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)

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