McKeel et al v. McKeel et al
Filing
34
ORDER granting 21 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 3/24/15. (bcw)
IN THE UNITED STATES DISTRICT COURT FOR
:
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ERICA N MCKEEL,
individually; ERICA N.
MCKEEL, as surviving parent
of Murphy Foster McKeel,
deceased; DANIEL CALEB
MCIKEEL, as surviving parent
of Murphy Foster McKeel,
deceased; ASSIGNEES OF CUONG
NGUYEN AND MINH NGUYEN,
individually doing business
as Limelight Bar & Grill,
LLC;
)
4
:
L u
Plaintiffs,
CASE NO. CV413-211
V
.
AUTO-OWNERS INSURANCE CO.,
Defendant.
ORDER
Before the Court is Defendant Auto-Owners Insurance
Company's ("Auto-Owners") Motion for Summary Judgment.
(Doc. 21.) For the following reasons, Defendant's motion is
GRANTED. The Clerk of Court is DIRECTED to close this case.
BACKGROUND
Plaintiffs originally filed this action in the
Superior Court of Bryan County, Georgia. (Doc. 1, Ex. A.)
According to Plaintiffs' complaint, Plaintiff Erica McKeel
was involved in a car accident on January 12, 2012 when
4E
Cuong Nguyen improperly turned into the path of her
vehicle. (Id., Compl.
¶11 7-8.) Plaintiff Erica McKeel, who
was seven months pregnant at the time of the incident,
suffered injuries and prematurely delivered her baby. (Id.
¶ 9.) Sadly, the newborn child subsequently died due to
injuries sustained as the result of the accident. (Id.)
According to the complaint, Cuong Nguyen was an
employee of Limelight Bar and Grill, LLC ("Limelight") at
the time of the accident. (Id. ¶ 12.) Limelight was owned
by Cuong Nguyen's brother, Minh Nguyen, and was covered
under a Commercial General Liability Policy providing for
personal injury liability coverage up to $1,000,000 per
occurrence.' (Id. ¶ 10-11.) Initially, Defendant determined
the policy did not provide coverage because Cuong Nguyen
was driving a personal vehicle and not working for the
business. (Id. ¶ 13.) Based on later statements by Cuong
Nguyen that he was conducting business on behalf of
Limelight at the time of the accident, Defendant denied a
demand by McKeel Plaintiff s 2 for the policy limits because
1
The insurance policy was in the name of Minh Nguyen, d/b/a
Limelight Bar and Grill. (Doc. 26, Attach. 1 at 2.)
2
The Court will refer to Plaintiffs Erica N. McKeel,
individually and as surviving parent of Murphy Foster
McKeel, and Daniel Caleb McKeel, as surviving parent of
Murphy Foster McKeel, collectively as McKeel Plaintiffs.
VJ
the policy excluded bodily injuries that arose out of the
use of an automobile. (Id. ¶J 15-16.)
Ultimately, McKeel Plaintiffs filed a personal injury
suit in the State Court of Bryan County, Georgia, obtaining
a jury verdict against Cuong Nguyen in excess of
$3,000,000. (Id. ¶ 18-20.) Following the entry of judgment
in that case, Cuong Nguyen and Minh Nguyen assigned their
interest in any claim they might have against Defendant to
McKeel Plaintiffs. (Id. ¶ 21.) Based on that assignment,
Plaintiffs filed the present suit in the Superior Court of
Bryan County, Georgia seeking a declaratory judgment that
"the insurance policy at issue covers the events giving
rise to the underlying lawsuits." (Id. ¶ 25.) Defendant
timely removed that complaint to this Court, pursuant to 28
U.S.C. § 1332, based on the diversity of the parties. (Doc.
1.) In its answer, Defendant brought a counterclaim for a
declaratory judgment that it has "no obligation to make
payment for any amount relating to the [Plaintiffs']
judgment for damages obtained by them in the Underlying
Liability Lawsuit." (Doc. 5 at 19.)
Following discovery, Defendant filed a Motion for
Summary Judgment. 3 In its motion, Defendant argues that
"Plaintiffs' claims, and the [State Court] Judgment upon
Plaintiffs did not seek summary judgment.
3
which they are based, are totally and unambiguously
excluded by the Policy's Automobile Exclusion.
" 4
(Doc. 21,
Attach. 1 at 19.) In response to this argument, Plaintiffs
state only that "a reasonable insured, Minh Nguyen, could
have believed that the acts of his 'volunteer worker' which
were done within the scope of their work for Limelight
might have been covered by the Policy." (Doc. 26, Attach. 1
at 8.)
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
According to Fed. R. Civ. P. 56(a), "[a] party may
move for summary judgment, identifying each claim or
defense—or the part of each claim of defense—on which
summary judgment is sought." Such a motion must be granted
"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." Id. 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.'
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
Defendant also argues that the policy does not provide
coverage because the underlying judgment was not against an
insured (Doc. 21, Attach. 1 at 7-17), and the assignment
from Minh and Cuong Nguyen to McKeel Plaintiffs was invalid
(Id. at 17-18). However, the Court will not address these
arguments because the automobile exclusion clearly applies
in this case.
4
574, 587 (1986) (quoting Fed. R. Civ. P. 56 advisory
committee notes)
Summary judgment is appropriate when the nonmovant
"fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and
on which that party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
The substantive law governing the action determines whether
an element is essential. DeLong Equip. Co. v. Wash. Mills
Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989)
As the Supreme Court explained:
[A] party seeking summary judgment always 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, 477 U.S. at 323. The burden then shifts to the
nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts that are material to
the nonmovant's case. Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991)
The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 587-88.
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However, the nonmoving party "must do more than simply show
that there is some metaphysical doubt as to the material
facts." Id. at 586. A mere "scintilla" of evidence, or
simply conclusory allegations, will not suffice. See, e.g.,
Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir.
1998). Nevertheless, where a reasonable fact finder may
"draw more than one inference from the facts, and that
inference creates a genuine issue of material fact, then
the Court should refuse to grant summary judgment."
Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir.
1989)
II. COVERAGE UNDER THE COMMERCIAL GENERAL LIABILITY POLICY
In Georgia, an insurance policy is a contract subject
to the typical rules of contract construction. Am.
Strategic Ins. Corp. v. Helm, 327 Ga. App. 482, 485, 759
S.E.2d 563, 565 (2014) (citing Hurst v. Grange Mut. Cas.
Co., 266 Ga. 712, 716, 470 S.E.2d 659 (1996)) . As a
contract, the parties to the policy are bound by its plain
and unambiguous terms. Id. "Unambiguous terms are taken in
their plain, ordinary and popular sense as supplied by
dictionaries." Michna v. Blue Cross & Blue Shield of Ga.
Inc., 288 Ga. App. 112, 114, 653 S.E.2d 377, 380 (2007)
(citing Henderson v. Henderson, 152 Ga. App. 846, 847, 264
S.E.2d 299 (1979)) . In addition, the words in the policy
'generally bear their usual and common signification; but
technical words, words of art, or words used in a
particular trade or business will be construed, generally,
to be used in reference to this peculiar meaning.' " Id. at
114, 653 S.E.2d at 379-80 (quoting O.C.G.A. § 13-2-2(2)).
Turning to the terms of the policy, the automobile
exclusion at issue in this case expressly excludes any
'[blodily injury' or 'property damage' arising out of the
ownership, maintenance, use or entrustment to others of any
aircraft, 'auto' or watercraft owned or operated by or
rented or loaned to any insured." (Doc. 1, Attach. 1 at
58.) Based on this clear and unambiguous language, the
policy does not provide coverage for any bodily injury that
is based on the use of a vehicle operated by an insured.
Therefore, the applicability of the exclusion in this case
turns on whether Cuong Nguyen qualifies as an insured under
the terms of the policy.
In this regard, the policy includes as insureds
[Y] our 'employees . . . , but only for acts within the
scope of their employment by you or while performing duties
related to the conduct of your business, or your 'volunteer
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workers' only while performing duties related to the
conduct of your business." (Id. at 66.) According to
Plaintiffs' own admissions, Cuong Nguyen was a volunteer
worker. (See Doc. Doc. 26, Attach. 1 at 8 ("Here, a
reasonable insured, Minh Nguyen, could have believed that
the acts of his 'volunteer workers' which were done within
the scope of their work for Limelight might have been
covered by the Policy." (emphasis added)); Doc. 26, Attach.
2 ¶ 21 ("Plaintiffs contend that Cuong Nguyen was a
'volunteer worker' at the time of the wreck." (emphasis
added)) .) Based on these admissions, the Court concludes
that Cuong Nguyen was an insured under the terms of the
policy, which expressly excludes coverage for bodily and
personal injury arising out of the use of any vehicle
operated by an insured. Based on its clear and unambiguous
terms, therefore, Defendant's policy does not provide
coverage for the injuries sustained by the McKeel
Plaintiffs in the underlying state court action.
Accordingly, Defendant's request for summary judgment must
be GRANTED.
As noted above, Plaintiffs' sole argument with respect
to the automobile exclusion is that "a reasonable insured,
Minh Nguyen, could have believed that the acts of his
'volunteer workers' which were done within the scope of
8
their work for Limelight might have been covered by the
policy." (Doc. 26, Attach. 1 at 8.) Minh Nguyen might very
well have believed that, but such a belief would be
unreasonable in light of the clear and unequivocal language
of the insurance policy. It is even more unreasonable when
viewed in light of the "common practice for a company to
have separate auto coverage in addition to commercial
general liability coverage 'to provide seamless coverage
for different risks.' " Am. Interstate Ins. Co. v. Smith,
537 F. Supp. 2d 1378, 1381 (S.D. Ga. 2008) (quoting
Strickland v. Auto-Owners Ins. Co., 273 Ga. App. 662, 663,
615 S.E.2d 808, 810 (2005)). The Court suspects this is
probably why Plaintiffs filed suit against the insurer of
the vehicle involved in this accident for a bad-faith
refusal to settle. See McKeel v. State Farm Mut. Auto. Ins.
Co., 4:13-cv-191, 2014 WL4829360 (S.D. Ga. Sept. 29, 2014).
In the prior McKeel case, Plaintiffs filed suit alleging
that State Farm acted in bad-faith by requiring Plaintiffs
to execute a limited release for Limelight as part of
accepting the policy limits. 2014 WL4829360, at *1. As part
of their argument, Plaintiffs maintained that the
requirement was in bad faith because Limelight was not an
insured under the terms of the auto policy. Id. at *3 In
that case, this Court similarly concluded that "the record
conclusively establishes that Limelight Bar & Grill
qualified as an insured under the policy" and granted State
Farm's request for summary judgment. Id.
CONCLUSION
For the foregoing reasons, Defendant's Motion for
Summary Judgment (Doc. 21) is GRANTED.
The Clerk of Court
is DIRECTED to close this case.
SO ORDERED this
2+eLy of March 2015.
WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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