Maryland Casualty Company et al v. Dublin Eye Associates, P.C. et al

Filing 109

ORDER granting 93 Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of Plaintiffs, terminate all other pending motions and deadlines, and close this case. Signed by Chief Judge J. Randal Hall on 09/06/2018. (maa)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION

ZURICH AMERICAN INSURANCE

*

COMPANY, as successor by merger
to Maryland Casualty Company;

*
*

and FOREMOST SIGNATURE

*

INSURANCE COMPANY,

*

Plaintiffs,
CV 315-081

V.

DR. JAMES Y. JONES,
Defendant.

ORDER

Presently

before

summary judgment.

the
of

is

Plaintiffs'

for

The Clerk of Court gave Defendant

summary judgment

Wainwright,

772 F.2d

have been satisfied.

file

the summary

(Doc.

notice

to

and

materials in opposition, and the consequences of default.
the

right

motion

other

Therefore,

the

motion

or

94.)

rules,

Court

(Doc. 93.)

timely notice of
judgment

the

requirements

822, 825 (11th

Cir.

motion is
record

filing materials in
ripe for

evidence,

of

1985)

Griffith
(per

v.

curiam),

Defendant filed a response in opposition,

and Plaintiffs filed a reply in support.

time for

affidavits

opposition has

consideration.

relevant

(Docs. 101, 106.)

law,

and

briefs, Plaintiffs' motion is GRANTED.

Upon
the

expired,

consideration
parties'

The

and

the

of

the

respective

I. BACKGROUND^
At all times relevant to the instant lawsuit, Defendant was

an employee, shareholder, and officer of Dublin Eye Associates,
P.C.

C'DEA") in Dublin, Georgia.

(Pis. Reply to Def.'s Resp.
'

to Pis. St. of Mat. Facts ( PRDRPSMF"), Doc. 106-1,^ SlSl 1-2.)
'

^ Federal Rule of Civil Procedure 56(c) requires that "[a] party asserting
that a fact cannot be or is genuinely disputed must support the assertion by
. . . citing to particular parts of materials in the record." Fed. R. Civ P.
56(c)(1)(A) (emphasis added); see also Fed. R. Civ. P. 56(c)(3) ("The court
need consider only the cited materials, but it may consider other materials
in the record."); Fed. R. Civ. P. 56(e) ("If a party fails to properly support
an assertion of fact or fails to properly address another party's assertion
of fact as required by Rule 56(c), the court may: . . . (2) consider the fact
undisputed for purposes of the motion; [or] (3) grant summary judgment if the
motion and supporting materials — including the facts considered undisputed —
show that the movant is entitled to it . . . .").

This Court's local rules

further require that "in addition to the brief [in support of a motion for
summary judgment], there shall be annexed to the motion a separate, short and
concise statement

of

the

material

facts

as

to

which

it

is

contended

there

exists no genuine dispute to be tried."
LR 56.1, SDGa (emphasis added).
These local rules further provide that "[a]11 material facts set forth in the
statement required to be served by the moving party will be deemed to be
admitted unless controverted by a statement served by the opposing party."
Id. (emphasis added).
Moreover, they require that "[e]ach statement of
material fact shall be supported by a citation to the record." Id. (emphasis
added). Because many of Defendant's denials and assertions, provided without
citations to particular parts of materials in the record, are insufficient to
satisfy his aforementioned obligations, these inadequately-supported denials
and assertions need not be considered by the Court.
See Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 920-22 (7th Cir. 1994) ("[B]ecause summary
judgment is not a paper trial, the district court's role in deciding the
motion is not to sift through the evidence, pondering the nuances and
inconsistencies, and decide whom to believe.

The court has one task and one

task only: to decide, based on the evidence of record, whether there is any
material dispute of fact that requires a trial. The parties, in turn, bear a
concomitant burden to identify the evidence that will facilitate this
assessment. . . . [D]istrict courts are not obliged in our adversary system
to scour the record looking for factual disputes and may adopt local rules
reasonably designed to streamline the resolution of summary judgment motions.
We have . . . repeatedly upheld the strict enforcement of these rules,
sustaining the entry of summary judgment when the non-movant has failed to
submit a factual statement in the form called for by the pertinent rule and
thereby conceded the movant's version of the facts." (citations omitted));
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not
like pigs, hunting for truffles buried in briefs.").
Nevertheless, the vast

majority of the facts upon which this Court relies upon in the instant
opinion are undisputed; rather, the parties only dispute how the relevant law
should be applied to those facts.

^ (Compare with Def.'s Resp. to Pis. St. of Mat. Facts, Doc. 101-1; and Pis.
'
'
St. of Mat. Facts, Doc. 93-2.)

In 1980, DEA established the Dublin Eye Associates Pension Plan
(the ''Plan") /

for which Defendant served as a trustee.

(Id. SISI

5-6.)

On

April

lawsuit

in

District

13,

the

of

2011,

United

Defendant,

States

Kentucky

(the

inter

District

alia,

Court

"Underlying

initiated

for

the

Court")

for

a

Eastern

alleged

improprieties committed by the life insurance company and its
agents

(the

"Underlying

Defendants")

connected

with

the

maintenance of the Plan, namely Dublin Eye Assoc., P.C., et al.,
V.

Mass.

Mut.

Life

Ins.

Co.,

et

al..

Case

(E.D. Ky. 2013) (the "Underlying Lawsuit).
July

12,

against

motion

the

Defendant

Lawsuit.

On

2013,

Underlying

and

the

Court

other

No.

5:ll-CV-00128

(PRDRPSMF SI 33.)

granted

plaintiffs

summary

in

the

see

judgment

Underlying

(Id. SI 58; see also Doc. 101-11.)

August

12,

requesting

2013,

an

award

the

of

Underlying

their

Defendants

attorney's

fees

Underlying Lawsuit (the "Attorney's Fees Motion").
80;

On

also Doc.

26-2.)

On March

24,

2014,

the

filed

in

a

the

(PRDRPSMF SI
Underlying

Court granted the Attorney's Fees Motion, based - at least in

part - upon Defendant's conduct associated with the prosecution
of

the

actual

Underlying

amounts

Fees Order").

16,

2015,

Lawsuit,

owed

reserved

connection

determination

the

"Attorney's

(PRDRPSMF SI 81; see also Doc. 26-4.)

On January

Underlying

Court

therewith

of

(the

the

in

but

entered

judgment

against

Defendant, inter alia, in the Underlying Lawsuit, which included
a quantification of the attorney's fees award granted pursuant

to.

the

Attorney's

Fees

Order

(PRDRPSMF SI 82; Doc. 17-2.)

(the

"Underlying

Judgment").

On January 20, 2015, the Underlying

Court entered an amended judgment (together with the Underlying
Judgment, the "Underlying Amended Judgment").

Doc.

17-3.)

Lawsuit

In

August

resolved

the

2015,

the

Underlying

confidential settlement agreement.

From
policies

2005

through

issued

and

renewed

("MCC").

(PRDRPSMF

From 2013

through 2015,

issued
Company

and

SI

renewed

(together

by

with

MCC, the "Policies").^
8.)

Notably,

the

2013,

106;

parties

Amended

to

the

Underlying

Judgment

through

a

(PRDRPSMF SI 84.)

DBA
by

see

(PRDRPSMF SI 83;

held

liability

Maryland

also

Docs.

insurance

Casualty
17-4,

Company

17-5,

17-6.)

DBA held liability insurance policies
Plaintiff
the

Foremost

aforementioned

Signature
policies

Insurance
issued

by

(PRDRPSMF SI 107; s^ also Docs. 17-7, 17-

Policies

provide

coverage

for,

inter alia,

"personal and advertising injur[ies]", which the Policies define

to

include

"injury,

including

consequential

'bodily

arising out of . . . [m]alicious prosecution[.]"
110-11 (quoting Doc. 17-4, at 95, 104).)

injury',

(PRDRPSMF SI

Notably, DBA obtained

and maintained the Policies through DBA & Defendant's insurance
^ Notably, Plaintiffs assert - and Defendant does not deny - that the Policies
"contain substantially similar language" for all purposes material to the
instant dispute and thus all future citations to the Policies will be to the
initial policy issued by MCC.
(See PRDRPSMF SI 107 n.3; see also id. SISI 10816.)

broker,

Yates

Agency").

Insurance

&

Real

Estate,

Inc.

(the

''Insurance

(See id. S[ 87; Def.'s Dep., Doc. 95-15, at 162-66;

see also Docs. 17-4, 17-5, 17-6, 17-7, 17-8.)

On April 20, 2015, Defendant's counsel in the Underlying
Lawsuit sent a letter to the Insurance Agency seeking "to submit

a claim for coverage under one or more of the [P]olicies" in
relation- to the Underlying Amended Judgment.

(See PRDRPSMF SI

103; Doc. 93-53; see also Doc. 106-6 (memo of conversation dated

August 21, 2015 between DEA and Insurance Agency).)
received a copy of that letter on May 4, 2015.

Plaintiffs

(PRDRPSMF 31 105;

see also Doc. 93-54, SISI 8-9.)

On September 29, 2015, Plaintiffs filed the instant action,
seeking

a

declaratory

judgment

that

Plaintiffs

have

no

obligation to indemnify Defendant or the other plaintiffs to the
Underlying

Lawsuit

in

connection

therewith.

(Doc.

1.)

On

November 30, 2015, the defendants herein filed their answer and

Defendant filed a counterclaim seeking a declaration that he is
entitled to coverage under the Policies for the attorney's fees

award entered in connection with the Underlying Lawsuit.
8.)

On

complaint.
consent

February

10,

(Doc. 17.)

motion

to

2016,

Plaintiffs

filed

their

amended

On April 4, 2016, the parties filed a

dismiss

DEA

from

the

instant

prejudice, which the Court granted on April 5, 2016.
25.)

(Doc.

action

with

(Docs. 24,

On April 21, 2016, Plaintiffs and the remaining defendants
filed

cross-motions

for

partial

Court denied on March 23, 2017.^

summary

judgment,

{Docs. 27, 29, 50.)

which

the

On May 17,

2017, the remaining parties filed a consent motion to dismiss

Dr. Roger D. Smith from the instant action with prejudice, which
the Court granted on July 5, 2017; upon the dismissal of Dr.
Smith from this litigation, only Plaintiffs and Defendant remain
as parties hereto.

(Docs. 62, 67.)

On March 26, 2018, Plaintiffs filed their instant motion

for summary judgment.^

(Doc. 93.)

On July 20, 2018,

the

remaining parties filed a consent motion to substitute Plaintiff
Zurich

grounds

American

that

Insurance

"MCC

has

Company

undergone

C'ZAIC")

corporate

for

MCC

mergers

on

the

which

has

resulted in MCC no longer existing as an operating entity and

all of its interests being transferred to [ZAIC]," which this
Court granted on July 24, 2018.

(Docs. 107, 108.)

II. SUMMARY JUDGMENT STANDARD

Siammary
genuine

judgment

dispute

as

is

to

appropriate

any

material

only
fact

entitled to judgment as a matter of law."
The

Court

shall

grant

summary

judgment

if
and

"there
the

is

no

movant

is

Fed. R. Civ. P. 56(a).
"if

the

pleadings.

^ On April 20, 2017, Plaintiffs moved for reconsideration of the denial of
their motion for partial siimmary judgment, which the Court denied on June 30,
2017.

{Docs. 55, 66.)

^ On January 5, 2018, the Honorable Lisa Godbey Wood recused herself from the
instant action.

(See Doc. 87.)

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to summary judgment as a matter of law."

Hickson

Corp. V. N. Crossarm Co., 357 F.3d 1256, 1259, 1260 {11th Cir.
2004); Fed. R. Civ. P. 56(c).

The ''purpose of summary judgment is

to pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial."

Matsushita Elec.

Indus.

574,

Co.

V.

Zenith

Radio

Corp.,

475

U.S.

587

(1986)

(internal citation omitted).

"[The]

party

seeking

basis

for

[record

its

before

motion,
the

bears

the

informing the district court of

initial responsibility of

summary

the

and

court]

judgment

identifying
which

it

always

those

movant

477 U.S.

carries

317,

its

323

(1986).

If

initial

burden,

the

—

of

the

demonstrate

believes

absence of a genuine issue of material fact."
Catrett,

portions

the

Celotex Corp. v.

and

only if

non-movant

may

—

the

avoid

summary judgment by demonstrating that there is indeed a genuine
issue as

Clark,

to

Inc.,

the

929

material

F.2d

facts

604,

of

608

its

(11th

case.

Cir.

Clark

1991).

v.

Coats

Facts

&

are

"material" if they could affect the outcome of the suit under
the governing substantive law.
477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc.,

A dispute of those material facts "is

'genuine' . . . [only] if the evidence is such that a reasonable
jury could return a verdict for the non-moving party."
When

ruling

on

the" motion,

the

Court

must

Id.

view

all

the

evidence in the record in the light most favorable to the non-

moving party and resolve all factual disputes in the non-moving
party's favor.

Matsushita, 475 U.S. at 587.

also avoid weighing conflicting evidence.

The Court must

Anderson, 477 U.S. at

255; McKenzie v. Davenport-Harris Funeral Home, 834 F.2d
934

(11th

Cir.

1987).

Nevertheless,

the

non-moving

930,

party's

response to the motion for summary judgment must consist of more
than conclusory allegations, and a mere "scintilla" of evidence
will not suffice.

Walker v. Darby, 911 F.2d 1573, 1577 (11th

Cir. 1990); Pepper v. Coates,

1989).

887 F.2d 1493,

1498 (11th Cir.

"The non-moving party cannot create a genuine issue of

material fact through speculation, conjecture, or evidence that
is 'merely colorable' or 'not significantly probative.'"

Bryant

V. Dougherty Cty. Sch. Sys., 382 F. App'x 914, 917 (11th Cir.

2010) (citing Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.
2008); Anderson, 477 U.S. at 249-50).

III. DISCUSSION

"Insurance

in

Georgia

is

a

matter

of

contract

and

the

parties to the contract of insurance are bound by its plain and

unambiguous terms.

Silva v. Liberty Mut. Fire Ins. Co., 808

S.E.2d 886, 888 (Ga. Ct. App. 2017) (citations and alterations

omitted).

"To

that end,

a notice provision expressly made a

condition precedent to insurance coverage is valid and must be
complied

with,

absent

a

showing

of

justification.

Where

an

insured has not demonstrated justification for failure to give
notice according to the terms of the policy, then the insurer is
not obligated to provide either a defense or coverage.

Thus,

failure

in

to

forfeiture

provide
under

the

the

requisite
policy."

notice
Id.

could

(internal

result

a

cjuotations,

citations, and alterations omitted).
A. Notice is a Condition Precedent to Coverage

"The

insurance

general

policy is

rule

is

that

a

only considered

notice

a

provision

condition

in

an

precedent

to

coverage if it expressly states that a failure to provide such
notice will result in a forfeiture of the insured's rights or

uses language which otherwise clearly expresses the intention
that the notice provision be treated as a condition precedent."
Progressive Mountain Ins. Co. v. Bishop., 790 S.E.2d 91, 94 (Ga.

Ct.

App.

2016)

(internal

citations

and

alterations

omitted).

"Policy language that merely requires the insured to give notice
of

a

particular

event

does

not

by

itself

create

a

condition

® In prior briefing, both parties agreed that Georgia law applies in this
dispute.
(See Doc. 29-1, at 6-7; Doc. 33, at 1-2.)
Moreover, both parties
have assumed that Georgia law applies in their briefing.
(See Docs. 93-1,
101, 106.)

precedent[, but a] general provision that no action will lie
against the insurer unless the insured has fully complied with
the

terms

of

precedent."

the

policy

will

suffice

to

create

a

condition

Id.

Here, the Policies provide that ''[y]ou must see to it that
we are notified as soon as practicable of an occurrence or an

offense which may result in a claim. . . . If a claim is made or
suit brought against any insured, you must . . . [n]otify us as

soon as practicable.

You must see to it that we receive written

notice of the claim or 'suit' as soon as practicable. . . . You

and any other involved insured must: (1) [iImmediately send us
copies

of

any

demands,

notices,

summonses

or

legal

papers

received in connection with the claim or suit; (2) [a]uthorize
us

to

obtain

records

and

other

information;

[and]

(3)

[cjooperate with us in the investigation or settlement of the

claim or defense against the suit . . .

(PRDRPSMF SI 115

(internal quotations omitted) (quoting Doc. 17-4, at 100).)

The

Policies further provide that "[n]o person or organization has a
right

under

this

Coverage

Part

.

.

.

[t]o

sue

us

on

this

Coverage Part unless all of its terms have been fully complied

with."

(Id. SI 116 (quoting Doc. 17-4, at 100).)

The Policies define "you" and "your" as "the Named Insured shown in the
Declarations, and any other person or organization qualifying as a Named
Insured."
(PRDRPSMF SI 112 n.4 (quoting Doc. 17-4, at 90).)
The Policies
define "we", "us," and "our" as "the Company providing this insurance." (Id.
SI 115 n.5 (quoting Doc. 17-4, at 90).)
10

Based

upon

the

foregoing,

the

Court

concludes

that

compliance with the Policies' notice provisions is a condition
precedent to coverage.

See Bramley v. Nationwide Affinity Ins.

Co. of Am., 814 S.E.2d 770, 773 (Ga. Ct. App. 2018) (notice was
condition

precedent

where

policy

required

''the

insured

to

'submit written proof of the claim to [the insurer] immediately
after the loss'" and "contain[ed] language that 'no legal action

may

be

brought

against

the

company

concerning

any

of

the

coverages provided until the insured has fully complied with all
the

terms

of

the

policy'"

(citations

omitted));

Burkett

v.

Liberty Mut. Fire Ins. Co., 629 S.E.2d 558, 560 (Ga. Ct. App.
2006) ("[N]otice [was] a condition precedent to coverage" where

policy

provided

coverage

under

that

the

th[e]

insurer

policy

"ha[d]

unless

no

duty

there

has

to

provide

been

full

compliance with the following duties: . . . A person seeking any
coverage must promptly send us copies of any notices or legal
papers received in connection with the accident or loss. . . . A
person

seeking

Uninsured

Motorists

[p]romptly send us copies

of

Coverage

must

also

the legal papers if a suit is

brought.").

B. Notice was Untimely and Defendant's Delay was Unjustified
"The issue of whether notice is timely and meets the policy
provisions

is

usually

a

question

of

fact

for

the

jury.

Unexcused significant delay, however, may be unreasonable as a

11

matter of law."
citations,

and

Silva, 808 S.E.2d at 888 (internal quotations,
alterations

omitted).

''Whether

reasonableness

can be decided as a matter of law, or whether it should remain

in

the

province

of

the

jury,

depends

on

two

factors:

the

sufficiency of the excuse, and the insured's diligence after any

disability has been removed."®

Lathem v. Sentry Ins., 845 F.2d

914, 918 (11th Cir. 1988) (citing S. Tr. Ins. Co. v. Clark, 251

S.E.2d 82,3, 827 (Ga. Ct. App. 1978); and Norfolk & Dedham Mutual
Fire Ins. Co. v. Cumbaa, 128 196 S.E.2d 167, 170 (Ga. Ct. App.

1973)); see also Progressive Mountain Ins. Co. v. Cason, 626 F.

App'x 916,
under

919

Georgia

prejudiced

by

(11th
law
an

Cir.

that

an

insured's

2015)

("[T]here

insurer
failure

must
to

is no
show

give

requirement

that

timely

it

was

notices."

(citing Se. Exp. Sys., Inc. v. S. Guar. Ins. Co. of Georgia, 482
S.E.2d 433, 436 (Ga. Ct. App. 1997))).
delay . . .
it

is

Indeed, "[a] significant

becomes unreasonable as a matter of law only when

unexcused

or

unjustified."

OneBeacon

Am.

Ins.

Co.

v.

Catholic Diocese of Savannah, 477 F. App'x 665, 672 (11th Cir.
2012) (citing Smith v. Se. Fid. Ins. Co., 365 S.E.2d 105, 107
(Ga. 1988); Kay-Lex Co. v. Essex Ins. Co., 649 S.E.2d 602, 608
(Ga. Ct. App. 2007); and Gibson v. Dempsey, 306 S.E.2d 32, 33

(Ga. Ct. App. 1983)).

"The insured has the burden of showing

® Notably, Defendant does not assert that any disability prevented him from
complying with the Policies' notice provisions.
12

justification

for

a

delay in

providing

notice."

Id.

at 670

(citing Kay-Lex, 649 S.E.2d at 606).

Here,

the

Underlying

Lawsuit

was

initiated

on

April

13,

2011, the Attorney's Fees Motion was filed on August 12, 2013,
the Attorney's Fees Order was entered on March 24, 2014, and the
Underlying

Amended

Judgment

was

entered

on

January

20,

2015.

(PRDRPSMF SIS! 33, 80-83 (citing Docs. 8; 17; 17-2; 17-3; 26-2;
26-4).)

Defendant admits

Plaintiffs

or

any

regarding any of
assumed

other

that he ''did not personally contact

insurance

company

to

the aforementioned events;

that" the Insurance

make

a

rather,

claim"

he "just

Agency "would have" - or "should

have" - informed the Plaintiffs of a potential claim under the
Policies. (Id. SISI 97-98, 226, 230-33 (citations omitted); Def.'s

Dep. at 94-97, 160, 184-86.)

And while Defendant informed the

Insurance Agency in September 2013 "there was every possibility
that

[he]

would

be having

to

file

a

claim

if

there

was

any

coverage there" and in mid-2014 of his intention to file a claim
under the Policies, Defendant admits he never actually directed

the Insurance Agency to submit a claim under the Policies - or
provided
documents

the
from

Insurance
the

Agency

Underlying

with

any

Lawsuit

-

filings
until

or

other

April

2015.

(PRDRPSMF SlSl 94-95, 207-11, 217-221, 223-24 (citations omitted);

Def.'s Dep. at 87-88, 92-94,

123-25,

132-33, 136-41, 160; see

also PRDRPSMF sig[ 102-04; Doc. 93-51, at 64-66; Doc. 93-53; Doc.

13

93-57, at 34-36.)
not

receive

Defendant further admits that Plaintiffs did

notice

of

the

Underlying

Lawsuit,

the

Attorney's

Fees motion, the Attorney's Fees Order, the Underlying Judgment,
or the Underlying Amended Judgment until May 4, 2015.

giSI 104-05 (citing Doc. 93-54, SISI 8-9).)
that he had full access

to

(PRDRPSMF

Defendant also admits

the Policies,

but asserts

that he

''delayed in filing a claim on [the Policies] with Plaintiffs
because

he

understood

from

his

[counsel

in

the

Underlying

Lawsuit] that there was no coverage under [the Policies] for the

attorney's fees award" and that this "understanding regarding
there being no coverage 'kind of squelched' [his] filing of a
claim."

(Id. S[S[ 118, 212 (quoting Def.'s Dep. at 94).)

Defendant

asserts

that

his

communications

with

the

Insurance Agency prior to May 2015 demonstrate a genuine dispute
of material fact as to whether Plaintiffs received timely notice
of

the loss

Defendant's

for

which

admission

he

now seeks

that

he

coverage.

never

forwarded

Even ignoring
any

of

the

Underlying Lawsuit's filings or orders to the Insurance Agency,
however,

the

Court

disagrees.

In

Georgia,

"[i]ndependent

insurance agents or brokers are generally considered the agent
of the insured, not the insurer."

Kay-Lex, 649 S.E.2d at 607

(internal quotations omitted) (citing Se. Exp. Sys., 482 S.E.2d
at

435).

could

And

place

a

while "[i]t is

purported

true

agent

14

in

that

a

an

insurance

position

of

company

apparent

authority such that one might be justified in assuming that the
agent

had

authority

to

receive

notice

of

an

occurrence

or

claim," id. (citing Se. Exp. Sys., 482 S.E.2d at 436), Defendant

mistakenly relies almost entirely upon his own conduct - and the
conduct of the Insurance Agency - in support of his assertions

of the Insurance Agency's apparent authority.®
Nat'1 Indem.

("To

prove

Co.,

483

apparent

S.E.2d

or

664,

ostensible

show: (1)

the apparent

principal

apparent

agent;

(2)

representation

and

led

to

666-67

the

(Ga.

agency,

injury.

.

Ct.

the

represented

justifiable

See Kinard v.
App.

evidence

or

held

reliance

.

.

1997)

out

must
the

upon

the

the

only

[W]here

evidence that a person is an agent of another party is the mere
ass\jmption

that such an agency exists,

or an

inference drawn

from the actions of the apparent agent indicating that he was an
agent of another party, such evidence has no probative value and
is

insufficient

exists."

to

authorize

(internal

a

quotations,

finding

that

citations,

such

and

an

agency

alterations

omitted)), aff'd sub nom. Ross v. Stephens, 496 S.E.2d 705 (Ga.

1998).

Indeed, "neither the language of the policy nor anything

stamped upon the face of the policy gave apparent authority to

the

independent

[Insurance

Agency]

to

receive

the

required to be given to the insurer[s], [Plaintiffs]."

notice
See Se.

Exp. Sys., 482 S.E.2d at 435-36; cf. Intl. Indem. Co. v. Odom,
329 S.E.2d 307, 309 (Ga. Ct. App, 1985) (notice to independent
(See Doc. 101, at 9-13.)
15

agent sufficient where policy stated that notice could be given
to "your agent").

Further, it is undisputed that the Insurance

Agency had no actual authority to receive notice on behalf of
Plaintiffs.

(See PRDRPSMF SI 96 (citing Doc. 93-50, SI 2.9 ("If

policyholders or

claimants notify [the Insurance Agency] of a

claim, [the Insurance Agency] will direct the policyholder or
claimant to promptly contact the [Plaintiffs] by telephone or
Internet for filing claim notices and general handling of the
claim.")).)

And while Defendant asserts

previously

allowed

"submit[]"

claims

the
and

Insurance
premium

that Plaintiffs have

Agency

payments

to
on

"gather[]"
behalf

of

and
other

insureds in other cases (doc. 101, at 12-13), Defendant provides
no

evidence

relied

-

that

upon

he

those

in

fact

prior

relied

-

instances

let

in

alone

justifiably

assuming

that

his

communications with the Insurance Agency would constitute notice
to Plaintiffs.

See Kay-Lex, 649 S.E.2d at 607 ("[I]n order for

the doctrine of apparent agency to apply, the claimant must also
show justifiable reliance on
Kinard, 483 S.E.2d at 666.

agency

relationship

[Plaintiffs],

the representation of agency.");

Also, "without an actual or apparent

between

[Defendant]

was

[the
not

Insurance

authorized

to

Agency]

and

rely

any

on

statements" the Insurance Agency may have made to him regarding
its authority.

Kay-Lex, 649 S.E.2d at 608.

16

Accordingly, the

Insurance

Agency

had

no

authority - actual

or

apparent

-

to

receive notice on behalf of Plaintiffs.

Because the Insurance Agency was not Plaintiffs' agent for
the

purpose

of

notice/

any

notice

Defendant

provided

to

the

Insurance Agency cannot be imputed to Plaintiffs and therefore
May

4/

with:

2015
(i)

was

notice

the
of

first
the

time

loss

Defendant

or

claim

provided

for

which

Plaintiff

coverage

is

sought; and/or (ii) copies of the legal filings associated with
the Underlying Lawsuit.

(See PRDRPSMF S[gi 95, 104-05; see also

Doc.

S[S[

93-53;

which

Doc.

occurrence

countdown

to

untimely in

93-54,
the

Court

Defendant's
complying

delay

Accordingly,

considers

of

have

initiated

the

Defendant

was

as

a

to

regardless

obligations,^®

notice

therewith

adequate justification.
(thirteen-month

8-9.)

matter

of

law - absent

See, e.g., Cason, 626 F. App'x at 919
unreasonable

as

a

matter

of

law

under

Georgia law); Hathaway Dev. Co. v. Illinois Union Ins. Co., 274
F. App'x 787, 790-97 (11th Cir. 2008) (where policy required
notice ''as soon as practicable", four-, five-, and eight-month
delays

unreasonable

as

a

matter

of

law

under

Georgia

law);

Protective Ins. Co. v. Johnson, 352 S.E.2d 760, 761 (Ga. 1987)

("[U]nexcused

17-month

delay

is

unreasonable

as

a

matter

of

law."); Burkett, 629 S.E.2d at 560 (one-year delay from filing
i.e., the initiation and/or prosecution of the Underlying Lawsuit beginning
April 13, 2011, the filing of the Attorney's Fees Motion on August 12, 2013,
the entry of the Attorney's Fees Order on March 24, 2014, the entry of the
Underlying Judgment on January 16, 2015, or the entry of the Underlying
Amended Judgment on January 20, 2015.
17

of

complaint

seeking

declaratory

judgment

unreasonable

as

a

matter of law where there was ''no fraud, overreaching, or other
reason for [the insured's] delay"); Allstate Ins. Co. v. Walker,
562

S.E.2d

267,

unreasonable

insureds'

as

268
a

(Ga.

matter

Ct.

of

misunderstanding

App.

law

that

2002)

where

(one-year

excuse

"their

for

policy

delay

delay

might

was

afford

coverage" for loss); Caldwell v. State Farm Fire & Gas. Ins.
Co., 385 S.E.2d 97, 99 (Ga. Ct. App. 1989) (six-month delay from
service

of

summons

unreasonable

as

a

and

matter

nine-month

of

law);

delay

Snow

v.

from

incident

Atlanta

Int'l

Ins.

Co., 354 S.E.2d 644, 645 (Ga. Ct. App. 1987) (six-month delay
unreasonable as a matter of law where "insurance policy .

required notice to be given as soon as practicable"); Diggs v.
S. Ins. Co.,

month

delay

321 S.E.2d 792,

unreasonable

as

793 (Ga. Ct.

a

matter

of

App. 1984) (three-

law

where

insurance

"policy required immediate notice and forwarding of all process
if a claim or lawsuit was filed"); Bituminous Cas. Corp. v. J.B.

Forrest

&

(four-month

Sons,

Inc.,

delay

in

209

S.E.2d

6,

forwarding

10

court

(Ga.

Ct.

papers

App.

to

1974)

insurer

unreasonable); see also Munoz v. Pac. Ins. Co., 582 S.E.2d 207,

208

(Ga.

Ct.

appropriate
judgment

App.

where

against

2003)

notice

(summary

provided

insured);

judgment

after

Bramley,

814

entry
S.E.2d

for
of
at

insurer

default
773

or

("The

purpose of a notice provision in a policy of insurance is to

18

allow the insurer to investigate promptly the facts surrounding
the occurrence and to prepare a defense or determine whether a
settlement is feasible, while the facts are still fresh and the

witnesses

are

still

available."

(internal

quotations

and

citations omitted)).

As

justification

sending

documents

Plaintiffs,

for

his

related

Defendant

delays

to

asserts

in providing

the

that

Underlying

the

entry

of

notice

and

Lawsuit

to

an

award

of

attorney's fees against him was unexpected and that he did not
realize

the

Policies

would

provide

coverage

for

the

award

attorney's fees under the facts of the Underlying Lawsuit.
Doc. 101,

at 13-17.)

of

(See

Yet ''beliefs or misunderstandings about

coverage" are insufficient to relieve an insured of their duty
to provide prompt notice; "[t]o hold otherwise would be contrary
to the obvious intent of the [Policies], which was to require
notice promptly after the occurrence of a covered event."
Geico Indem.

2016)

Co.

v. Smith, 788

(internal

omitted)).

S.E.2d 150,

quotations,

citations,

151 (Ga. Ct.

and

[ijf such common misunderstandings — which are the
heart of every litigation dispute — or any other wrong
idea germinated in the head of one party could alter
such plain contract language as exists in this case,
law

would

be

turned

on

its

head.

Insured

persons under an insurance policy are presumed to know
its conditions if they intend to rely upon its
benefits, or else they must find out those conditions.
It is well settled that where no ambiguity in a policy
of

insurance

exists,

the

courts
19

must

adhere

App.

alterations

Indeed,

insurance

See

to

the

contract made by the parties even if it is beneficial
to the insurer and detrimental to the insured, for we
must

construe

authorized

to

the

make

contract

a

are

not

contract different from

new

as

written

and

the

contract written and intended by the parties.

Id. (quoting Cotton States Mut. Ins. Co. v. Hipps, 481 S.E.2d
876, 878 (Ga. Ct. App. 1997)) (delay not justified where insured

delayed in notifying the insurer ''because her attorney initially
'felt that [the insurer's] uninsured motorist policy's coverage
would not apply'"); see also Silva, 808 S.E.2d at 889-90 (delay

not excused where "excuse for [the insured's] delay in notifying
[the

insurer]

was

that

her

counsel

was

unaware

that

[the

insured] would need to utilize her" policy); Lankford v. State
Farm

Mut.

Auto.

Ins.

Co.,

703

S.E.2d

436,

440

(Ga.

Ct.

App.

2010) (ignorance of "right to submit a claim under the policy
did not provide an excuse for the delay"); Allstate Ins., 562
S.E.2d at 268 (ignorance that "policy might afford coverage" for
loss insufficient justification for delay in notifying insurer).
This is particularly true where, as in this case, "[t]here is no
evidence,

indeed,

not

even

an

assertion,

that

the

insured's

ignorance of the terms of the subject insurance policy was due

to any fraud or overreaching on the part of the insurer or its
agents."

Johnson, 352 S.E.2d at 761.

"The law requires more

than just ignorance, or even misplaced confidence, to avoid the
terms of a valid contract."

Id. (internal quotes,

and alterations omitted)).

20

citations,

Accordingly, the Court concludes that Defendant's proffered

justification
unreasonable

is

insufficient

delay

in:

(i)

to

overcome

notifying

his

otherwise

Plaintiffs

of

the

occurrence for which he now seeks coverage; or (ii) sending them

legal papers received in connection with the Underlying Lawsuit.
Therefore,

Defendant's

failure

to

satisfy

these

conditions

precedent to coverage forfeits his entitlement to coverage under
the

Policies

as

a

matter

of

law.

Therefore,

Plaintiffs

are

entitled to summary judgment.

IV. CONCLUSION

Based upon the foregoing and due consideration. Plaintiffs'
motion for summary judgment (doc. 93) is GRANTED.

The Clerk is

directed to enter JUDGMENT in favor of Plaintiffs, TERNIMATE all

other

pending

motions

and

deadlines,

if

any,

Georgia,

this

and

CLOSE

this

case.

ORDER

ENTERED

at

Augusta,

LJy

day

of

_, 2018.

J>^EAN0AL HALL, CHIEF JUDGE

UNITE^ STATES DISTRICT COURT
JGUTHERN DISTRICT OF GEORGIA

Because Plaintiffs are entitled to summary judgment
to satisfy conditions precedent to coverage, the
Plaintiffs' alternative arguments that: {i) Defendant
the Policies; or (ii) the Policies do not provide
claimed by Defendant.
21

for Defendant's failure
Court does not reach
is not an insured under
coverage for the loss