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Wiedeman v. Canal Insurance Co.

United States District Court, N.D. Georgia, Atlanta Division

June 2, 2017

GREGORY WIEDEMAN, Plaintiff,
v.
CANAL INSURANCE COMPANY, H&F TRANSFER, INC., AUTO-OWNERS INSURANCE COMPANY, WALTER PATRICK DORN, IV, WESCO INSURANCE COMPANY, and SALEM LEASING CORPORATION, d/b/a Salem Nationalease, Defendants.

          OPINION AND ORDER

          WILLIAM S. DIJFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Auto-Owners Insurance Company's (“Auto-Owners”) Motion for Summary Judgment [176].

         I. BACKGROUND

         A. Facts

         This action arises from an August 8, 2014, collision (the “Collision”) between Plaintiff Gregory Wiedeman (“Plaintiff”) and Defendant Walter Patrick Dorn, IV, an employee of Defendant H&F Transfer, Inc. (“H&F”). (Auto-Owners' Statement of Undisputed Facts [176.2] (“ASMF”) ¶ 1; Pl.'s Resp. [190.1] (“R-ASMF”) ¶ 1). Auto-Owners had issued an insurance policy to H&F (the “Policy”). (ASMF ¶ 4; R-ASMF ¶ 4). Plaintiff seeks to recover against Auto-Owners for alleged damages arising from the Collision. (ASMF ¶ 5; R-ASMF ¶ 5). Auto-Owners claims it did not receive prompt notice of the Collision, as required under the Policy, and thus there is no coverage under the Policy for the damages Plaintiff seeks. Plaintiff argues that Auto-Owners failed to timely raise its notice defense, and that Auto-Owners thus waived the defense.

         The Policy states “[y]ou and any person seeking coverage under this policy must notify us promptly as to how, when and where the accident happened.” (ASMF ¶ 6; R-ASMF ¶ 6). The Policy also states that “[n]o legal action may be brought against us until there has been full compliance with all terms of this policy.” (ASMF ¶ 7; R-ASMF ¶ 7). Auto-Owners claims it first received notice of the Collision on October 27, 2015. (ASMF ¶ 8). Plaintiff contends Auto-Owners received notice shortly after the Collision. Plaintiff presents evidence that, on August 18, 2014, ten days after the accident, attorney Daniel Floyd sent two separate letters to Auto-Owners' insureds, H&F and its driver Dorn, respectively, stating that he had been retained by Auto-Owners to represent them with respect to the potential claims asserted by Plaintiff. On the same day, Floyd sent a retention letter to a consultant, John Bethea, also stating that he had been retained by Auto-Owners to represent H&F and Dorn. In an October 2014 email to its insurance agency, H&F's president Tyler Fairey stated that “Auto-Owners has, as you know, been compiling info in the event of a lawsuit . . . .”[1] (Pl.'s Statement of Material Facts [190.1] (“PSMF”) ¶ 9-11). Auto-Owners claims Floyd's references to Auto-Owners in his letters were scrivener's errors, as Floyd stated in a sworn declaration. (Resp. to PSMF [207.1] (“R-PSMF”) ¶¶ 9-10). Auto-Owners claims Fairey's email “was simply repeating the erroneous reference to Auto-Owners that was inadvertently made by Floyd.” (R-PSMF ¶ 11).

         B. Procedural History

         On December 31, 2015, Auto-Owners filed its Initial Disclosures. The Initial Disclosures stated:

Provide a detailed factual basis for the defense or defenses and any counterclaims or crossclaims asserted by defendant in the responsive pleading.

         RESPONSE:

According to Co-Defendants H&F Transfer and Dorn, the accident at issue was caused by Plaintiff. Further, Auto-Owners did not insure any Co-Defendant. The policy issued by Auto-Owners which is the subject of this action was canceled prior to the accident. Auto-Owners has no liability to Plaintiff or Defendants for an accident which occurred outside of the policy period, and cannot be subject to direct action.
In further response, Auto-Owners states that discovery in this matter has not yet begun. Auto-Owners hereby reserves all of its defenses, and will fully explore the factual basis of all possible defenses raised when discovery commences. ([11] at 2-3). Auto-Owners did not supplement its Initial Disclosures.

         On March 11, 2016, Auto-Owners filed its Answer [39]. The Answer sets forth several defenses, including that (i) it did not provide insurance coverage to H&F on the date of the Collision; (ii) Plaintiff is not entitled to maintain a direct action against Auto-Owners; and (iii) it did not owe a duty to Plaintiff. (See Answer at 1-4). Auto-Owners did not include in its Answer any reference to the notice provision or a lack of notice regarding the Collision.

         On May 2, 2016, Auto-Owners filed its first Motion for Summary Judgment [61] (“First Motion for Summary Judgment”), arguing that it cancelled its Policy with H&F prior to the date of the Collision, and therefore it cannot be held liable for any of Plaintiff's damages. On December 21, 2016, the Court issued its Order [217] denying Auto-Owners' First Motion for Summary Judgment. The Court ...


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