Creech v. Onebeacon America Insurance Company

Filing 54

ORDER granting 34 Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of Defendant and terminate all other pending motions. This case stands CLOSED. Signed by Chief Judge J. Randal Hall on 06/28/2017. (pts)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION DEBORAH CREECH, as surviving spouse of Guy Doyle Creech, * * • Plaintiff, * v. * CV 416-011 * ONEBEACON AMERICA INSURANCE * COMPANY, * * Defendant. * ORDER Presently before summary judgment. timely notice judgment the of the Therefore, Wainwright, 772 the F.2d have been satisfied. brief, Defendant's judgment right to motion file filing motion is ripe notice 822, 825 requirements (11th Plaintiff record evidence, materials for and the affidavits Cir. filed a in for summary or response (per law, and briefs, Defendant's motion is GRANTED. the (Doc. v. curiam), and sur-reply well as a response 51.) The and the consideration of the opposition has Upon other Griffith (Docs. 43, 48, 50-1, consideration. relevant of 1985) and Defendant filed a reply brief as for motion and the consequences of default. to Plaintiff's sur-reply brief. time is The Clerk of Court gave Plaintiff summary materials in opposition, 38.) Court (Doc. 34.) of rules, the expired, parties' respective I. On September 17, 2012, BACKGROUND Mr. Guy Doyle Creech approached Gate Four of the Georgia Ports Authority Garden City, Georgia, After having his ("GPA") terminal located in in a tractor-trailer. tractor-trailer (Doc. 43-1, at 3.)1 weighed, Mr. Creech attempted to queue for the interchange where vehicles are inspected prior to being allowed to enter the port. the interchange, however, being operated by Mr. 67-68.) Mr. he came (Id.) alongside Craig Watson. Watson - (Id.; believing that Mr. to cut him off and skip ahead in line vehicle. Mr. (Doc. 43-3, Creech's instructed Mr. 43-3, at at 20-21, vehicle, Creech to wait his 20-21, 67-68.) running board beside Mr. face the through his Mr. Doc. tractor-trailer 43-3, at 20-21, Creech was attempting Mr. Watson approached driver-side turn. (Doc. Watson Creech's a reaching stopped and exited his 67-68.) slapped Prior to then door, 43-1, stepped at 3; times before Doc. onto door and punched him open window several and in the the jumping back 1 In its filings, Defendant argues that Mr. Creech's unsworn statements to law enforcement officials contained in various police reports constitute hearsay, are otherwise inadmissible, and therefore cannot be considered on a motion for summary judgment. See Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999) ("The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment." (internal quotations citations omitted)). In response, Plaintiff argues that these statements are admissible pursuant to the "excited utterance," "records of a regularly conducted activity," "public records," and/or "residual" exceptions to the rule against hearsay. See Fed. R. Evid. 803, 807. Defendant has also filed two motions to exclude the testimony of two proposed expert witnesses, namely Dr. Edmund Donoghue and Mr. Michael Schiavone, Esq. (See docs. 28, 37.) Because Plaintiff's claims fail on their merits regardless of the admissibility of the aforementioned statements/testimony, the Court has considered the statements/testimony for the purpose of providing the factual background. down to the pavement.2 Creech then grabbed (colloquially known (Doc. 43-1, at 3; Doc. 43-11, at 1.) a as wooden a and exited his vehicle. vehicle, Mr. knocker. 43-1, (Doc. 43-1, at with "tire-knocker") Creech struck Mr. (Doc. stick 3; a from at 3.) Doc. 43-3, at several times before to his vehicle Doc. 43-3, at returned to it was 3; his vehicle, being cabin Upon exiting his and entering 43-1, truck 20-21.) Creech (Doc. his end-cap Watson in the head with the tire- then punched Mr. returning metal Mr. at in the "interchanged," and yelled Watson head and/or face the interchange. Mr. 26-27.) pulled behind Mr. Mr. Creech then Watson's vehicle as for the interchange clerk to detain Mr. Watson until law enforcement personnel could be summoned; despite this request, however, interchanged and allowed into the port.3 Mr. Creech subsequently returned home. however, Mr. transported Creech's and admitted Center in Savannah, 18, 2012. condition to Georgia, (Doc. Memorial Watson 43-1, Later that deteriorated, was at 3-4.) same night, and he was Health University Medical early on the morning of (See Docs. 43-13, 43-14.) Creech suffered a Mr. September On September 20, 2012, Mr. stroke which eventually led to his death on 2 Mr. Watson denies stepping onto the running board of Mr. Creech's vehicle or punching him in the face at that time. 3 After officials; attention their altercation, Mr. (Doc. 43-3, at 24-25.) Creech spoke with GPA while he gave statements to several officers, and stated that he did not wish to press law enforcement he declined medical charges or secure a warrant against Mr. Watson. (Doc. 43-1, at 3-4; Doc. 43-11, at 1.) Mr. Watson was also interviewed by GPA law enforcement officials and similarly declined to press charges against Mr. Creech. (Doc. 43-5, at 1; Doc. 43-11; see also Doc. 43-10.) September 27, 2012. (See Doc. 43-14; Plaintiff's Statement of Material Facts Doc. ("PSMF"), 43-15, Doc. at 44, 25; H1f 3- 4.) On the operated date by Mr. leased by Mr. 17, % 2.) Evans Mr. of the altercation, the was owned Gary Creech by Mr. Parker to Evans Delivery Company, tractor-trailer T. Inc. Parker and (Doc. 43- Mr. Creech was not directly employed by Mr. Parker or Delivery Company, Parker that he but would rather had an oral operate the agreement tractor-trailer with as an independent contractor and would split the profits earned by Mr. Creech's operation of the vehicle with Mr. 4.) Prior to the altercation, Accident Policy [Insurance] No. "Policy").5 Policy's 4 Mr. Policy 216-001-164, conditions, (Id. ft 3- Defendant issued an Occupational to Evans effective Delivery February (PSMF f 15; see also Doc. terms, Parker.4 35-4.) and exclusions, it Company, 1, namely 2012 (the Subject to the provided, inter Parker attested that the financial arrangement between himself and Mr. Creech was as follows: "On a weekly basis [Mr. Parker] would receive a check from Evans Delivery Company, Inc. Evans would deduct from the check: (a) Fuel Costs; (b) Premiums for Mr. Creech's Occupational Accident Policy; and (c) Liability Insurance. After these deductions, [Mr. Parker] would give Mr. Creech 50% of the net proceeds and out of [Mr. Parker's] 50% [he] would pay for property insurance on the vehicle as well as any required maintenance." (Doc. 43-17, i] 4.) 5 More specifically, the Policy identifies the "Policyholder" as the "Transportation Industry Trust" and the "Participating Organization" as "E F Corporation [d/b/a] West Motor Freight of PA and Evans Delivery Company, Inc., as a participant in the Transportation Industry Trust." (Doc. 35-4, at 2, 27.) The Policy states that i t "is a legal contract between the Policyholder and the Insurer" whereby "[t]he Insurer agrees to insure Eligible Persons of the Policyholder, for whom premium is paid, against loss covered by this Policy, subject to its provisions, limitations and exclusions." (Id. at 2.) Section I of the Policy delineates two classes of persons who are "Eligible Persons," namely: "Owner-Operators" and "Contract Drivers." (Id. at 4-5.) alia, an benefit) accidental death benefit (including a survivor's as well as an accident medical expense benefit. (PSMF t 17; see also Doc. 35-4, at 10-17.) Shortly after the altercation, Plaintiff contacted Defendant seeking recovery under the Policy. On or about August 26, Brentwood Services 2014, a third-party claims administrator, Administrators, that no reserved (Doc. Inc., benefits sent Plaintiff a were Defendant's 43-16.) payable rights initiated the No. allegedly owed to contract) as well as penalties pursuant to O.C.G.A. to ST15CV203RT, Plaintiff alleged bad 1-2.) On this Court.6 Court seeking under faith January (See of the refusal 11, 2016, Doc. 1.) action on Effingham County, recover benefits to Policy to further thereunder. instant Case action State and defenses Georgia, Doc. the coverage Policy 9, (See in the December Defendant's 2 015 under and Plaintiff letter in which i t stated (i.e., pay breach of § 33-4-6 for such Defendant benefits. removed On October 3, this 2016, Defendant filed its present motion for summary judgment. 6 On January 13, 2016, Defendant moved to stay the instant proceedings and compel Plaintiff to engage in arbitration pursuant to the Policy's mandatory arbitration provision and 9 U.S.C § 3. (Doc. 5; see also Doc. 35-4, at 22.) On February 16, 2016, the Court denied Defendant's aforementioned motion, concluding that the Policy's arbitration provision was unenforceable under O.C.G.A. § 9-9-2(c)(3) and 15 U.S.C. § 1012(b). (See Doc. 11.) II, Summary genuine SUMMARY judgment dispute as is to JUDGMENT STANDARD appropriate any only material fact entitled to judgment as a matter of law." The Court shall depositions, together grant summary the affidavits, if uthere and no movant the is is Fed. R. Civ. P. 56(a). judgment answers to interrogatories, with if uif the pleadings, and admissions on file, any, show that there is no genuine issue as to any material fact and that the moving party is entitled to Corp. v. N. summary judgment as Crossarm Co., 357 2004); Fed. R. Civ. P. 56(c). a matter of F.3d 1256, law." 1259, 1260 Hickson (11th Cir. The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether Indus. there Co. is v. a genuine Zenith need for Radio trial." Corp., 475 Matsushita U.S. 574, 587 Elec. (1986) (internal citation omitted). xx [The] initial basis party seeking responsibility for [record its before motion, the of summary judgment informing and court] the identifying which it always district those Catrett, movant 477 U.S. carries its 317, 323 (1986). If initial burden, the - the court of the portions of the demonstrate the Celotex Corp. v. believes absence of a genuine issue of material fact." bears and only non-movant if - may the avoid summary judgment by demonstrating that there is indeed a genuine issue as to the material facts of its case. Clark v. Coats & Clark, Inc., "material" 929 if F.2d 604, 608 they could affect the governing substantive law. 477 U.S. 242, 'genuine' (11th 248 (1986). . . . [only] Cir. 1991). the outcome of Facts the suit under Anderson v. Liberty Lobby, ruling on Inc., A dispute of those material facts "is if the evidence is such that a reasonable jury could return a verdict for the non-moving party." When are 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 475 favor. Matsushita, U.S. at 587. also avoid weighing conflicting evidence. 255; 934 McKenzie (11th v. Cir. Davenport-Harris 1987). Court Anderson, Funeral Nevertheless, The Home, the must 477 U.S. 834 F.2d non-moving at 930, party's response to the motion for summary judgment must consist of more than conclusory allegations, will not Cir. 1990); 198 9). suffice. Pepper and a mere Walker v. v. Coates, Darby, 887 F.2d F.2d 1573, 1493, of 1498 is 'merely colorable' Dougherty Cty. Sch. Sys. , 382 (citing Shiver v. Chertoff, 2008; Anderson (1986))). Liberty Lobby, 549 F.3d 1342, 477 Cir. issue of or evidence that F. App'x 914, Inc., (11th (11th or 'not significantly probative."' 2010) v. conjecture, evidence 1577 "The non-moving party cannot create a genuine material fact through speculation, v. 911 "scintilla" Bryant 917 (11th Cir. 1343 (11th Cir. U.S. 242, 249-50 Ill, DISCUSSION7 Under Section I of the Policy ("Eligibility, Effective Date and Termination Date"), coverage (b) under the two classes of persons are eligible for Policy, "Contract Drivers." 18.) namely: (Doc. (a) 35-4, "Owner-Operators;" at To qualify as an Owner-Operator, 4-5; Inc.) and must, inter alia: current commercial driver's license; unit; and (iii) (iv) responsible for insurance on the power unit. qualify (i) as have a a Contract (i) (ii) valid and current have an H valid of and the power unit; physical damage at 4; PSMF f 19.) individual commercial a own or lease a power maintaining (Doc. 35-4, Driver, PSMF (here, Evans Delivery be responsible for maintenance be also an individual "must lease to or from the Participating Organization" Company, see and must, driver's To inter alia: license; (ii) "be authorized by an Owner-Operator or motor carrier to operate 7 The parties dispute which state's substantive law should apply to the resolution of this dispute; Plaintiff asserts that Georgia law applies, while Defendant argues that the law of the District of Columbia applies. In support of its conclusion, Defendant asserts that the Policy was "made and delivered in the District of Columbia" and notes the "Policyholder" is defined in the Policy as the "Transportation Industry Trust," the trustee of which is located in Washington, D.C (Doc. 35-4, at 2, 27; see also id. at at 2 ("This Policy is governed by the laws of the state in which it was delivered."); id. at 23 ("This Policy and the coverages thereunder are governed by the laws of the jurisdiction where the Policy is delivered.").) As noted by Plaintiff, however, the Policy does not actually state its place of delivery (see Doc. 35-4), and the parties have failed to provide any evidence resolving this factual issue. Plaintiff also argues that Defendant has waived any objection to the application of Georgia law to the present dispute by its failure to address the choice of law issue in relation to its motion to compel arbitration. (See Doc. 43, at 11-12; see also Docs. 5, 8.) Notably, while insisting that the law of the District of Columbia applies, Defendant has also supplied "relevant Georgia law in case this [C]ourt finds that the law of Georgia controls." (Doc. 48, at 2.) For the purposes of its present analysis, the Court has assumed - without deciding - that the substantive law of the State of Georgia controls. 8 a power unit owned or leased by an Owner-Operator (The Contract Driver must neither own nor lease the power unit)"; an employee of the Participating Organization; an employee of the Owner-Operator. Because Mr. Creech did not (iii) not be (iv) not be and (Id.) own or lease the tractor-trailer he was driving at the time of the incident, Mr. Owner-Operator as defined by the Policy.8 (See Doc. 43-17, ("In 2012 [Mr. Parker] owned a 1996 Freightliner, leased to Evans Delivery Company, Inc. truck.").) Mr. Similarly, because Creech is not an [Mr.] which f 2 [he] Creech drove this Parker did not have a commercial driver's license and therefore does not qualify as an Owner-Operator under the Policy, Mr. Creech does not fall within the Contract Driver class as defined by the requires that Operator or leased 8 Even by if considered motor an the a Contract Drivers carrier to be arrangement lease of the between "authorized operate Owner-Operator."3 (Doc. Mr. Policy; Creech tractor-trailer, Mr. a the Policy by an power-unit 35-4, and Creech at Mr. 4 owned or (emphasis Parker would Owner- could be fail to still qualify as an Owner-Operator because, inter alia, he was not responsible for the maintenance of or maintaining physical damage insurance on the vehicle; rather, Mr. Parker was responsible for these matters. (See Doc. 43-17, %4 (wOn a weekly basis [Mr. Parker] would receive a check from Evans Delivery Company, Inc. Evans would deduct from the check: (a) Fuel Costs; (b) Premiums for Mr. Creech's Occupational Accident Policy; and (c) Liability Insurance. After these deductions, [Mr. Parker] would give Mr. Creech 50% of the net proceeds and out of [Mr. Parker's] 50% [he] would pay for property insurance on the vehicle as well as any required maintenance." (emphasis added) .) 9 Plaintiff makes several unavailing arguments against this conclusion. First, Plaintiff argues that what the aforementioned Policy language "is intended to mean is clarified in a parenthetical sentence that follows: x(The Contract Driver must neither own nor lease the power unit.)'" Yet to reach the conclusion proffered by Plaintiff would require the Court to wholly ignore the first sentence in favor of the sentence following it, a result clearly not intended by the contracting parties given that they chose to leave the added); do [es] see not also Doc. have otherwise would a 35-5, % 11 commercial require the (xx[Mr. driver's Court to Parker] did not license.").) rewrite the To terms and find of the Policy and strip Defendant of its authority to bargain for the terms of its insurance coverage obligations - neither of which this Court is willing to do in the absence of evidence showing this result Plaintiff is has because Mr. contrary failed to to the make contracting such a parties' showing. intent. Accordingly, Creech did not satisfy the relevant criteria to be eligible for coverage under the unambiguous terms of the Policy, Plaintiff is afforded no coverage thereunder.10 Plaintiff, however, argues that is otherwise estopped from raising - Defendant has waived - any claim that Mr. was not eligible for coverage under the Policy. or Creech Specifically, first sentence in place. Next, Plaintiff argues that the term "OwnerOperator" is not defined in the Policy; this argument is directly contradicted by Section X of the Policy ("General Definitions"), which explicitly defines "Owner-Operator" as being "as described in SECTION I." (See Doc. 35-4, at 26.) Similarly, Plaintiff's argument that "[t]here is nothing in the requirements for a Class II 'Contract Driver' that the OwnerOperator possess a [commercial driver's license]" is unavailing given that the Policy's definition of "Contract Driver" utilizes the previously-defined term "Owner-Operator" and there is nothing in the Policy to indicate that the underlying criteria of that defined term were not intended to apply when used in the definition of "Contract Driver." (See id. ; see also id. at 25 ("Contract Driver is as described in SECTION I.") Finally, Plaintiff's argument that the Court's present conclusion "defies common sense" because "the Policy would only cover persons who drive for individuals who own or lease the truck and who disingenuous given that also have a [commercial driver's license]" is Plaintiff has provided no evidence to indicate that this result was contrary to the contracting parties' intent. 10 Because Mr. Creech - and by extension, Plaintiff - was not eligible for coverage under the Policy, Plaintiff is precluded from recovering bad faith penalties and attorney's fees under O.C.G.A. § 33-4-6. See Fed. Ins. Co. v. Nat'l Distrib. Co., 417 S.E.2d 671, 676 (Ga. Ct. App. 1992) ("Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and there is a disputed question of fact." (citations omitted)). 10 Plaintiff asserts asserted that that, Mr. because Creech was Defendant has eligible for not not previously insurance under the Policy and has failed to refund the Policy premiums paid on behalf of Mr. Policy as valid thereto. Creech, has enforceable and Defendant and (See Doc. 43, at 14-16.) implicitly has treated waived In support, any the defense Plaintiff cites a line of cases from Georgia for the proposition that, where an insurance company asserts that an insurance contract is void due to fraud in the inducement, the insurer can be estopped from rescinding the policy "if it did not act promptly, upon learning of the fraud, to rescind the contract but valid and enforceable." 568 S.E.2d 98, 100-01 Life Ins. Florida Intern. Lively v. Southern Heritage Ins. Co., (Ga. Ct. App. Co. v. Mulkey, Indem. 91 S.E. Co. v. announce he must, his purpose 2002) 106, (citing Columbian Nat. 108 Osgood, ("If a party to a contract seeks fraud or mistake, instead treated it as (Ga. 1916)); 503 S.E.2d 371, avoid or rescind such contract. 373-74 to avoid it on the ground of upon discovery of the facts, and adhere see also to it. Otherwise, he at once can not One significant reason for this rule in insurance cases is that leading the insured to believe the validity of into not insured's omitted)). the policy is purchasing property Notably, other to not questioned lulls insurance continuing and thus non-coverage." the insured subjects the (citations "the failure to return premiums is a factor 11 to be considered in determining whether an insurance company has waived the contract." defense Id. Here, the at by treating the policy as an enforceable while Defendant's 101. evidence of record shows that investigation of the incident began in September 2012, Defendant did not learn determination commercial of the issue facts (i.e., driver's that license until September 12, 2016.X1 forth no argument finding. relevant - let at to Mr. the the Parker time of (See Doc. 35-5.) alone evidence - instant coverage did not hold a the altercation) Plaintiff has put contradicting this It is also noteworthy that the letter dated August 26, 2014 sent from the third-party claims administrator to Plaintiff informing her of Defendant's intent to deny coverage under the Policy specifically notes that Defendant xxexpressly reserves all of its rights and defenses." is true behalf (Doc. 43-16, that Defendant has yet of Mr. Creech, to Defendant 11 On May 13, 2016, Defendant issued a records relevant to the instant dispute. at 4.) And while it refund the premiums paid on has offered to do so in subpoena to Mr. Parker requesting (See Doc. 25, t 1; see also Doc. 25-1.) Despite several follow-up letters sent by Defendant's counsel to Mr. Parker, Mr. Parker failed to timely respond to the aforementioned subpoena. Accordingly, on July 7, 2016, Defendant filed a motion to compel Mr. Parker to produce the relevant records. (Doc. 18.) For reasons not relevant to the instant discussion, the Court subsequently denied this motion to compel without prejudice on August 22, 2016. (See Doc. 24, at 1-2.) On August 24, 2016, Defendant filed a renewed motion to compel against Mr. Parker, which the Court subsequently granted. (See Docs. 25, 26.) On September 12, 2016, Defendant filed a "notice of resolution of discovery dispute," notifying the Court that its counsel had met with Mr. Parker that same day and that Mr. Parker had provided documentation and other information responsive to (Doc. 29; see also Docs. 29-1, 35-5.) Defendant's subpoena at said meeting. On October 3, 2016, Defendant filed its present motion for summary judgment (i.e., twenty-one days after learning that Mr. Parker does not hold a commercial driver's license). (Doc. 34.) 12 accordance with see also Doc. but is not the Policy's 35-4, at eligible 4 ("If for of law, Accordingly, the (See Doc. 35, at 10 n.2; Insured Person pays premium coverage benefits under this Policy, error.").) terms. or does not qualify for We will refund any premium paid in the Court concludes that, as Defendant has not waived i t s defense that Mr. a matter Creech was ineligible for coverage under the Policy.12 IV, Upon due judgment (doc. JUDGMENT in TERMINATE consideration, 34) favor all CONCLUSION Defendant's motion for summary is GRANTED. The Clerk is directed to enter of on other Defendant pending all motions, of if Plaintiff's any, and claims, CLOSE this case. ORDER ENTERED at Augusta, Georgia, this _^X^_^day of June, 2017. F UNITED STATES DISTRICT SOUTHE [ESN DISTRICT JUDGE COURT OF GEORGIA 12 Having concluded that Mr. Creech - and by extension, Plaintiff - was not an insured under the Policy, the Court need not reach Defendant's arguments that: (a) the altercation was not an "Accident" as defined under the Policy; (b) Mr. Creech's death was not a "Covered Injury" as defined under the Policy; (c) coverage is otherwise excluded by one or more Policy exclusions (i.e., the "stroke," "provoked attack," and/or "crime/assault" exclusions); or (d) Plaintiff is not entitled to avail herself of the remedies provided under O.C.G.A. § 33-4-6 because the Policy is allegedly governed by the substantive law of a jurisdiction other than the State of Georgia. 13

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