United States District Court, S.D. Georgia, Savannah Division
DEBORAH CREECH, as surviving spouse of Guy Doyle Creech, Plaintiff,
ONEBEACON AMERICA INSURANCE COMPANY, Defendant.
RANDAL HALL, Chief Judge United States District Court
Southern District of Georgia
before the Court is Defendant's motion for summary
judgment. (Doc. 34.) The Clerk of Court gave Plaintiff timely
notice of the summary judgment motion and the summary
judgment rules, of the right to file affidavits or other
materials in opposition, and the consequences of default.
(Doc. 3 8.) Therefore, the notice requirements of
Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.
1985) (per curiam), have been satisfied. Plaintiff filed a
response and sur-reply brief, and Defendant filed a reply
brief as well as a response to Plaintiff's sur-reply
brief. (Docs. 43, 48, 50-1, 51.) The time for filing
materials in opposition has expired, and the motion is ripe
for consideration. Upon consideration of the record evidence,
relevant law, and the parties' respective briefs,
Defendant's motion is GRANTED.
September 17, 2012, Mr. Guy Doyle Creech approached Gate j
Four of the Georgia Ports Authority ("GPA")
terminal located in Garden City, Georgia, in a
tractor-trailer. (Doc. 43-1, at 3.)After having his
tractor-trailer weighed, Mr. Creech attempted to queue for
the interchange where vehicles are inspected prior to being
allowed to enter the port. (Id.) Prior to reaching
the interchange, however, he came alongside a tractor-trailer
being operated by Mr. Craig Watson. (Id.; Doc. 43-3,
at 20-21, 67-68.) Mr. Watson - believing that Mr. Creech was
attempting to cut him off and skip ahead in line - stopped
and exited his vehicle. (Doc. 43-3, at 20-21, 67-68.) Mr.
Watson approached Mr. Creech's vehicle, slapped the
driver-side door, and instructed Mr. Creech to wait his turn.
(Doc. 43-1, at 3; Doc. 43-3, at 20-21, 67-68.) Mr. Watson
then stepped onto the running board beside Mr. Creech's
door and punched him in the face through his open window
several times before jumping back down to the
pavement. (Doc. 43-1, at 3; Doc. 43-11, at 1.) Mr.
Creech then grabbed a wooden stick with a metal end-cap
(colloquially known as a "tire-knocker") from his
truck cabin and exited his vehicle. (Doc. 43-1, at 3.) Upon
exiting his vehicle, Mr. Creech struck Mr. Watson in the head
with the tire-knocker. (Doc. 43-1, at 3; Doc. 43-3, at
20-21.) Mr. Watson then punched Mr. Creech several times in
the head and/or face before returning to his vehicle and
entering the interchange. (Doc. 43-1, at 3; Doc. 43-3, at
26-27.) Mr. Creech then returned to his vehicle, pulled
behind Mr. Watson's vehicle as it was being
"interchanged, " and yelled for the interchange
clerk to detain Mr. Watson until law enforcement personnel
could be summoned; despite this request, however, Mr. Watson
was interchanged and allowed into the port. (Doc. 43-1, at
3-4.) Mr. Creech subsequently returned home. Later that same
night, however, Mr. Creech's condition deteriorated, and
he was transported and admitted to Memorial Health University
Medical Center in Savannah, Georgia, early on the morning of
September 18, 2012. (See Docs. 43-13, 43-14.) On
September 20, 2012, Mr. Creech suffered a stroke which
eventually led to his death on September 27, 2012.
(See Doc. 43-14; Doc. 43-15, at 25; Plaintiff's
Statement of Material Facts ("PSMF"), Doc. 44,
date of the altercation, the tractor-trailer operated by Mr.
Creech was owned by Mr. Gary T. Parker and j leased by Mr.
Parker to Evans Delivery Company, Inc. (Doc. 43-17, ¶
2.) Mr. Creech was not directly employed by Mr. Parker or
Evans Delivery Company, but rather had an oral agreement with
Mr. Parker that he would operate the tractor-trailer as an
independent contractor and would split the profits earned by
Mr. Creech's operation of the vehicle with Mr.
Parker. (Id. ¶¶ 3-4.) Prior to
the altercation, Defendant issued an Occupational Accident
[Insurance] Policy to Evans Delivery Company, namely Policy
No. 216-001-164, effective February 1, 2012 (the
"Policy"). (PSMF ¶ 15; see also Doc.
35-4.) Subject to the Policy's terms, conditions, and
exclusions, it provided, inter alia, an
accidental death benefit (including a survivor's benefit)
as well as an accident medical expense benefit. (PSMF ¶
17; see also Doc. 35-4, at 10-17.)
after the altercation, Plaintiff contacted Defendant seeking
recovery under the Policy. On or about August 26, 2014, a
third-party claims administrator, Brentwood Services
Administrators, Inc., sent Plaintiff a letter in which it
stated that no benefits were payable under the Policy and
further reserved Defendant's rights and coverage defenses
thereunder. (Doc. 43-16.) Plaintiff initiated the instant
action on December 9, 2015 in the State Court of Effingham
County, Georgia, Case No. ST15CV203RT, seeking to recover
benefits allegedly owed to Plaintiff under the Policy (i.e.,
breach of contract) as well as penalties pursuant to O.C.G.A.
§ 33-4-6 for Defendant's alleged bad faith refusal
to pay such benefits. (See Doc. 1-2.) On January 11,
2016, Defendant removed this action to this
Court. (See Doc. 1.) On October 3, 2016,
Defendant filed its present motion for summary judgment.
SUMMARY JUDGMENT STANDARD
judgment is appropriate only if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). The
Court shall grant summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to summary judgment as a matter of
law." Hickson Corp. v. N. Crossarm Co., 357
F.3d 1256, 1259, 1260 (11th Cir. 2004); Fed.R.Civ.P. 56(c).
The "purpose of summary judgment is to pierce the
pleadings and to assess the proof in order to see whether
there is a genuine need for trial." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (internal citation omitted).
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the I
[record before the court] which it believes demonstrate the
absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If - and only if - the movant carries its initial burden, the
non-movant may avoid summary judgment by demonstrating that
there is indeed a genuine issue as to the material facts of
its case. Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991). Facts are
"material" if they could affect the outcome of the
suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
of those material facts "is 'genuine' . . .
[only] if the evidence is such that a reasonable jury could
return a verdict for the non-moving party." Id.
ruling on the motion, the Court must view all the evidence in
the record in the light most favorable to the non-moving
party and resolve all factual disputes in the non-moving
party's favor. Matsushita, 475 U.S. at 587. The
Court must also avoid weighing conflicting evidence.
Anderson, 477 U.S. at 255; McKenzie v.
Davenport-Harris Funeral Home, 834 F.2d 930, 934 (11th
Cir. 1987). Nevertheless, the non-moving party's response
to the motion for summary judgment must consist of more than
conclusory allegations, and a mere "scintilla" of
evidence will not suffice. Walker v. Darby, 911 F.2d
1573, 1577 (11th Cir. 1990); Pepper v. Coates, 887
F.2d 1493, 1498 (11th Cir. 198 9). "The non-moving party
cannot create a genuine issue of material fact through
speculation, conjecture, or evidence that is 'merely
colorable' or 'not significantly
probative."' Bryant v. Dougherty Cty. Sch.
Sys., 382 F.App'x 914, 917 (11th Cir. 2010) (citing
Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.
2008; Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
Section I of the Policy ("Eligibility, Effective Date
and Termination Date"), two classes of persons are
eligible for coverage under the Policy, namely: (a)
"Owner-Operators;" and (b) "Contract
Drivers." (Doc. 35-4, at 4-5; see also PSMF
¶ 18.) To qualify as an Owner-Operator, an individual
"must lease to or from the Participating
Organization" (here, Evans Delivery Company, Inc.) and
must, inter alia: (i) have a valid and current
commercial driver's license; (ii) own or lease a power
unit; (iii) be responsible for maintenance of the power unit;
and (iv) be responsible for maintaining physical damage
insurance on the power unit. (Doc. 35-4, at 4; PSMF ¶
19.) To qualify as a Contract Driver, an individual must,
inter alia: (i) have a valid and current commercial
driver's license; (ii) "be authorized by an
Owner-Operator or motor carrier to operate a power unit owned
or leased by an Owner-Operator (The Contract Driver must
neither own nor lease the power unit)"; (iii) not be an
employee of the Participating Organization; and (iv) not be
an employee of the Owner-Operator. (Id.)
Mr. Creech did not own or lease the tractor-trailer he was
driving at the time of the incident, Mr. Creech is not an
Owner-Operator as defined by the Policy. (See
Doc. 43-17, ¶ 2 ("In 2012 [Mr. Parker] owned a 1996
Freightliner, which [he] | leased to Evans Delivery Company,
Inc. [Mr.] Creech drove this truck.").) Similarly,
because Mr. Parker did not have a commercial driver's
license and therefore does not qualify as an Owner-Operator
under the Policy, Mr. Creech does not fall within the
Contract Driver class as defined by the Policy; the Policy
requires that Contract Drivers be "authorized by an
Owner-Operator or motor carrier to operate a power-unit
owned or leased by an
Owner-Operator."(Doc. 35-4, at 4 (emphasis added);
see also Doc. 35-5, ¶ 11 (“[Mr. Parker]
did not and do [es] not have a commercial driver's
license.").) To find otherwise would require the Court
to rewrite the terms of the Policy and strip Defendant of its
authority to bargain for the terms of its insurance coverage
obligations - neither of which this Court is willing to do in
the absence of evidence showing this result is contrary to
the contracting parties' intent. Plaintiff has failed to
make such a showing. Accordingly, because Mr. Creech did not
satisfy the relevant criteria to be eligible for coverage
under the unambiguous terms of the Policy, Plaintiff is
afforded no coverage thereunder.
however, argues that Defendant has waived - or is otherwise
estopped from raising - any claim that Mr. Creech was not
eligible for coverage under the Policy. Specifically,
Plaintiff asserts that, because Defendant has not previously
asserted that Mr. Creech was not eligible for insurance under
the Policy and has failed to refund the Policy premiums paid
on behalf of Mr. Creech, Defendant has implicitly treated the
Policy as valid and enforceable and has waived any defense
thereto. (See Doc. 43, at 14-16.) In support,
Plaintiff cites a line of cases from Georgia for the
proposition that, where an insurance company asserts that an
insurance contract is void due to fraud in the inducement,
the insurer can be estopped from rescinding the policy
"if it did not act promptly, upon learning of the fraud,
to rescind the contract but instead treated it as valid and
enforceable." Lively v. Southern Heritage Ins.
Co., 568 S.E.2d 98, 100-01 (Ga.Ct.App. 2002) (citing
Columbian Nat. Life Ins. Co. v. Mulkey, 91 S.E. 106,
108 (Ga. 1916)); see also Florida Intern. Indem. Co. v.
Osgood, 503 S.E.2d 371, 373-74 ("If a party to a
contract seeks to avoid it on the ground of fraud or mistake,
he must, upon discovery of the facts, at once announce his
purpose and adhere to it. Otherwise, he can not avoid or
rescind such contract. One significant reason for this rule
in insurance cases is that leading the insured to believe the
validity of the policy is not ...