Linthicum et al v. Mendakota Insurance Company

Filing 73

ORDER granting 49 Motion for Summary Judgment; denying 51 Motion for Partial Summary Judgment. The Clerk of Court is DIRECTED to close this case. Signed by Judge William T. Moore, Jr on 9/22/16. (jlm)

•3.

IN THE UNITED STATES DISTRICT COJRTFOR LJI.
THE SOUTHERN DISTRICT OF GEORGIA,
P2: O
SAVANNAH DIVISION
)

CYNTHIA DYCHES LINTHICUM and)
CHRISTOPHER MARTIN LINTHICUM,)
as natural parents of T.L.,)
deceased, and assignees of)
Bobby James Hopkins, II,
Plaintiffs,
)

V.

CASE NO. CV415-023

MENDAKOTA INSURANCE COMPANY,
Defendant.
ORDER

Before the Court are Defendant Mendakota Insurance
Company's Motion for Summary Judgment (Doc. 49), and
Plaintiffs Cynthia and Christopher Linthicum's Motion for
Partial Summary Judgment (Doc. 51) . For the following
reasons, Defendant's motion is
motion is DENIED.

GRANTED

and Plaintiffs'

The Clerk of Court is DIRECTED to close

this case.
BACKGROUND

On June 3, 2008, Plaintiffs' son was tragically killed
after being struck by a vehicle driven by Bobby Hopkins.'

The material facts of this case are not in dispute. Where
they conflict, however, the Court has taken the facts in

(Doc. 51 at 2.) Plaintiffs' son survived for approximately
one hour following the collision. (Doc. 49, Attach. 1 at
3.) Mr. Hopkins fled from the scene of the accident and was
later charged with driving under the influence. (Id.) At
the time, Mr. Hopkins was covered under an automobile
liability policy issued by Defendant. (Doc. 51 at 2.) The
policy carried a limit of $25,000. (Id.)
On July 15, 2008, Defendant received notification that
Plaintiffs were represented by counsel. (Doc. 49, Attach. 1
at 3.) Ten days later, Defendant informed Plaintiffs'
counsel that it would most likely offer the policy limits
to settle any claims against Mr. Hopkins. (Id.) Plaintiffs'
counsel informed Defendant that he was still evaluating his
clients' options and was unprepared to accept the policy
limits at that time. (Id.) Plaintiffs' counsel did state
that he would eventually send a demand for the policy
limits, but wanted to wait until the resolution of Mr.
Hopkins's criminal charges. (Doc. 51 at 3.)
On October 9, 2008, Defendant sent Plaintiffs' counsel
a written settlement offer, which offered the policy limits
the light most favorable to Plaintiff. Cruz v. Publix Super
Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005).
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and required that the funds be paid to the estate of
Plaintiffs' son. (Id. at 4.) According to Plaintiffs,
Defendant mistakenly believed that Georgia law required
payment to the estate rather than directly to Plaintiffs.
(Id.) Plaintiffs did not expressly respond to that
settlement offer, electing to simply provide a copy of the
death certificate and express a general "hope to be able to
proceed with these files in the near future." (Doc. 45,
Attach. 9 at 1; accord Doc. 51 at 5.)
On May 12, 2010, approximately nineteen months after
Defendant offered the policy limits, Plaintiffs faxed
Defendant a demand letter for the policy limits in exchange
for a release "of all claims for the wrongful death of
[T.L.]." (Doc. 51, Ex. B-2 at 3 (emphasis added).) The
demand was time-limited and would be withdrawn if not
accepted in writing by 5:00 p.m. on May 24, 2010. (Id. at
5-6.) Plaintiffs did not contact Defendant to inquire as to
whether it received or intended to respond to the demand.
(Doc. 49, Attach. 1 at 6.) Defendant did not timely respond
to Plaintiffs' demand. On June 2, 2010, Plaintiffs filed a

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wrongful death suit against Mr. Hopkins and provided a copy
of their complaint to Defendant. (Doc. 51 at 7.)
On June 15, 2010, Defendant contacted Plaintiffs'
counsel and reminded him that Defendant had previously
tendered the policy limits to settle Plaintiffs' claims
against Mr. Hopkins. (Doc. 49, Attach. 1 at 6.) Defendant
once again extended the same offer to settle those claims,
including the requirements that Plaintiffs agree to release
all of the personal injury claims against Mr. Hopkins and
that payment be made to the victim's estate. (Doc. 51 at
7.) Rather than accept the policy limits under those
conditions, Plaintiffs proceeded with their suit. (Id.)
Ultimately, all interested parties agreed to resolve
the underlying suit. (Id.) As part of that agreement,
Defendant and Mr. Hopkins stipulated to an uncontested
judgment against Mr. Hopkins for the amount of $1.2
million. (Id.) To satisfy the judgment, Mr. Hopkins agreed
to assign any claim he might have against Defendant to
Plaintiffs. (Id.) Based on that assignment, Plaintiffs
filed suit against Defendant in the Superior Court of
Chatham County. (Doc. 1, Attach. 1.) Pursuant to 28 U.S.C.

§ 1332,

Defendant

invoked

this

Court's

diversity

jurisdiction and removed the case to this Court. (Id.) In
their complaint, Plaintiffs allege that Defendant is liable
for "negligently, carelessly, unreasonably, foolishly,
stubbornly litigiously, or in bad faith failing or refusing
to settle the Linthicums' claim for the wrongful death of
their child within the applicable limits of the Mendakota
policy." (Id. ¶ 80.)
In its Motion for Summary Judgment, Defendant argues
that, as a matter of law, its actions do not amount to a
bad faith refusal to settle because it tendered the policy
limits to settle Plaintiffs' claims against Mr. Hopkins.
(Doc 49, Attach. 1 at 8-13.) With respect to Plaintiffs'
May 2010 demand, Defendant contends that it was not
obligated to respond to that demand because it requested
the policy limits, but did not offer to settle all
potential claims against Mr. Hopkins. (Id. at 13-14.)
According to Defendant, the May 2010 demand left Mr.
Hopkins exposed to claims for pain and suffering brought on
behalf of the decedent's estate based on the one hour
Plaintiffs' son survived following the accident. (Id.)

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Plaintiffs generally maintain that Defendant's failure to
timely respond to their May 2010 demand is a bad-faith
refusal to settle, regardless of whether the settlement
terms resolved all potential claims against Mr. Hopkins.
(Doc. 51 at 13-24.)
ANALYSIS

Summary judgment shall be rendered "if the pleadings,
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 a judgment as a matter of law."
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. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)

(citing 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. DeLoncr Eauip. 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 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. 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

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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)
In Georgia, an insurance company that refuses to
settle a personal injury claim against its insured due to
bad-faith or negligence may be liable for the excess
judgment. Cotton States Nut. Ins. Co. v. Brightman, 276 Ga.
683, 684, 580 S.E.2d 519, 521 (2003) . This situation arises
when an insurer places its interest above the interests of
its insured. Thomas v. Atlanta Cas. Co., 253 Ga. App. 199,
204-05, 558 S.E.2d 432, 439 (2001). The insurer's actions
are

"[j]udged by the standard of the ordinarily prudent

insurer." Cotton States, 276 Ga. at 685, 580 S.E.2d at 521.
While "[a]n insurance company does not act in bad faith
solely because it fails to accept a settlement offer," S.
Gen Ins. Co. v. Holt, 262 Ga. 267, 269, 416 S.E.2d 274, 276
(1992), "the insurer 'must use such care as would have been
used by an ordinarily prudent insurer with no policy limit
applicable to the claim.' " Baker v. Huff, 323 Ga. App.
357, 363, 747 S.E.2d 1, 6 (2013) (quoting U.S. Fid. & Guar.
Co. v. Evans, 116 Ga. App. 93, 94-95, 156 S.E.2d 809, 811
(1967) )

Generally, an insurer owes a duty to its insured of
timely responding to a plaintiff's offer to settle a
personal injury claim within the policy limits if the
insurer knows the insured is clearly liable and special
damages will exceed the policy limits. Id. at 364, 747
S.E.2d at 7. (quoting Brightman, 276 Ga. at 685, 580 S.E.2d
at 521) . However, an insurer has no duty to respond to an
offer that fails to fully settle the claims against its
insured within the policy limits. Id. at 365, 747 S.E.2d at
7 (citing Holt, 262 Ga. 267, 416 S.E.2d 274) . In this
respect, an offer to settle a claim for pain and suffering,
but not wrongful death, is "not an offer to fully settle a
claim within the policy limits to which [the insurer has] a
duty to respond." Id.
In this case, Defendant quickly offered to tender the
policy limits to settle Plaintiffs' claims against Mr.
Hopkins. In response, Plaintiffs elected to wait
approximately nineteen months to respond to that offer by
sending a demand for the policy limits. Plaintiffs'
response was effectively a counter-offer to accept the
policy limits in exchange for settling only Plaintiffs'
claim for wrongful death. Under Baker, Plaintiffs' demand
was not one that would fully settle Plaintiffs' claims
against Mr. Hopkins. Therefore, Defendant was under no

obligation to either accept or respond to Plaintiffs'
demand. In short, there are insufficient facts "to permit a
jury to find that no ordinarily prudent insurer would have
declined to accept [Plaintiffs'] offer." Id. at 363; 747
S.E.2d at 6. Accordingly, Defendant is entitled to summary
judgment.
CONCLUSION

For the foregoing reasons, Defendant's Motion for
Summary Judgment (Doc. 49) is

GRANTED

and Plaintiffs'

Motion for Partial Summary Judgment (Doc. 51) is

DENIED.

The Clerk of Court is DIRECTED to close this case.
SO ORDERED this

day of September 2016.

WILLIAM T. MOORE, JR/
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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