Progressive Mountain Insurance v. Anderson
Progressive Mountain Insurance v. Anderson
Opinion of the Court
Progressive Mountain Insurance Company (“Progressive”) filed the instant lawsuit seeking a declaration from this Court regarding coverage owed to Defendant Corey Dru Anderson (“Anderson”). Now before the Court is Progressive’s Motion for Summary Judgment (doc. 31). For the reasons stated herein, Plaintiffs Motion for Summary Judgment is GRANTED.
I. BACKGROUND
A. The Underlying Accident and Relevant Insurance Policies
This declaratory judgment action arises from a dispute over insurance coverage following a motor vehicle accident, the facts of which are largely undisputed. On June 29, 2011, Anderson was driving a 1996 Dodge Ram truck owned by his future father-in-law, Paul Hunley (“Mr. Hun-ley”). (Compl. ¶ 10; Anderson Dep. Doe. 31, Ex. G at 17-19.) On the day of the accident, Anderson was driving Mr. Hun-ley’s wife — -at Mr. Hunle/s request — to a doctor’s appointment. (Anderson Dep. at 29.) Following the appointment, with Anderson’s fiancee and future mother-in-law in tow,. Anderson rear-ended Adam Duane Cason (“Cason”), who was driving a 2002 Freightliner on Georgia Highway 232. (Id. at 23-24; Compl. ¶¶ 11-12.) Ca-son alleges that he sustained a severe concussion and head injuries and was unable to return to work for several months. (Compl. ¶ 13.)
At all times relevant to the accident, Anderson did not own a vehicle. (Anderson Dep. at 18.) Mr. Hunley, however, owned four vehicles: two Dodge Ram trucks, one Chevrolet truck, and a motorcycle. (Id. at 15-18.) Mr. Hunley paid for the insurance covering the two Dodge trucks, including the 1996 Dodge Ram involved in the accident, under policies issued by Everest Security Insurance Company (“Everest”). (Id. at 30; Doe. 38 Ex. B.) A Progressive policy was issued for the Chevrolet truck. (Anderson Dep. at 30.) And although he was the named driver on the policy, Anderson would make his insurance payments to Mr. Hunley.
Because he did not own a car, when Anderson needed to use a vehicle either Mr. Hunley would drive him or Anderson would use one of Mr. Hunley’s vehicles.
B. Procedural Background
Cason filed suit against Anderson in the Superior Court of McDuffie County on April 12, 2012 but dismissed that action just days before trial and re-filed in this Court on September 26, 2014.
Southern Trust, Cason’s uninsured motorist carrier, hired attorney George R. Hall to represent Anderson in the McDuf-fie County case. (See Doc. 38, Ex. E; Doc. 38, Ex. F.) Throughout the underlying litigation, Mr. Hall engaged in discovery, obtained records, and represented Anderson in his deposition. (Doc. 38, Ex. E; Anderson Dep. at 2.) On July 20, 2012, Mr. Hall notified Nelson, the insurance agency, that Progressive might owe coverage for the accident, and Nelson forwarded this information to Progressive. (Doc. 38, Ex. F.) Following Mr. Hall’s message, Progressive attempted to notify Anderson that it would provide him a defense pursuant to a reservation of rights agreement, though the notices were sent to the wrong addresses.
Thereafter, Progressive hired Percy J. Blount, Esq., to represent Anderson. (Doc. 38, Ex. I (Mr. Blount’s entry of appearance).) Mr. Blount, along with Mr. Hall, continued to defend Anderson through discovery. (See Doc. 38, Exs. LM.) On December 4, 2013, Mr. Blount supplemented Anderson’s interrogatory responses in the McDuffie County case, adding that the case was being defended under a reservation of rights. (Doc. 38, Ex. N.) That response, however, did not include a copy of the reservation of rights letter, but rather stated that the letter would be produced at a later date. (Id.)
On November 26, 2013, Progressive filed a complaint in this Court seeking declaration that it was not obligated to provide
II. MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). Facts are “material” if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must draw “all justifiable inferences in [its] favor.” U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted).
The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
[F]or issues on which the movant would bear the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party. If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the non-moving party, in response, come[s] forward with significant, probative evidence demonstrating the existence of a triable issue of fact.
Id. (quoting Four Parcels, 941 F.2d at 1437-38). In response, the non-movant
must come forward with evidence sufficient to call into question the inference created by the movant’s evidence on the particular material fact. Only if after introduction of the non-movant’s evidence, the combined body of evidence presented by the two parties relevant to the material fact is still such that the movant would be entitled to a directed verdict at trial — that is, such that no reasonable jury could find for the non-movant — should the movant be permitted to prevail without a full trial on the issues.
Fitzpatrick, 2 F.3d at 1116.
When the non-movant has the burden of proof at trial, the movant may carry the
In this action, the Clerk of the Court gave Defendants notice of the motion for summary judgment and informed them of the summary judgment rules, the right to file affidavits or other materials in opposition, and the consequences of default. (Doc. 34.) Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied. ■ The time for filing materials in opposition has expired, and the motion is now ripe for consideration.
III. DISCUSSION
Progressive filed the instant declaratory judgment action pursuant to 28 U.S.C. § 2201, seeking a declaration of what, if any, coverage obligation it owes under the policy issued by it to Anderson. Progressive contends that it does not owe coverage because (1) the 1996 Dodge Ram did not qualify as an “insured auto” or “non-covered auto” and (2) Anderson failed to provide Progressive with timely notice of both the accident and subsequent lawsuit.
A. Reservation of Rights
Before addressing the merits of Progressive’s contentions, the Court must first determine if Progressive waived its coverage defenses by failing to notify Anderson of its reservation of rights. As detailed above, after the initial lawsuit was filed in McDuffie County, Southern Trust hired Mr. Hall to represent Anderson. In the summer of 2012, Mr. Hall notified Nelson that Progressive might owe coverage for the accident, and Nelson forwarded that message to Progressive. Progressive then sent a reservation of rights notice to two different addresses for Anderson, both of which were returned as undeliverable. Progressive then hired Mr. Blount to rep
Anderson — by nature of his default — has failed to raise any argument regarding the sufficiency of notice and the reservation of rights letter. Instead, Southern Trust and Cason, as the only responsive Defendants, raise this argument. These parties are admittedly not parties to the insurance contract at issue and are not in privity with Progressive. Thus, the Court addresses whether Southern Trust and Ca-son have standing to challenge the notice of the reservation of rights letter.
In a case cited favorably by the Eleventh Circuit Court of Appeals,
In addressing the injured party’s standing to challenge the reservation of rights, the court explained that “an injured party has no standing to file a direct suit against the insurer of the party alleged to have caused the injury absent an unsatisfied judgment against the insured.” Id. at 602-03. Based on that general rule, the court similarly found that the injured party would lack standing to assert waiver or estoppel based on a failure to provide notice of reservation of rights. Id. In so holding, the court analogized the facts to those of a 1998 Georgia Supreme Court decision. Id. at 603. In that case, Nat’l Union Fire Ins. Co. v. Am. Motorists Ins. Co:, 269 Ga. 768, 504 S.E.2d 673, 674 (1998), an excess insurance carrier'undertook the insured’s defense of two lawsuits after the primary insurer tendered the policy limits. Thereafter, the excess insurance carrier sued the primary, asserting that one of the primary carrier’s policies provided for additional coverage. Id. The primary insurer countered that National Union had failed to reserve its rights to deny coverage, and thus was estopped from raising those claims. Id. The Georgia Supreme Court disagreed, holding that
[a] “reservation of rights” typically refers to an insurer’s notice to its insured that it will provide a defense, but may litigate and ultimately deny coverage if the insured is found liable. In this case, [the excess carrier’s] contract was with [the insured]. Thus, [the excess carri*1297 er’s] “right to deny coverage” flows only to [the insured]. Any reservation of that right would have to be directed to [the insured] and [the primary insurer] may not complain about [the excess carrier’s] failure to provide such notice.
Id. at 674-75. Moreover, the Fraley court expressly held that its “conclusion is not altered, [as the injured party contended], by the fact that [the insurer] named him as a defendant in the declaratory judgment action.” Fraley, 597 S.E.2d at 603. Applying this logic to the case at bar, this Court does
not believe that “[Progressive] waived its right to the protection afforded it under Georgia case law and the policy by instituting a declaratory judgment action against both the insured and the injured third party. Had [Progressive] not joined [Cason and Southern Trust] as co-defendants in the instant action, any judgment obtained would not have been binding on them and would have subjected [Progressive] to the possibility of further litigation on the same issue.”
See id. (quoting Colonial Penn Ins. Co. v. Hart, 162 Ga.App. 333, 291 S.E.2d 410, 415 (1982)).
Based on the foregoing, the Court finds that neither Cason nor Southern Trust have the requisite standing to challenge the adequacy of Progressive’s notice’ to Anderson of its reservation of rights.
B. Anderson Failed to Provide Notice of the Accident to Progressive
Proceeding to the merits of Progressive’s claims, the Court first addresses whether Anderson complied with the poli-'ey’s requirement to provide notice of the accident. Under Georgia law,
[insurance is a matter of contract and the parties are bound by the terms of the policy. It is also the general rule that the insured is chargeable with knowledge of all the conditions imposed upon him by the terms of his policy. The purpose of the notice provision in an insurance policy is to enable an insurer to investigate promptly the facts surrounding the occurrence while they are still fresh and the witnesses are still available, to prepare for a defense of the action, and, in a proper case, to determine the feasibility of settlement of the claim.
Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga.App. 215, 231 S.E.2d 245, 249-50 (1976) (internal citations omitted). Moreover, an insurer need not show it was prejudiced by the failure to receive notice “as the notice requirement [is] a condition precedent under the policy.” Bates v. Holyoke Mut. Ins. Co. in Salem, 171 Ga.App. 164, 318 S.E.2d 777, 778 (1984).
Progressive claims that, contrary to the policy’s requirements, it did not receive notice of the accident until some thirteen months later, and for that reason it is not obligated to provide coverage or a
Ordinarily, “[i]ndependent insurance agents or brokers are [] considered the agent of the insured, not the insurer” such that notice to an independent agent will not constitute notice to the insurer. Se. Exp. Sys., Inc. v. S. Guar. Ins. Co. of Ga., 224 Ga.App. 697, 482 S.E.2d 433, 435 (1997). “it is true that an insurance company could place a purported agent in a position of apparent authority such that one might be justified in assuming that the agent had authority to receive notice of an occurrence or claim.”
Even assuming Nelson did more than merely procure the policies, the requirement of a claimant’s justifiable reliance proves fatal to Defendants’ argument. In Alea London, the court held the defendants failed to show that the insured justifiably relied on any representation of agency because there was no evidence that (1) the insured relied on the'policy to conclude the broker was an agent of the insurer or (2) the insured looked through the policy, saw the broker’s name, and determined that the broker was the proper contact. Alea London, 2007 WL 5376619, at *13. In fact, the insured in Alea London never even read the policy, but blindly assumed that the broker was his insurer. Id.
Here, the undisputed facts before the Court show that Anderson at no time made any attempt to notify either Progressive or Nelson about the accident. Instead, Anderson believed Mr. Hunley told Nelson of the accident, but even that he could not say with any degree of certainty. (Anderson Dep. at 32-33.) ' Moreover, Anderson did not know any details regarding his policy. (See id.) In fact, Anderson never made payments to either Nelson or Progressive, but would pay the insurance premiums to Mr. Hunley. (Id. at 31.)
Defendants’ only “evidence” of Anderson’s justifiable reliance is that Nelson “handled the insurance for Mr. Hun-
Because Anderson is not entitled to coverage or a defense under the contract for want of proper notice of the accident, the Court declines to address the remaining contentions raised in the briefs, particularly the status of the 1996 Dodge Ram as an insured auto and the notice of lawsuit.
IV. CONCLUSION
Based on the foregoing, Progressive’s Motion for Summary Judgment is hereby GRANTED (doe. 31). The Clerk is' DIRECTED to enter judgment in favor of Plaintiff and CLOSE this case.
ORDER ENTERED.
. The Progressive policy that covered Anderson as the driver provided coverage for any "insured auto.” (Compl., Ex. B.) An insured auto as defined by the policy refers to the automobile specifically listed in the declarations page, here, the 1986 Chevrolet CIO. (Id.) It is undisputed that the only vehicle covered on the Progressive policy was the Chevrolet, and Progressive did not specifically charge Anderson any premiums for a 1996 Dodge Ram. (See Doc. 41 ¶¶ 15, 18; Doc. 37 ¶ 15; Compl., Ex. B.) Even so, automobiles not owned by Anderson are covered under the policy when used by him, except for those vehicles “furnished or available for [the insured's] regular use.” (Compl., Ex. B.)
The Progressive policy also required the insured to report any accident “as soon as practicable[.]” (Compl., Ex. B.) This provision applied regardless of'fault in the accident and additionally required the insured to "promptly send [Progressive] any and all legal papers relating to any claim or lawsuit.” (Id.)
. Anderson is currently in default, and it appears that Mr. Hunley has not been deposed in this matter. Thus, there is limited evidence regarding Anderson’s use of Mr. Hunley's vehicles.
. Mr. Hunley and Anderson started a business together known as P & C Enterprises, which provided contracting services to The Home Depot, among others. (Anderson Dep. at 11-13.)
. Following the accident, Cason made claims against Everest, which insured the 1996 Dodge Ram, and Southern Trust Insurance Company ("Southern Trust”), Cason’s uninsured motorist carrier. (Doc. 36 at 4.) Everest tendered the policy limits prior to suit being filed in exchange for a limited liability release. (Doc. 38, Ex. D.) ■
.The address listed for Anderson on his declarations page and the accident report was 1348C White Oak Road, Thomson, Georgia 30824. (Compl., Ex. B; Doc. 38, Ex. H.) According to Anderson’s deposition, in 2014 he moved to 195 Whism Road, Apt. 6, also in Thomson, Georgia. (Anderson Dep. at 19-21.) The reservation of rights notices, however, were sent to 1348 C Whittle Oak Road, Thomson, Georgia 30824 and 195 Wishan Road, Apt. 6, Thomson, Georgia. (Doc. 38, Ex. G.) Both notices were returned as undeliverable. (Id.)
. Mr. Blount’s entry of appearance in the McDuffie County case was on August 22, 2012. (Doc. 38, Ex. I.)
. Specifically, Mr. Blount participated in at least two depositions. (Doc. 38, Exs. L, M.)
. Tiller v. State Farm Mut. Auto. Ins. Co., 549 Fed.Appx. 849, 854 (11th Cir. 2013) (quoting Fraley for the proposition that "[i]n the absence of a judgment against the defendants, [the injured third party] has no rights under the [insurance] policy and thus could not sue the insurer directly”).
. The Georgia Court of Appeals has held notice requirements such as that contained in the Progressive policy are conditions precedent to coverage. See, e.g., Bates, 318 S.E.2d at 778 (holding that a policy requiring the insured to give the insurer notice of an accident "as soon as practicable” is a condition precedent to coverage); Richmond, 231 S.E.2d at 250 (holding that requiring notice "as soon as practicable” is to be treated as a valid condition precedent); Bituminous Cas. Corp. v. J.B. Forrest & Sons, Inc., 132 Ga.App. 714, 209 S.E.2d 6, 9 (1974) (same); Wolverine Ins. Co. v. Sorrough, 122 Ga.App. 556, 177 S.E.2d 819, 823 (1970). The Progressive policy, under the "YOUR DUTIES IN THE EVENT OF AN ACCIDENT, CLAIM, LOSS OR SUIT” section, required the insured to report any accident "as soon as practicable” by calling a toll-free number. (Compl., Ex. B.) This condition applied regardless of fault. m
. For instance, "[w]hen 'the terms of the policy or instructions stamped upon the face of a liability policy instruct the insured that it is to provide notice of suit, either to the independent insurance agent or the insurer, such delegation of apparent authority, notwithstanding the independent contractor relationship, will estop the insurer to deny any notice which was given to the independent agent under its instructions.” Se. Exp. Sys., Inc., 482 S.E.2d at 435 (emphasis added). Or "when an insurance agency collects premium payments from the insured and submits notices of claims to the insurer, the insurance agency could be considered a dual agent for the insured and for the insurer.” Yeomans & Assocs. Agency, Inc. v. Bowen Tree Surgeons, Inc., 274 Ga.App. 738, 618 S.E.2d 673, 680 (2005).
Reference
- Full Case Name
- PROGRESSIVE MOUNTAIN INSURANCE COMPANY v. Corey Dru ANDERSON, Southern Trust Insurance Company and Adam Duane Cason
- Status
- Published