United States District Court, M.D. Georgia, Albany Division
J. ABRAMS, UNITED STATES DISTRICT COURT JUDGE
the Court is Plaintiff's Motion for Summary Judgment
(Doc. 29). For the following reasons, Plaintiff's Motion
Auto-Owners Insurance Co. (“Auto-Owners”) seeks
declaratory judgment that Defendant Bainbridge-Decatur County
Keep America Beautiful, Inc. (“KAB”) is not
entitled to coverage under the general commercial liability
policy Plaintiff issued to KAB (“the Policy”) for
an accident suffered by Defendant Barbara Sapp because KAB
failed to comply with the Policy's notice provision.
(Doc. 29-1, pp. 13-14).
commencement of this action, KAB was a non-profit corporation
in Decatur County, Georgia that oversaw the operation of
recycling centers. (Doc. 41-2, ¶ 1). The Policy had an
effective policy period of October 21, 2013 to October 24,
2014. Id. at ¶ 11. On May 15, 2014, Sapp fell,
sustaining both bodily injuries and property damage to her
vehicle, at the Climax, Georgia recycling center maintained
by KAB and Defendant Decatur County, Georgia. Id. at
November 13, 2015, Sapp filed a lawsuit in the Superior Court
of Decatur County, alleging that KAB and Decatur County,
Georgia are liable for the damages she incurred as a result
of her fall at the recycling center (“the underlying
lawsuit”). Id. at ¶ 10. KAB seeks a
defense and indemnity under the Policy for the claims
asserted by Sapp in the underlying lawsuit. Id. at
¶ 12. Decatur County does not seek a defense or
indemnity under the Policy for the claims asserted by Sapp in
the underlying lawsuit and denies that it has an interest,
financial or otherwise, with respect to the outcome of this
action. Id. at 13.
pertinent part, the Policy states that the insured party
“must see to it that [Plaintiff is] notified as soon as
practicable of an ‘occurrence' or an offense which
may result in a claim.” (Doc. 1-4, p. 23, Sec. IV,
¶ 2(a)). “Occurrence” is defined as
“an accident, including continuous or repeated exposure
to substantially the same general harmful conditions.”
Id. at p. 28, Sec. V, ¶ 14. The Policy also
states that “[n]o person or organization has a
right” to “join us as a party or otherwise bring
us into a ‘suit' asking for damages from an
insured” or “to sue us on this Coverage Part
unless all of its terms have been fully complied with.”
Id. at p. 23, Sec. IV, ¶ 3.
time of the incident, Suzanne Brandt served as the Executive
Director of KAB and was employed full time with Decatur
County as the Director of Environmental Services.
Id. at ¶ 4. According to Brandt, she was
informed of Sapp's fall within one day of the accident.
(Doc. 48, at 44:7-21; 45:20-46:4). Brandt does not recall if
she advised the KAB board about the accident, but she did not
notify Plaintiff because she did not believe Sapp intended to
file a claim against KAB. Id. at 50:4-8; 90:2-7.
Instead, Brandt spoke directly to Sapp. Brandt testified that
she communicated multiple times with Sapp regarding her
injuries and submitted requests to the Decatur County Board
of Commissioners to reimburse Sapp for her medical bills and
the damage to her vehicle. Id. at 51:16-52:16;
September 18, 2014, Sapp sent a demand letter to KAB
indicating her intent to sue. (Doc. 43-1, at p. 50). KAB gave
Plaintiff notice of Sapp's fall on September 22, 2014,
four months after the accident. (Doc. 41-2, ¶ 17).
3, 2015, Plaintiff commenced this action against Defendants.
(Doc. 1). Plaintiff moved for Summary Judgment on August 26,
2016. (Doc. 29). Three days later, on August 29, 2016,
Plaintiff moved for entry of default against Defendants Sapp
and KAB. (Docs. 30, 31). On October 14, 2016, Defendant
Decatur County entered a stipulation that it was not seeking
a defense or indemnification from Plaintiff and that it would
be bound by any and all judgments entered by the Court. (Doc.
38). On January 10, 2017, the Court denied Plaintiff's
Motions for Entry of Default (Docs. 30, 31) and ordered
Defendants Sapp and KAB to respond to Plaintiff's Motion
for Summary Judgment. (Doc. 39). Defendants Sapp and KAB
responded on January 31, 2017, and Plaintiff replied on
February 14, 2017 (Doc. 47). As such, Plaintiff's Motion
is now ripe for review. See M.D. Ga. L.R. 7.3.1(a).
Rule of Civil Procedure 56 allows a party to move for summary
judgment when the party contends no genuine issue of material
fact remains and the party is entitled to judgment as a
matter of law. “Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” Maddox v. Stephens, 727 F.3d 1109, 1118
(11th Cir. 2013). “A genuine issue of material fact
does not exist unless there is sufficient evidence favoring
the nonmoving party for a reasonable jury to return a verdict
in its favor.” Grimes v. Miami Dade Cnty., 552
F.App'x 902, 904 (11th Cir. 2014) citing Chapman v.
AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).
“An issue of fact is ‘material' if it is a
legal element of the claim under the applicable substantive
law which might affect the outcome of the case.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997) citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “It is ‘genuine' if
the record taken as a whole could lead a rational trier of
fact to find for the nonmoving party.” Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992)
citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
movant bears the initial burden of showing, by reference to
the record, that there is no genuine issue of material fact.
See Celotex, 477 U.S. at 323 (1986); Barreto v.
Davie Marketplace, LLC, 331 F.App'x 672, 673 (11th
Cir. 2009). The movant can meet this burden by presenting
evidence showing there is no genuine dispute of material
fact, or by demonstrating to the district court that the
nonmoving party has failed to present ...