Pepper v. Covington Specialty Insurance Co.
Pepper v. Covington Specialty Insurance Co.
Opinion of the Court
OPINION AND ORDER
This is a declaratory judgment action. It is before the Court on the Respondent Prime Rate Premium Finance Corporation, Inc.’s Motion for Summary Judgment [Doc. 41] and the Respondents Covington Specialty Insurance Company and RSUI Indemnity Company’s Motion for Summary Judgment [Doc. 43]. For the reasons stated below, Prime Rate’s Motion for Summary Judgment [Doc. 41] is GRANT
I. Background
On October 9, 2013, the Petitioner Khristopher Pepper was shot in the arm while visiting the gas station located at 4160 Fulton Industrial Boulevard, Atlanta, Georgia.
On June 3, 2013, having not received that month’s required payment, Prime Rate mailed a “10 Day Notice of Intent to Cancel” the Policy to ASI, stating that the Policy would be canceled effective June 18, 2013, for nonpayment unless payment was received before that date.
As stated above, Pepper was shot in the arm while at the gas station in October.
Pepper then filed the current action against Covington, RSUÍ, and Prime Rate on March 4, 2016, pursuant to the rights he received via the settlement. At issue is whether the Respondents Covington and RSUI were required to defend ASI, Florida Fuel, and Petroleum Realty in the Petitioner’s underlying lawsuit seeking compensation for personal injuries, and whether the Respondent Prime Rate is liable in any way for canceling the Policy. Pepper seeks a declaratory judgment stating that the cancellation of the Policy was defective and that it should have been in effect at the time of the shooting. As a result, Pepper also seeks an award from the Respondents in an amount equal to the Settlement Agreements.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.
III. Discussion
A. Wrongful Cancellation of the Policy
Put simply, the Petitioner argues that Prime Rate improperly canceled the Policy, the Policy should have been in effect at the time of the shooting, and that as a result one or all of the Respondents should have to pay Pepper for his injuries, as determined by the Settlement Agreements. There can be no doubt that the cancellation notice was inadequate under Georgia law. When premium finance companies, like Prime Rate, seek to exercise power of attorney to cancel an insurance policy, Georgia law imposes certain notice requirements they must comply with
It is this latter notice that has created the problem in this case. Georgia law not only requires that the Cancellation Notice be sent, but also specifies some of the information it must contain.
B. Respondents’ Potential Liability
After determining that a policy was wrongfully canceled, the question becomes which parties are liable, if any, for the improper cancellation. Many states have statutes similar to Georgia’s that require premium finance companies to follow certain procedures before canceling an insurance policy. Often, the language of these statutes is nearly identical to O.C.G.A. § 38-22-13.
Among these states, there have emerged two approaches to assigning liability for a failure to properly notify a policyholder. The first approach, as followed by New York, New Jersey, and Connecticut, places liability upon the insurance company.
Secondly, these courts fear that public policy would be undermined by placing such a potentially large burden on premi
This was also Georgia’s approach prior to 1995.
The receipt of the [Cancellation Notice] by the insurer shall create a conclusive presumption that the premium finance company has fully complied with all the requirements of this Code section, that the insurer is entitled to rely on such presumption, and that the cancellation of the insurance contract or contracts is concurred in and authorized by the insured. No liability of any nature whatsoever shall be imposed upon the insurer as a result of ... the failure of the insurance premium finance company to comply with any of the requirements of this Code section.32
The Eleventh Circuit, in a two page unpublished per curiam, opinion interpreted this language to mean that not only are insurance companies shielded from any tortious or contractual liability arising from a wrongful cancellation, but they are also relieved of any responsibilities under a policy that was wrongfully canceled.
The alternative approach some states have taken, including Illinois and Vermont, places liability upon the premium finance company.
: However, this option also seems to be foreclosed. Georgia has taken a strong stance against implied causes of action. In 2010, Georgia enacted O.C.G.A. § 9 — 2—8(a), which states that, “[n]o private right of action shall arise from any Act enacted after July 1, 2010, unless such right is expressly provided therein.”
IV, Conclusion
For the reasons stated above, the Respondent Prime Rate’s Motion for Summary Judgment [Doc. 41] is GRANTED, and the Respondents Covington and RSUI’s Motion for Summary Judgment [Doe. 43] is GRANTED.
SO ORDERED, this 22 day. of June, 2017. ■
. Respondents Covington and RSUI’s Statement of Material Facts ¶ 1 [hereinafter " Cov-ington SOF”J.
. The property was first leased to Mita-murshed Enterprise and Petroleum Realty DBA, which eventually became ASI.
. Id. at ¶ 3. While the Policy was originally given to Mitamurshed, a Policy Endorsement was eventually issued amending the declaration page to change the named insured from Mitamurshed to ASI. The Endorsement also added Petroleum Realty and Florida Fuel Partners, the owners of the gas station prop- , erty, as additional insureds under the Policy, ,Id. at ¶ 7.
. Id. at ¶ 4.
. Id. at ¶ 5,
. Id. at ¶ 9.
. Id. at ¶¶ 10-11.
. Id.
. Respondent Prime Rate's Statement of Material Facts V 20 [hereinafter ''Prime Rate SOF”].
. Id. at ¶ 21.'
; Id. at ¶ 23.
. Id. at ¶ 24.
. Id. at ¶ 25.
. Id. at ¶ 26.
. Id. at ¶ 28.
. Fed, R. Civ. P. 56(a).
. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Anderson v. Liberty Lobby, Inc,, 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
. O.C.G.A. § 33-22-13.
. Id. § (b).
. Id. § (c)(1).
. Id,
. IdL (emphasis added).
. See Prime Rate’s Resp. to Pepper's Mot. for Summ. J., June 19, 2013 Notice of Cancellation, Ex. H. [Doc. 41-8],
. See Precision Mech. Servs., Inc. v. T.J. Pfund Assocs., Inc., No. CV98-0416692, 2003 WL 21659672, at *1 (Conn. Super. Ct. June 19, 2003); Basic Image, Inc. v. Transamerica Ins. Fin. Corp., 241 A.D.2d 424, 426, 660 N.Y.S.2d 433 (1997); Kende Leasing Corp. v. A.I. Credit Corp., 217 N.J.Super. 101, 524 A.2d 1306 (App. Div. 1987).
. Precision Mech. Servs., 2003 WL 21659672, at *6 (internal quotations omitted).
. Id. at 427, 660 N.Y.S.2d 433 (quoting Home Mut. Ins. Co. v. Broadway Bank & Trust Co., 53 N.Y.2d 568, 577, 428 N.E.2d 842, 846, 444 N.Y.S.2d 436 (1981)).
. Basic Image, 241 A.D.2d at 426, 660 N.Y.S.2d at 435.
. See, e.g., Georgia Mut. Ins. Co. v. Gardner, 205 Ga.App. 458, 459, 422 S.E.2d 324 (1992) (affirming judgment against insurer where the premium finance company had failed to comply with notice requirements).
. O.C.G.A. § 33-22-13.
. Kolencik v. Stratford Ins. Co., 195 Fed. Appx. 855, 857 (11th Cir. 2006) (“regardless of whether [the insured] was in default at the time [the Defendant] received the notice, the premium finance statute insulates [the Defendant] from liability ... ”). Though not binding, the Eleventh Circuit’s opinion is persuasive given the lack of other authority addressing the issue.
. See Universal Fire & Cas. Ins. Co. v. Jabin, 16 F.3d 1465, 1468 (7th Cir. 1994); Carr v. Peerless Ins. Co., 168 Vt. 465, 473, 724 A.2d 454 (1998) ("... we conclude that we should infer the existence of a private right of action in favor of the insured and against the premium finance company.”).
. Id.
. See Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L,Ed.2d 26 (1975).
. Carr, 168 Vt. at 474, 724 A.2d 454.
. O.C.G.A. § 9 — 2—8(a).
. Anthony v. Am. Gen. Fin. Servs., Inc., 287 Ga. 448, 459, 697 S.E,2d 166 (2010) (finding that there was no implied civil cause of action arising from a criminal statute).
Reference
- Full Case Name
- Khristopher PEPPER v. COVINGTON SPECIALTY INSURANCE COMPANY
- Cited By
- 1 case
- Status
- Published