Colony Insurance Company v. Baggett et al
Filing
37
ORDER granting 5 Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of Plaintiff and tax costs against Defendants. This case stands closed. Signed by Judge Dudley H. Bowen on 8/1/2022. (pts)
IN THE UNITED
STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA U.S. DLFl^-Tcf CGURl'
DUBLIN DIVISION
AUGUSTr-. GiV.
'Z022AUG-I P2^5S
COLONY INSURANCE COMPANY,
*
*
Plaintiff,
GLs;;,
*
SJ.
._V uA.
*
V.
*
CV 322-003
'k
ALAN BAGGETT and KIMBERLY
*
HOWELL,
*
if
Defendants.
*
ORDER
Plaintiff Colony Insurance Company brought this declaratory
judgment action to determine its rights and obligations under the
insurance policy it issued to Defendant Alan Raggett in a state
lawsuit
filed
against
him
by
Defendant
Kimberly
Howell.
At
present, Plaintiff has moved for summary judgment, contending that
the coverage issue may be determined as a matter of law.
reasons
that
follow,
the
Court
grants
summary
For the
judgment
to
Plaintiff.
I.
BACKGROUND
Neither Defendant disputes the following facts.
Plaintiff
issued a "Farm & Ranch" liability insurance policy, Policy No. 101
FO 0021946-03, to Defendant Raggett for the Policy Period of May
31, 2018 to May 31, 2019.
Doc. No. 5-1, SI 1.)
(Pl.'s St. of Undisputed Material Facts,
The Policy is attached to the motion for
summary judgment as Exhibit A.^
Coverage H of the Policy provides coverage to the insured.
Defendant Baggett, in the amount of $300,000 for each occurrence
and $600,000 aggregate for ''those sums that the 'insured' becomes
legally obligated to pay as damages because of 'bodily injury' or
'property damage'." (Id. SISI 2-3.)
Coverage H, however, is subject
to an endorsement titled "Limited Fire Damage, Heat, Smoke, Fumes,
or
Chemical
Drift
Coverage."
This
endorsement,
known
by
the
parties as the "Hostile Fire Sublimit," provides that coverage is
limited to $25,000 for each occurrence and in the aggregate.
SI 5.)
(Id.
That is, under the "Hostile Fire Sublimit," $25,000 is the
most Plaintiff is obligated to pay on behalf of the insured for
"bodily injury" . . . based upon, arising out of,
attributable to, directly or indirectly resulting from,
in consequence of, or in any way involving, in whole or
in part from a controlled fire set by or on behalf of an
"insured" that becomes a "hostile fire", and to which
this insurance applies.
Coverage includes but is not
limited to fire damage, heat, smoke or fumes from a fire.
1 In response to the motion for summary judgment. Defendant Baggett
complains that the policy is "an unauthenticated copy" and thus
does not provide an evidentiary basis for the Court to rule on the
coverage issue. {Def. Baggett's Br. in Opp'n, Doc. No. 32, at 12.)
Both Defendants, however, have admitted to the terms of the
Policy as outlined herein by not disputing the relevant portions
of Plaintiff's Statement of Undisputed Facts.
(Id.)
The $25,000 Hostile Fire Sublimit includes defense costs
and expenses.
(Id. SI 6.)
The term ''hostile fire'' is defined under
the Policy as a fire "which becomes uncontrollable or breaks out
from where it was intended to be."^
(Id. SI 7.)
Defendant Howell has filed a lawsuit in the Superior Court of
Laurens County, Georgia against Defendant Baggett ("the underlying
action"), alleging that she was on Defendant Raggett's property on
May 18, 2019, as a social guest and invitee.
(Id. SISI 10-11.)
The
complaint in the underlying action further alleges that Defendant
Baggett was burning material on his property while Defendant Howell
stood and observed the fire.^
(Id. SI 12.)
At some point. Defendant
Baggett threw an accelerant onto the fire, causing a flare up that
resulted
in
extensive
burns
to
Defendant
Howell.
(Id.
SI
13.)
Defendant Howell seeks damages from Defendant Baggett on state law
claims
of
negligence
and
premises
liability
in
the
underlying
2 The Policy also contains an exclusion to coverage that the parties
refer to as the "Pollution Exclusion."
Because resolution of this
case rests in the application of the Hostile Fire Sublimit, the
Court need not discuss the Pollution Exclusion.
2 Defendants dispute that the fire occurred as alleged in the
Defendant Howell's complaint and therefore "dispute" the Statement
of Undisputed Facts, specifically Paragraphs 12 and 13, that relate
to the allegations of the complaint.
Relevant to this case,
however, is only what Defendant Howell's state court complaint
alleges because the Court has been called upon to determine if the
Policy limits Plaintiff's liability to $25,000 in the underlying
action based upon the allegations of the state court complaint.
Because Paragraphs 12 and 13 of Plaintiff's Statement of Undisputed
Facts accurately reflect the allegations of the state court
complaint. Defendants' objections to the paragraphs are unfounded.
action.
(Id. ^ 14.)
Defendant Baggett tendered the underlying
action to Plaintiff for coverage under the subject Policy.
Attaching the complaint in the underlying action. Plaintiff
filed the instant case on January 13, 2022, asking the Court to
declare that the ''Hostile Fire Sublimit" to Coverage H under the
Policy limits its duties and obligations to its insured. Defendant
Baggett, in the underlying action to just $25,000.
seeks judgment as a matter of law on this issue.
the
nonmoving
parties.
Defendants
Kimberly
Plaintiff now
The Clerk gave
Howell
and
Alan
Baggett, notice of the summary judgment motion and the summary
judgment rules, of the right to file affidavits or other materials
in opposition, and of the consequences of default.
(Doc. No. 6.)
Therefore, the notice requirements of Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied.
The
time for filing materials in opposition has expired, and the motion
is ripe for consideration.
II.
SUMMARY JUDGMENT STANDARD
The Court should grant summary judgment only 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
purpose of the summary judgment rule is to dispose of unsupported
claims or defenses which, as a matter of law, raise no genuine
issues
of material fact
suitable
for
trial.
Celotex
Corp.
v.
Catrett, 477 U.S. 317, 322-23 (1986).
In considering a motion for summary judgment, all facts and
reasonable inferences are to be construed in favor of the nonmoving
party.
Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir.
2004).
Moreover,
[t]he mere existence of some factual dispute will not
defeat summary judgment unless the factual dispute is
material to an issue affecting the outcome of the case.
The
relevant
rules
materiality of a
of
substantive
disputed
fact.
A
law
dictate
genuine
the
issue
of
material fact does not exist unless there is sufficient
evidence favoring the nonmoving party for a reasonable
jury to return a verdict in its favor.
Chapman v. AI Transp., 229 F.3d 1012, 1023 (ll^^^ Cir. 2000) {en
banc) (quoted
source
omitted)
(emphasis supplied).
The
party
opposing the summary judgment motion, however, "'may not rest upon
the mere allegations or denials in its pleadings.
Rather, its
responses . . . must set forth specific facts showing that there
is a genuine issue to be tried."
Walker v. Darby, 911 F.2d 1573,
1576-77 (11th Cir. 1990).
III.
LEGAL ANALYSIS
The Court views the Hostile Fire Sublimit as an exclusion of
coverage; that is, if the provision applies, the Policy excludes
coverage except up to $25,000.
"Under Georgia law, an insurer
seeking to invoke a policy exclusion carries the burden of proving
its applicability in a given case.
An insurer can carry its burden
of showing that a policy exclusion applies by relying exclusively
upon
the
allegations
complaint."
against
the
insured
in
the
underlying
First Specialty Ins. Corp. v. Flowers^
644 S.E.2d
453, 455 (Ga. Ct. App. 2007); see also Travelers Prop. Cas. Co. of
Am. V. Kansas City Landsmen, LLC, 592 F. App'x 876, 882 (11^^ Cir.
2015) (''An insurer has no duty to defend when the allegations in
an
underlying
complaint
provision." (cited
are
sources
excluded
omitted));
by
a
specific
Auto-Owners
Ins.
policy
Co.
v.
State Farm Fire & Cas. Co., 678 S.E.2d 196, 199 (Ga. Ct. App. 2009)
("[A]n insurer's duty to defend is determined by comparing the
allegations of the complaint with the provisions of the policy.").
In this case. Plaintiff aslcs the Court to determine whether
the allegations against Defendant Raggett in the underlying action
fall within the Hostile Fire Sublimit.'^
The Hostile Fire Sublimit
unambiguously limits Plaintiff's obligation to pay the insured for
bodily injury arising out of, attributable to, resulting from, in
consequence of, or in any way involving a controlled fire set by
its insured that becomes a "hostile fire" as that term is defined
in the Policy.
The inclusive and broad prefatory language of the
^ Thus, Defendant Raggett's stated concern that the allegations of
the complaint in the underlying action are not "evidence" is beside
the point.
(See Def. Raggett's Rr. in Opp'n at 1 (stating that
the allegations of the complaint "are not evidence and without any
probative value whatsoever with regard to the issues which must be
decided by this court in this declaratory judgment action").
Hostile Fire Sublimit clearly covers any claim of bodily injury
that was caused in any way, directly or indirectly, by a controlled
fire that became a ''hostile fire."
A "hostile fire," in turn, is
one that becomes
breaks out from
intended to be.
uncontrollable
or
where it
was
Defendant Howell's complaint alleges that she was
injured when the controlled fire set by Defendant Baggett "flare[d]
up" with the accelerant.
A "flare up" of fire, by its very nature,
is one that breaks out of where it is intended to be or one that
has
become
uncontrollable, even
if for
an
instant.
Here, the
allegations about the "flare up" of fire in the underlying action
fall squarely within the definition of "hostile fire."
In response. Defendant Howell attempts to create an ambiguity
in the definition of "hostile fire" by submitting the affidavit of
Defendant Baggett in the underlying action.
Baggett, Doc. No. 18, Ex. A.)
(See Aff. of Alan
First, as stated, the coverage issue
before the Court is a question of law to be determined based on
the language of the policy and the allegations of the complaint in
the underlying action.
Second, the affidavit is not contrary to
the complaint allegations. In the affidavit.
Defendant Baggett
states that he was performing controlled burns of various piles of
debris on his property.
(Baggett Aff. SI 12.)
When he reached the
third pile of debris, he ignited it the same as prior piles by
evenly pouring an accelerant onto the pile, allowing it to settle
over the debris, and then igniting the pile.
(Id.)
He avers that
the pile was "'burning slowly and had very little open flames."
(Id.)
He then added accelerant to the outer edges of the pile
which caused a "flash ignition that created a large flame."
(Id.)
Defendant Howell was seated 12 to 15 feet away from the pile when
she was injured.^ (id.)
In his affidavit, Defendant Baggett claims
he did not "reasonably expect[] to cause a sudden, uncontrollable
combustion" and that Defendant Howell was "at a reasonably safe
distance" away from the burn area.
(Id.)
In the Court's view, there is no material difference between
the allegations of the complaint and the affidavit.
Both relate
that Defendant Baggett put accelerant on the debris pile (even if
just the outer edges) that caused a "flash ignition" or "flare up"
sufficient
to
injure
Defendant
Howell
from
12-15
feet
away.
Whether Defendant Baggett intended the fire to "flare up" as it
did is immaterial.
the
definition
affidavit
It certainly does not create an ambiguity in
of hostile fire.
solidifies
that
the
In
incident
fact.
falls
Defendant Baggett's
within
the
Hostile
Fire Sublimit because the only reasonable conclusion is that the
fire was a sudden, uncontrollable combustion or was not where it
was intended to be
when it caused Defendant Howell's injuries,
whether intentionally so or not.
5 Defendant Baggett was closer to the pile and was also injured.
(Id.)
Having failed to identify an ambiguity in the contract, the
interpretation of the Policy is a question of law and may be
resolved on summary judgment.
See, e.g., J&D Int^l Trading Co.
(Hong Kong) Ltd. v. Plasmet, LLP, 2015 WL 12602442, at *6 (N.D.
Ga. Jun. 16, 2015) (cited sources omitted).
in
Defendant Howell's complaint in the
Here, the allegations
underlying action fall
within the unambiguous terms of the Hostile Fire Sublimit; thus,
the Hostile Fire Sublimit applies to limit any coverage under the
subject Policy for the underlying action to $25,000.
IV.
Upon
the
foregoing.
CONCLUSION
Plaintiff
Colony
Insurance
motion for summary judgment (doc. no. 5) is GRANTED.
Company's
The Clerk is
directed to ENTER JUDGMENT in favor of Plaintiff, tax costs against
Defendants, and CLOSE the case.
ORDER ENTERED at Augusta, Georgia, this
day of August,
2022.
UNITED STATES
DISTRICT
JUDGE
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