United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DIJFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Auto-Owners Insurance
Company's (“Auto-Owners”) Motion for Summary
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.
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 . . .
.” (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).
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.
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
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.
( at 2-3). Auto-Owners did not supplement its Initial
March 11, 2016, Auto-Owners filed its Answer . 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.
2, 2016, Auto-Owners filed its first Motion for Summary
Judgment  (“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  denying
Auto-Owners' First Motion for Summary Judgment. The Court