State Farm Mutual Automobile Insurance Company v. Moore Jr. et al

Filing 28

ORDER granting 26 Motion for Summary Judgment. Signed by Judge B. Avant Edenfield on 5/24/2011. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Petitioner,
v.

4: 10-cv-222

ROY EDWARD MOORE, JR., LOU
WARNOCK, MCCALL HEATING AND
AIR CORPORATION, JOHN F.
MCCALL and LIBERTY MUTUAL
INSURANCE COMPANY,
Respondents.
ORDER
I. INTRODUCTION
State Farm Mutual Insurance Company
(“State Farm”) filed a petition for
declaratory judgment against Roy Edward
Moore, Jr. (“Moore”), Lou Warnock
(“Warnock”), McCall Heating and Air
Corporation (“McCall Corp.”), John F.
McCall (“McCall”), and Liberty Mutual
Insurance Company (“Liberty Mutual”)
(collectively “Defendants”).
State Farm alleges that “[o]n January 14,
2008, Roy Edward Moore, Jr., was involved
in a motor vehicle collision with a vehicle
operated by Lou Warnock.” See Doc. 1 ¶ 9.
In their responses to the Petition, McCall,
McCall Corp., Warnock, Liberty Mutual,
and Moore each admit the allegations in this
paragraph. See Doc. 4 ¶ 9 (McCall’s and
McCall Corp.’s answer); Doc. 6 ¶ 9
(Warnock’s answer); Doc. 7 ¶ 9 (Liberty

Mutual’s answer); Doc. 22 ¶ 9 (Moore’s
answer).
At the time of the collision, Moore was
employed by McCall Corp., was driving a
truck owned by McCall Corp., and was
acting within the scope of his employment.
See Doc. 26-2 at 2 (State Farm’s unrebutted
statement of undisputed material facts). The
McCall Corp. truck was insured by Liberty
Mutual. See id.
In the Petition, State Farm seeks a
declaration that no coverage is available
under its policy number W402-222-1 1G (the
“Policy”) for damages arising out of the
collision. See Doc. 1. State Farm alleges
that the Policy covers a 1999 Chevrolet
Suburban individually owned by Moore,
which was not involved in the collision. See
Doc. 26-2 at 2.
On February 1, 2011, State Farm moved
for summary judgment. See Doc. 15. None
of the Defendants responded. Nonetheless,
the Court denied the motion, see Doc. 21,
because State Farm produced policy
documents covering only an irrelevant time
period before January 14, 2008—when all
parties agree the collision occurred. See
Docs. 1-2 at 1, 19; 15-4 at 2. Although
Defendants did not file a cross motion for
summary judgment, the Court ordered State
Farm to show cause why the case should not
be dismissed due to the insufficient record.
See Doc. 21 at 2.
State Farm responded by filing the
relevant policy declaration, explaining that
its certification included a typographical
error, and moving to amend its petition. See
Docs. 25, 25-1. State Farm then renewed its
motion for summary judgment. See Doc.

26. Defendants again failed to respond.
“Failure to respond within the applicable
time period shall indicate that there is no
opposition to a motion.” L.R. 7.5.

State Farm only has a right to amend the
complaint as to Moore, because his answer
was filed twenty-one (21) days prior to the
amendment. See Doc. 22 (Moore’s answer,
filed March 29, 2011); Doc. 25 (State
Farm’s amended complaint, filed April 19,
2011). See Anderson v. USAA Gas. Ins. Co.,
218 F.R.D. 307, 309-10 (D.D.C. 2003)
(allowing the plaintiff to file an amended
complaint as a matter of right only with
respect to the defendants that had not filed
answers, and requiring leave of court to
amend the complaint with respect to those
that had filed answers more than twenty-one
days before the amended filing).

II. ANALYSIS
A. Justiciability
As an initial matter, the Court notes that
this case is properly before it as a live case
or controversy. See Maryland Gas. Co. v.
Pac. Goal & Oil Co., 312 U.S. 270 (1941);
see also Paragon Mgmt., L.L. G v. Slaughter,
437 F. Supp. 2d 1267 (N.D. Ala. 2006) (“the
court has an ongoing obligation to, sua
sponte, analyze and determine whether it has
before it a justiciable case or controversy”).
In Maryland, the Court held that an insurer’s
suit to determine its potential liability in a
suit filed by an injured party against the
insured presented an actual controversy
between the insurer, insured, and injured
party. See 312 U.S. at 273-74. Here, a
demand has been made on State Farm for
coverage and Warnock has filed suit against
Moore and McCall Corp. in the State Court
of Chatham County. See Doc. 1 at 3-4.
This case presents a live controversy.

Rule 15 also provides, however, that a
party may later amend their pleading with
leave of Court—which “should freely give
leave when justice so requires.” See F ED. R.
C IV. P. 15(a)(2). Here, the need for
amendment stemmed from State Farm’s
typographical peccadillo of certifying its
policy was in effect January 10, 2011 rather
than January 14, 2011. Because the
correction was in response to a Court order,
and because none of the parties have
objected to State Farm’s filing, the Court
GRANTS leave for State Farm to amend its
petition. See Doc. 25.

B. Amended Petition
State Farm responded to the Court’s
Show Cause Order by filing the relevant
policy declaration and moving to amend its
petition on April 19, 2011. See Docs. 25,
25-1. “A party may amend its pleading once
as a matter of course within . . . if the
pleading is one to which a responsive
pleading is required, 21 days after service of
a responsive pleading . . .” F ED. R. C IV. P.
15(a)(1).

C. Summary Judgment
“The court shall grant summary
judgment if the movant shows that there is
no genuine dispute as to any material fact
and the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(a). In
ruling on summary judgment, the Court
views the facts and inferences from the
record in the light most favorable to the nonmoving party. See Matsushita Elec. Indus.
2

Non-Owned Car – means a car not
owned by, registered to or leased to:

Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); United States v. Four Parcels of
Real Prop. in Greene and Tuscaloosa
Counties, 941 F.2d 1428, 1437 (11th Cir.
1991).

1. you, your spouse;
2. any relative unless at the time of the
accident or loss:
a. the car currently is or has,
within the last 30 days been
insured for liability coverage;
and
the driver is an insured who
b.
does not own or lease the car;
3. any other person residing in the same
household as you, your spouse, or
any relative; or
4. an employer of you, your spouse, or
any relative.

“The moving party bears ‘the initial
responsibility of informing the . . . 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.’” Four
Parcels, 941 F.2d at 1437 (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“The construction of insurance contracts
is governed by substantive state law.”
Provau v. State Farm Mut. Auto. Ins. Co.,
772 F.2d 817, 819 (11th Cir. 1985). In
Georgia, “[t]he first rule that courts must
apply when construing contracts is to look to
the plain meaning of the words of the
contract.” Ga. Real Estate Props., Inc. v.
Lindwall, 303 Ga. App. 12, 14 (2010).

Doc. 26-5 at 5 (emphasis added).
The McCall Corp. truck is owned by
McCall Corp.—Moore’s employer—and is
not a Non-Owned Car See Doc. 26-2 at 2.
The Policy does not cover the truck.
A similar carve-out was approved as a
valid limit on an insurer’s liability in Mattox
v. Cotton States Mutual Insurance
Company, 156 Ga. App. 655, 657 (1980).
The court held that the insurer was justified
in refusing to insure other vehicles that the
insured habitually used, but did not include
on the policy. See id. State Farm’s
exclusion of Moore’s regularly driven
employer’s vehicle is allowable.

Aside from covering Moore’s 1999
Chevrolet Suburban, his State Farm Policy
covered the use, “by an insured, of a newly
acquired car, a temporary substitute car or a
non-owned car.” See Doc. 26-5 at 7.
The McCall Corp. truck involved in the
collision does not fit within any of these
categories. It was not newly acquired as
Moore never owned it. See Doc. 26-1 at 6.
It was not a temporary substitute car because
Moore’s Suburban was not disabled at the
time. See id.
The McCall Corp. truck also falls
outside the definition of a “Non-Owned
Car.”
3

III. CONCLUSION
The Court GRANTS State Farm’s
motion to amend its petition. See Doc. 25.
State Farm’s Policy does not cover the
collision at issue in this case. State Farm’s
motion for summary judgment, see Doc. 26,
is GRANTED. The clerk shall ENTER

JUDGMENT IN FAVOR OF STATE
FARM.
This 24th day of May 2011.

,g
B AVANT PDENFIELØ, JUDGE
UNFED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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