BARNES, P. J., BOGGS and BRANCH, JJ.
Barnes, Presiding Judge.
This appeal addresses the trial court's order in a declaratory judgment as to coverage in a case involving the shooting death of a victim by a deputy sheriff. The trial court determined that coverage was limited to the liability limits of $1 million contained in an insurance policy issued to one of three counties that participated in a drug task force initially funded by a grant from the federal government. The plaintiff appeals this order. For the reasons that follow, we affirm.
Jonathan Paul Ayers was shot and killed by Billy Shane Harrison, who was a Stephens County deputy working for the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team ("the NCIS Team"), which covered Stephens County, Habersham County, and Rabun County. In her capacity as Ayers' surviving spouse and the administratrix of his estate, Abigail Marilyn Ayers sued Harrison and others in federal court under 42 U.S.C. §1983, but after the Eleventh United States Circuit Court of Appeals reversed in part and affirmed in part the district court's order on the parties' motions for summary judgment, the only claims remaining were §1983 excessive force claims and state assault, battery, and false arrest claims against Harrison. Ayers v. Harrison, 506 Fed.Appx. 883, 885 (11th Cir. 2013).
In its opinion affirming in part and reversing in part the district court's order on the defendants' motions for summary judgment in the underlying case, the Eleventh Circuit Court of Appeals summarized the facts then in the record as follows:
Viewed in the light most favorable to Plaintiff [Ayers], the record reveals the following facts. Although Officer Harrison concededly did not have probable cause to arrest Ayers at the time, Officer Harrison, while in plain clothes as an undercover officer, approached Ayers's car at a gas station to investigate possible drug activity. Only Ayers, as the driver, was in the car. Taking together Ayers's dying declaration and eyewitness testimony, Officer Harrison did not identify himself to Ayers as a police officer, but drew his gun, either waved the gun at Ayers or tapped the gun on the car window, and told Ayers to get out of the car. Thinking that he was being robbed, Ayers attempted to drive out of the gas station, but Officer Harrison fired two shots at Ayers's car. The second bullet pierced the windshield and struck Ayers in the abdomen, and he died shortly thereafter from the gunshot wound.
Ayers, 506 Fed.Appx. at 884.
The Association of County Commissioners of Georgia-Interlocal Risk Management Agency ("IRMA"), which had issued insurance policies to all three counties, defended Harrison in federal court under a reservation of rights letter which stated that the anticipated defense costs plus the requested damages may exceed its liability coverage of $1 million in the Stephens County policy.
After the Eleventh Circuit issued its opinion on the parties' summary judgment motions in February 2013, IRMA filed a petition for declaratory judgment against Harrison and Ayers in the Superior Court of Banks County in May 2013. IRMA asserted that it had been providing a defense for Harrison under the Stephens County policy under a reservation of rights, and further asserted that Ayers had contended that Harrison is also covered under insurance policies issued to Habersham and Rabun Counties and that the limits of all three policies may be stacked. IRMA thus sought a declaration that its maximum potential liability to indemnify Harrison in the civil rights suit was $1 million under the Stephens County policy, that Harrison was not covered under either the Habersham or the Rabun County policies, and that those policies could not be stacked to provide an additional $3 million in coverage.
Ayers removed the declaratory judgment to the Northern District of Georgia, but the district court granted IRMA's motion to remand the case to the superior court, finding that Ayers had failed to show federal jurisdiction over the matter. Assoc. County Commn. of Ga.-Interlocal Risk Mgmt. Agency v. Harrison, Civil Action No. 2:13-CV-00107-RWS (N.D.Ga., June 27, 2013).
Following discovery, the parties filed cross-motions for summary judgment. IRMA argued that its potential exposure should be capped at the limits of the liability policy issued to Stephens County because (1) Harrison was not covered under the Rabun County or Habersham County policies, and (2) even if he were covered, the policies contain anti-stacking provisions. Ayers argued that IRMA sought an improper advisory opinion because it had already denied coverage to the deputy under its Habersham and Rabun County policies and its duty to indemnify Harrison had not yet arisen absent a final judgment on Ayers' claim. She also argued that Harrison was covered under all three policies and that they do not contain anti-stacking provisions.
The trial court denied Ayers' motion for summary judgment and granted IRMA's motion, first finding that IRMA's reservation of rights letter was adequate to show its uncertainty as to whether the policies could be stacked, and thus IRMA's petition for declaratory judgment stated a claim. The court continued, "Turning to the question of coverage, the Court finds that, for all of the reasons set forth by [IRMA, its] total liability in the underlying case cannot exceed the $1 million limit of the Stephens County Policy."
Ayers contends on appeal that the trial court erred in granting summary judgment to IRMA and denying summary judgment to her, arguing that each county's policy "simultaneously and collectively provide coverage for the underlying occurrence." She asserts that (1) Harrison was insured under each policy because he was acting on behalf of all three counties, under the supervision of the NCIS Team commander, when the shooting occurred, and that (2) the policies do not contain anti-stacking language.
"On appeal from the grant of summary judgment this [c]ourt conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Citation omitted.) Donova ...