim. Id.; Dkt. No. 25-4. During Plaintiff’s examination under
He received 101 votes. GLYNN CNTY. BD.
ELECTION SUMMARY REPORT (2021).
3

6

OF

ELECTIONS & REGISTRATION,

oath, he made multiple new damage claims for the first time. Dkt.
No. 25-4 at 85:8–23. Specifically, he claimed that the vandals
knocked over a refrigerator, which caused extensive flooding. Id.
As Plaintiff said, “the water was just running, the water was just
flowing, flowing, flowing, flowing.” Id. at 85:10–12. According to
Plaintiff, the flooding caused major damage to the main floor and
basement of the house. Id. The police report does not mention
flooding or a knocked-over refrigerator. Dkt. No. 25-11. Avery,
who discovered and reported the vandalism, confirmed there was no
“refrigerator that was tipped over or leaking water.” Dkt. No. 257 ¶ 25.
Heritage

also

questioned

Plaintiff

about

the

two

giant

televisions that he claimed were stolen. Dkt. No. 25-4 at 138–39.
Plaintiff provided sworn details about the exact location of the
televisions for which he sought insurance payment. Plaintiff swore
under oath that “[t]here was one [television] over the fireplace
and one [television] in the master bedroom.” Id. at 139:6–7. He
also swore that he owned the televisions and that they had been
gifts from Avery. Id. at 140:9–14.
On February 7, 2022, Plaintiff submitted a Sworn Statement in
Proof of Loss (“SSPOL”) as part of Heritage’s investigation. Dkt.
No. 7-3. In the SSPOL, Plaintiff identified building damages of
$125,609, personal property damages of $19,900, and loss-of-use

7

damages of $15,200. 4 Id. The amount claimed by Plaintiff in the
SSPOL included the loss of the two giant televisions. Dkt. No. 255 at 33:1–25, 34:1–3.
Heritage found Plaintiff’s claimed damages in the SSPOL to be
suspicious. Dkt. No. 7-1. Aside from the tally of personal property
damages, Plaintiff claimed significant living expenses (i.e. lossof-use damages), insisting that he lived in hotels between May 26,
2021, and December 2, 2021. Dkt. No. 25-4 at 172:5–25, 173:1–20.
He did not provide proof of these expenses to Heritage, dkt. no.
7-1, and no evidence of Plaintiff’s living expenses exists in the
record.
On June 7, 2021, Heritage denied Plaintiff’s claim. Id.
Heritage gave two reasons for its denial. Id. at 4–5. First,
Heritage concluded that Plaintiff breached the insurance policy’s
“Concealment or Fraud” provision. Id. This provision states that
“[Heritage] provide[s] coverage to no ‘insureds’ under this policy
if,

whether

before

or

after

a

loss,

an

‘insured’

has”:

(1)

“[i]ntentionally concealed or misrepresented any material fact or
circumstance”;

(2)

“[e]ngaged

in

fraudulent

conduct”;

or

(3)

“[m]ade false statements.” Dkt. No. 7-4 at 23. This provision
applies only to statements made “relating to this insurance.” Id.
These amounts, when added together, total $160,709. On the SSPOL,
however, Plaintiff claims “total loss and damage” in the amount of
$158,009. The Court considers this discrepancy to be immaterial to
resolution of the present motion.
4

8

The contract also includes a separate fraud provision, which
states: “Any person who knowingly presents a false or fraudulent
claim for payment of a loss or benefit or knowingly presents false
information in an application for insurance is guilty of a crime
and may be subject to fines and confinement in prison.” Id. at 47.
Heritage determined that Plaintiff lied about his residency at the
Atlanta house, his stolen personal property, and his additional
living expenses. Dkt. No. 7-1 at 4.
Second,

Heritage

denied

Plaintiff’s

claim

because

it

concluded the Atlanta house had been vacant for more than sixty
days preceding the vandalism incident. Id. at 5. Heritage explained
in

its

denial

letter

that

Plaintiff’s

policy

did

not

afford

coverage for vandalism if the property was vacant or unoccupied
for “more than 60 consecutive days immediately before the loss.”
Id. For these reasons, Heritage denied Plaintiff’s claim in its
entirety. Id.
After

Heritage

denied

Plaintiff’s

claim,

he

filed

this

action. Dkt. No. 1-1. Plaintiff claims that Heritage breached the
insurance policy by declining coverage and that Heritage acted in
bad faith, entitling him to damages pursuant to O.C.G.A. § 33-46. Id.
After Plaintiff filed this case, Heritage again had the
opportunity

to

question

him

under

oath.

Dkt.

No.

25-5.

When

Heritage deposed Plaintiff in 2023, he was working as a restaurant
9

manager in Maryland and renting a house there. Dkt. No. 25-5 at
12:15–24.

The

status

of

Plaintiff’s

investment

real

estate

portfolio was unclear at that time. Plaintiff did claim, however,
that he had recently started multiple food catering companies,
acquired new rental properties, and founded a trucking company
called “MSR” in Brunswick. Id. at 61–62.
Notably, during Plaintiff’s deposition, his previous sworn
testimony about the giant stolen televisions unraveled. Plaintiff
admitted that the televisions belonged to Avery and that he had
never seen the televisions in the Atlanta house. Id. at 30:12–25,
44:20–25, 45:1–2, 48:18–25. At one point, Plaintiff claimed that
“when [Avery] filed the police report [she said] that those TVs
were missing out of the home.” Id. at 30:14–15. Plaintiff testified
that “it was told to [him] in the police report they were no longer
there.” Id. at 31:17–19. Importantly, the police reports were
located and reveal that Avery never submitted a report of missing
property. Dkt. No. 25-11. Indeed, no report or evidence was ever
submitted showing that anyone reported missing property until two
months after the vandalism, when Plaintiff added a report that two
televisions had been stolen. Dkt. No. 25-13. Avery testified that
her televisions were never at Plaintiff’s house, were not stolen
from Plaintiff’s property, and she did not report them as stolen.
Dkt. No. 25-7 ¶¶ 27–31.

10

Heritage

now

moves

for

summary

judgment

on

Plaintiff’s

claims. Dkt. No. 25. The Court heard oral argument on this motion
on June 6, 2024. Dkt. No. 36. At the hearing, Plaintiff’s attorney
adhered to this second version of the story Plaintiff provided,
the version in Plaintiff’s deposition: Plaintiff never saw the
televisions

but

had

been

informed

that

they

were

stolen.

Plaintiff’s counsel also admitted in full candor that he could not
explain how Plaintiff arrived at his $15,200 loss-of-use damages
and that no evidence in the record supported that amount.
LEGAL AUTHORITY
The Court should grant summary judgment if “there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party
seeking summary judgment

“bears

the

initial

responsibility

of

informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (internal quotation marks omitted).
Facts are “material” if they could affect the outcome of the
suit under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of those material
facts “is ‘genuine’ . . . if the evidence is such that a reasonable
11

jury could return a verdict for the nonmoving party.” Id. “The
mere existence of a scintilla of evidence in support of the
[nonmovant’s] position will be insufficient” for a jury to return
a verdict for the nonmoving party. Id. at 252. Additionally, the
party

opposing

summary

judgment

“may

not

rest

upon

the

mere

allegations or denials in [her] pleadings. Rather, [her] responses
. . . must set forth specific facts showing that there is a genuine
issue for trial.” Walker v. Darby, 911 F.2d 1573, 1576-77 (11th
Cir. 1990).
The

Court

views

the

record

evidence

“in

the

light

most

favorable to the [nonmovant],” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and will draw all
justifiable inferences in the nonmovant’s favor, Anderson, 477
U.S. at 255.
DISCUSSION
I.

Interpreting Insurance Contracts Under Georgia Law
Under Georgia law,
[i]t is well settled that insurance policies, even when
ambiguous, are to be construed by the court, and no jury
question is presented unless an ambiguity remains after
application of the applicable rules of contract
construction. Because insurance policies are contracts
of adhesion, drawn by the legal draftsman of the insurer,
they are to be construed as reasonably understood by an
insured.

First Fin. Ins. v. Am. Sandblasting Co., 477 S.E.2d 390, 391–92
(Ga. Ct. App. 1996) (citation omitted). “The policy should be read
12

as a layman would read it and not as it might be analyzed by an
insurance expert or an attorney.” Cincinnati Ins. Co. v. Davis,
265 S.E.2d 102, 105 (Ga. Ct. App. 1980). “The test is not what the
insurer intended its words to mean, but what a reasonable person
in the position of the insured would understand them to mean.”
U.S. Fire Ins. Co. v. Cap. Ford Truck Sales, 355 S.E.2d 428, 429
(Ga. 1987) (internal quotation marks and citation omitted).
“If a provision of an insurance contract is susceptible of
two or more constructions, even when the multiple constructions
are all logical and reasonable, it is ambiguous, and the statutory
rules of contract construction will be applied.” Lee v. Mercury
Ins. Co. of Ga., 808 S.E.2d 116, 123 (Ga. Ct. App. 2017) (internal
quotation

marks

omitted)

(alterations

adopted)

(quoting

Am.

Strategic Ins. v. Helm, 759 S.E.2d 563, 565 (Ga. Ct. App. 2014)).
And if a provision of an insurance contract is ambiguous, the
contract “will be construed against the party preparing it and in
favor of coverage.” Alewine v. Horace Mann Ins., 398 S.E.2d 756,
757 (Ga. Ct. App. 1990) (citation omitted). Georgia courts define
“ambiguity”

as

“duplicity,

indistinctness,

an

uncertainty

of

meaning or expression.” Tarbutton v. Duggan, 163 S.E. 298, 298
(Ga. Ct. App. 1932); see also Lee, 808 S.E.2d at 732–33. If the
language of the contract is “plain, unambiguous, and capable of
only

one

reasonable

interpretation,”

the

language

“must

be

afforded its literal meaning and plain ordinary words given their
13

usual significance.” Longstreet v. Decker, 717 S.E.2d 513, 516
(Ga.

Ct.

App.

2011)

(internal

quotation

marks

and

citation

omitted). In other words, if the contract’s terms are plain and
unambiguous, the Court will apply those terms as written.
II.

Interpretation of Plaintiff’s Insurance Policy
Defendant Heritage spends a great deal of effort marshalling

all of the facts regarding where, and for how long, Plaintiff
resided at various locations. It does so in order to show whether
or not Plaintiff was residing on the premises and whether or not
the premises were vacant. Ultimately—and barely—the Court finds
such facts are in dispute. Not so with regard to the issue of
concealment or fraud.
Plaintiff

argues

that

the

policy’s

concealment

or

fraud

provision contains an ambiguity. Dkt. No. 34 at 22. Specifically,
Plaintiff contends this section contains a double negative, which
renders it ambiguous. Id. Plaintiff is wrong. His error stems from
the fact that he incorrectly quotes the provision. Plaintiff’s
version of the contract states: “We provide no coverage to no
‘insureds’ under this policy” if the insured makes false statements
or misrepresentations. Id. at 21 (emphasis added). The contract’s
actual language states: “We provide coverage to no ‘insureds’ under
this policy.” Dkt. No. 7-4 at 23.
Absent Plaintiff’s mistaken inclusion of the double negative,
the actual provision’s terms are plain and unambiguous. The policy
14

precludes coverage if the insured commits fraud or provides false
information. Id. at 32. Reading this provision as a lay person
would, it is clear that Heritage could deny coverage entirely if
Plaintiff intentionally concealed or misrepresented any material
fact or circumstance; engaged in fraudulent conduct; or made false
statements regarding his insurance. Id. Because the concealment or
fraud

provision

is

“capable

of

only

one

reasonable

interpretation,” the Court will apply the terms of the provision
as written. Longstreet, 717 S.E.2d at 516. The Court declines to
insert an additional “no” into the actual language of the contract.
III.

The

Undisputed

Facts

Show

that

Plaintiff

Breached

the

Concealment or Fraud Provision.
“Under a misrepresentation clause, a willful and intentional
misrepresentation

of

material

facts

made

for

the

purpose

of

defrauding the insurer will void the contract.” Perry v. State
Farm Fire & Casualty Co., 734 F.2d 1441, 1443 (11th Cir. 1984)
(citing Am. Alliance Ins. Co. v. Pyle, 8 S.E.2d 154, 160 (Ga. Ct.
App. 1940)). “A misrepresentation is material if it might affect
the insurer’s action in respect to settlement or adjustment of the
claim

of

the

insured.”

Id.

(alterations

adopted)

(internal

quotation marks omitted). The insurer, however, “need not actually
rely on the representation or suffer any prejudice therefrom.” Id.
(citing Pittman v. Am. Mut. Fire Ins. Co., 199 S.E.2d 893, 894
(Ga. Ct. App. 1973)). “Whether a misrepresentation is material is
15

a jury question, unless the evidence excludes every reasonable
inference

except

that

there

was

or

was

not

a

material

misrepresentation.” Id. at 1444 (citing United Family Life Ins.
Co. v. Shirley, 248 S.E.2d 635, 636 (Ga. 1978)).
In

this

case,

the

undisputed

evidence

establishes

that

Plaintiff made material misrepresentations about the two sevenfoot televisions. In December 2021, Plaintiff told Heritage that
he owned the televisions and that they were both in the house at
the time of the vandalism incident. Dkt. No. 25-4 at 138:23–25,
139:1–16.

Specifically,

Plaintiff

stated

under

oath

that

one

television was in the living room and the other was in the master
bedroom. Id. Plaintiff’s story changed at his August 25, 2023 sworn
deposition. When deposed, Plaintiff admitted that he had never
seen the televisions in his house. Dkt. No. 25-5 at 44:24–25, 45:1.
He also said that he “never physically put [his] hands on those
TVs” and that he “never physically saw the TVs in [his] home.”
Dkt. No. 25-5 at 32:8–9, 34:19–20. Moreover, Plaintiff admitted
that it was actually Avery who owned the televisions. See id. at
34:19–25 (referring to the televisions as Avery’s), 45:1–2 (same),
48:22–23 (“[E]verything in [the list of stolen items] is mine
except right here where it say [sic] these 85-inch TVs.”).
Plaintiff also made misstatements about the police report and
Avery’s

statements

to

the

police.

He

told

Heritage

in

his

deposition that the initial police report listed the televisions
16

as stolen. Id. at 30:13–15, 31:16–19. Heritage was able to obtain
the initial police report. It appears in the record, dkt. no. 2511,

and

it

says

nothing

about

televisions.

Plaintiff

never

uncovered or produced a competing version of the initial report
nor provided any proof that it was altered. He told Heritage that
Avery reported the televisions as stolen when the police searched
his house on May 26, 2021. Dkt. No. 25-5 30:13–15. She did not.
Dkt. Nos. 25-11, 25-7 ¶¶ 28, 31. Plaintiff may personally attempt
to dispute the evidence by stating that “it was told to [him] in
the police report they were no longer there,” dkt. no. 25-5 at
31:17–19, but this alone in no way creates a genuine dispute of
fact. It is, all at the same time, a fine point, an important
point, and—perhaps—a self-evident point, that a party does not
create a factual dispute by testifying that a document tells him
something that it actually does not say. Saying a dollar bill tells
you it’s a ten does not change its value. See Anderson, 477 U.S.
at 248 (“[A] party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.” (internal quotation marks and
citation omitted)).
Plaintiff’s misrepresentations were material. The ownership
of the televisions and whether they were stolen from the house
are, without question, issues that “might affect the insurer’s
17

action in respect to settlement or adjustment of the claim of the
insured.”

Perry,

734

F.2d

at

1443.

Plaintiff’s

policy

differentiates between coverage for personal property owned by the
insured and property owned by non-insureds. Dkt. No. 7-4 at 9.
Therefore,

whether

Plaintiff

or,

instead,

Avery

owned

the

televisions affects Heritage’s coverage of the property. Moreover,
the location of the televisions affects Heritage’s coverage. Id.
If Avery owned the televisions—as Plaintiff admitted finally in
his deposition—then Heritage would only cover their loss if the
televisions were “on the part of the residence premises occupied
by an insured.” Id. If Avery’s televisions were not located in the
house, Heritage would not be obligated to cover them at all. Id.
If the televisions belonged to Plaintiff, Heritage would cover
them

regardless

of

their

location.

Id.

Plaintiff’s

misrepresentations are material. His first version—the one that
formed the basis of his claim and lawsuit—if true, would justify
coverage. The final version, rendered during cross examination
during discovery, does not. At first, Plaintiff claimed that he
owned the televisions and that they were stolen directly from the
Atlanta house. Dkt. No. 25-4 at 138:23–25, 139:1–16. The policy
would clearly cover this type of loss. He later admitted under
oath: Avery owned the televisions and that he had never seen them
in the house. Dkt. No. 25-5 at 34:19–25, 44:24–25, 45:1–2, 48:22–
23. For her part, Avery testified that she owned the televisions,
18

never brought them to Plaintiff’s house, and never saw them in
Plaintiff’s house. Dkt. No. 25-7 ¶¶ 28, 31.
Essentially, Plaintiff has admitted all this in his response
to Heritage’s statement of material facts. In its statement,
Heritage stated: “The televisions, in particular, belonged not to
Plaintiff, but his then-girlfriend, Ms. Avery, and at all times
were kept in her midtown Atlanta condo unit.” Dkt. No. 25-1 ¶ 30.
In his response, Plaintiff said: “Ms. Avery has reported to the
police department that the televisions were stolen. Also the policy
covered the property of others that was at the residence.” Dkt.
No. 34-2 ¶ 30. Again, Plaintiff has provided no evidence that Avery
reported stolen televisions to the police. Nor is there salvation
in typing the words “[a]lso the policy covered the property of
others that was at the residence.” That is Defendant’s point. Even
Plaintiff now admits the televisions were not at the residence.
Resultingly, Plaintiff admits that Avery owned the televisions and
that they were never in his house. Because an uninsured owned the
televisions and the televisions were not located in Plaintiff’s
house, the policy would not cover their so-called theft. And so,
by lying about the ownership and location of the televisions,
Plaintiff made material misrepresentations.
Thirdly,

although

overkill,

whether

the

televisions

were

stolen or not obviously affects the amount of money that Heritage
might be required to pay for coverage.
19

Plaintiff

originally

told

Heritage,

under

oath,

that

he

learned of the televisions’ theft from the May 26, 2021 police
report. Dkt. No. 25-5 at 30:10–11 (“[B]oth of those TVs was [sic]
filed as items missing from my home.”), 30:14–15 (“[T]he police
report say [sic] that those TVs were missing out of the home.”).
The undisputed evidence shows that no such report exists. The May
26, 2021 police report does not mention the theft of any property.
Dkt. No. 25-11. Avery did not report any stolen property to the
police. Id. The first and only mention of stolen televisions came
from a missing property list written and submitted to the police
by Plaintiff himself. Dkt. No. 25-13. But again, during the course
of this case, Plaintiff changed his story and has now admitted
that “at all times [the TVs] were kept in [Avery’s] midtown Atlanta
condo.” Dkt. No. 25-1 ¶ 30; Dkt. No. 34-2 ¶ 30. The televisions
could not have been stolen from Plaintiff’s house if they were
never in his house.
In

short,

Plaintiff

materially

misrepresented

the

theft,

ownership, and location of the televisions. While the materiality
of a misrepresentation is typically a jury question, the evidence
in this case “excludes every reasonable inference except” that
there were material misrepresentations. Perry, 734 F.2d at 1444.
Given this, a jury need not decide materiality. See, e.g., Liberty
Corporate Cap., Ltd. v. Bhanu Mgmt., 161 F. Supp. 3d 1307, 1318–
21

(S.D.

Ga.

2015)

(finding

that
20

the

undisputed

evidence

established

“that

[the

claimant’s]

misrepresentations

of

the

extent of its losses were material to the adjustment of the
claim”); Assurance Co. of Am. v. Defoor Station, LLC, No. 1:09CV-3198, 2011 WL 5598900, at *5 (N.D. Ga. Nov. 15, 2011) (finding
that

the

undisputed

evidence

established

material

misrepresentations and that the claimant’s unsupported statements
contradicting the evidence did not create a material fact issue
for summary judgment); Perspolis, Inc. v. Federated Mut. Ins. Co.,
No. 1:03-CV-2456, 2006 WL 826469, at *2 (N.D. Ga. Mar. 28, 2006)
(finding

that

an

insurance

company

“properly

invoked

the

‘concealment, misrepresentation or fraud’ provision” because the
evidence established that the plaintiff claimant “intentionally
misrepresented a material fact”).
Applying the terms of the concealment or fraud provision in
Plaintiff’s policy, Plaintiff’s misrepresentations were willful,
intentional, and intended to defraud Heritage. “An intent to
defraud

can

be

inferred

when

the

misrepresentation

is

made

willfully and intentionally.” Fiveash v. Allstate Ins. Co., 603 F.
App’x 773, 775 (11th Cir. 2015). In other words, “[t]here must be
a willful intent to defraud rather than an innocent mistake.” Id.
at 776 (citing Watertown Fire Ins. Co. v. Grehan, 74 Ga. 642, 65657 (1885)). The record reflects that Plaintiff acted willfully and
intentionally

in

misrepresenting

the

theft,

ownership,

and

location of the televisions. Plaintiff alone submitted the missing
21

property list that first mentioned the televisions. Plaintiff
alone told Heritage that he owned the televisions and told them
exactly where they were in his house. When Heritage investigated
Plaintiff’s claim, he did not retract these statements or tell
Heritage that he was mistaken. He entirely changed his story.
Instead of Plaintiff owning the televisions, Avery owned them.
Instead of knowing the exact locations of the televisions, he had
never seen them before. Instead of Plaintiff reporting the theft
of the televisions, Avery reported the theft in the May 26, 2021
police report.
Plaintiff even had an opportunity to correct his testimony
from the December 2, 2021 examination under oath. Dkt. No. 25-5 at
15–18. Following this first examination, Plaintiff received an
errata sheet. Id. at 16:14–25. At his deposition, Plaintiff agreed
that he “had an opportunity to read [his testimony from the
December 2, 2021 examination under oath] all in as much detail as
[he] wanted to,” but “ended up not making any changes to [his]
testimony.” Id. at 17:11–21. No evidence was submitted showing the
misrepresentations were innocent or accidental.
Importantly, Plaintiff told two mutually exclusive stories.
As both versions of the same event cannot be true, Plaintiff either
told a falsehood in his first story, told a falsehood in his

22

second, or did so in both. 5 The result is the same: Plaintiff
violated

the

undisputed

policy’s
evidence

concealment
shows

that

or

fraud

provision.

Plaintiff

The

intentionally

misrepresented material facts, engaged in fraudulent conduct, and
made false statements relating to his insurance. See Dkt. No. 7-4
at 23. Because he breached this provision, Heritage could deny
coverage of Plaintiff’s claim in its entirety. Id.
Although
additional

Heritage

examples

of

has

put

fraudulent

forth

arguments

to

misrepresentations

support
plaguing

Plaintiff’s claim (e.g., the request for $15,200 of living expenses
for which there is no documentation), it is unnecessary to resolve
the

list.

Plaintiff’s

misrepresentations

about

the

seven-foot

televisions are alone sufficient to invalidate his entire claim.

This conclusion derives from De Morgan’s laws for logical
propositions. See Morton L. Schagrin & G.E. Hughes, Formal Logic,
ENCYCLOPEDIA
BRITANNICA
(last
updated
May
9,
2024),
https://www.britannica.com/topic/formal-logic. “The negation of
the conjunction of two propositions . . . is equivalent to the
disjunction of the negations of those propositions.” Andy Hayes &
Vincent
Wu,
De
Morgan’s
Laws,
BRILLIANT,
https://brilliant.org/wiki/de-morgans-laws/. This means that if
two propositions cannot both be true, then either one proposition
is false or both are false. Id. In the classic example, if two men
both claim to be Jesus, either one man is wrong or both are wrong,
but both cannot be right. The same principle applies here.
Plaintiff, under oath, provided two representations to Heritage:
(1) he owned the televisions and knew their locations in his house,
and (2) he did not own the televisions and never saw them in his
house. Both propositions cannot be true. Applying De Morgan’s law,
then, either one of Plaintiff’s representations is false or both
are false. Put briefly, Plaintiff misrepresented the facts
supporting his claim for the televisions.
5

23

The law cannot spot Plaintiff one misrepresentation while allowing
the remainder of his $158,009 claim to survive. His material
misrepresentations
Heritage

is,

about

therefore,

the

televisions

entitled

to

preclude

summary

coverage.

judgment

on

Plaintiff’s claim for policy proceeds and attorney’s fees.
IV.

Plaintiff Cannot Satisfy O.C.G.A. § 33-4-6’s Requirements.
Because Defendant is entitled to prevail on the coverage

issue, it is, therefore, entitled to prevail on any claim that it
denied coverage in bad faith. Even if there were a dispute of
material fact on the coverage claim, summary judgment is warranted
for Heritage on the bad faith claim, because Heritage had nonfrivolous grounds for denying the claim.
As the Eleventh Circuit recently explained, “O.C.G.A. § 334-6 is not a strict liability statute. An insurance company that
fails to make a payment on a covered claim within sixty days of a
demand faces a penalty only if its nonpayment was motivated by bad
faith.” Turner v. CMFG Life Ins. Co., No. 23-11387, 2023 WL
5527748, at *2 (11th Cir. Aug. 28, 2023) (citing Lavoi Corp. v.
Nat’l Fire Ins. of Hartford, 666 S.E.2d 387, 391 (Ga. Ct. App.
2008)). “[B]ad faith . . . is defined as any frivolous and
unfounded refusal in law or in fact to comply with the demand of
the policyholder to pay according to the terms of the policy.” Ga.
Farm Bureau Mut. Ins. Co. v. Williams, 597 S.E.2d 430, 432 (Ga.
Ct. App. 2004) (internal quotation marks omitted) (quoting Fortson
24

v. Cotton States Mut. Ins. Co., 308 S.E.2d 382, 384 (Ga. Ct. App.
1983)).
O.C.G.A. § 33-4-6 imposes a penalty. Turner, 2023 WL 5527748,
at *2. Penalties and forfeitures are not favored under Georgia
law. S. Gen. Ins. Co. v. Kent, 370 S.E.2d 663, 665 (Ga. Ct. App.
1988) (citation omitted). For that reason, the right to recover
under O.C.G.A. § 33-4-6 “must be clearly shown” and the statute’s
requirements “are strictly construed.” Turner, 2023 WL 5527748, at
*2 (internal quotation marks and citations omitted). Bad faith
penalties are not authorized if “the insurance company has any
reasonable ground to contest the claim” and if “there is a disputed
question of fact” as to the validity of the claim. Allstate Ins.
Co. v. Smith, 597 S.E.2d 500, 502 (Ga. Ct. App. 2004) (internal
quotation marks and citation omitted).
As the insured party, Plaintiff bears the burden of proving
Heritage’s bad faith. Ga. Farm Bureau Mut. Ins. Co., 597 S.E.2d at
432. To avoid summary judgment, Plaintiff must provide evidence of
Heritage’s bad faith capable of putting the issue into genuine
dispute. He has not.
Heritage has brought forth considerable evidence calling into
question

material

issues

of

coverage,

including

vacancy,

residency, and loss of use. Significantly, Heritage was able to
show

that

Plaintiff

materially

misrepresented

his

claim

for

insurance coverage for the two televisions that were not in his
25

home and not owned by him and not subjected to theft as he
originally claimed. Plaintiff provided ample reason for Heritage
to contest his claim.
Beginning with Plaintiff’s residency, when he applied for his
policy in March 2021, he said that the Atlanta house was his
primary residence. Dkt. No. 25-8 at 1. When Plaintiff filed to run
for mayor in August 2021, however, he said that he had been a
resident of Glynn County for over a year. Dkt. No. 25-6. Plaintiff
admitted his water bills for March, April, and May of 2021 show a
lack of water usage for those months at the Atlanta house. Dkt.
No. 25-5 at 90:16–25, 91:1–3. Given these facts, Heritage’s refusal
to provide coverage because it concluded the house had been vacant
was not “frivolous and unfounded.” See Ga. Farm Bureau Mut. Ins.
Co., 597 S.E.2d at 432.
Heritage
Plaintiff’s

also

claim

did

not

because

act
he

in

failed

bad
to

faith

when

provide

any

it

denied

evidence

supporting his loss-of-use claim. Plaintiff claimed that he lived
in hotels from May to December of 2021, incurring over $15,000 in
expenses. Dkt. No. 25-4 at 172:5–25, 173:1–20; Dkt. No. 7-3 at 1.
Yet, Plaintiff did not provide a single receipt or any proof of
these expenses. When pressed further about this at his deposition,
Plaintiff could not even name a location at which he temporarily
lived. Dkt. No. 25-5 at 99:8–12. Plaintiff could not explain why
he had to live in hotels and other locations for months when he
26

supposedly owned multiple residences. Dkt. No. 25-4 at 171–74.
Heritage did not act in bad faith and had a reasonable ground to
refuse coverage for loss-of-use.
Finally,
Plaintiff’s

Heritage

did

entire

claim

misrepresentations.

As

the

not

act

in

because
Court

bad
of

explained

faith
his
above,

by

denying
material

Plaintiff

provided materially false statements about the theft, ownership,
and location of the two seven-foot televisions. Heritage did not
act frivolously or unreasonably by invoking the concealment or
fraud provision in Plaintiff’s policy.
Looking

at

the

totality

of

the

circumstances

underlying

Heritage’s denial of coverage, Plaintiff has not clearly shown a
genuine dispute of material fact that Heritage violated O.C.G.A.
§ 33-4-6. Therefore, Heritage’s motion for summary judgment as to
Plaintiff’s § 33-4-6 claim is GRANTED.
CONCLUSION
For these reasons, Defendant Heritage’s motion for summary
judgment, dkt. no. 25, is GRANTED. Heritage’s motion to strike
Plaintiff’s supplemental brief, dkt. no. 38, is thus DENIED as
moot. There being no claims remaining in this action, the Clerk is
DIRECTED to close this case.

27

SO ORDERED this 29th day of August, 2024.

_________________________________
HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

28