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Creech v. Onebeacon America Insurance Co.

United States District Court, S.D. Georgia, Savannah Division

June 28, 2017

DEBORAH CREECH, as surviving spouse of Guy Doyle Creech, Plaintiff,
v.
ONEBEACON AMERICA INSURANCE COMPANY, Defendant.

          ORDER

          J. RANDAL HALL, Chief Judge United States District Court Southern District of Georgia

         Presently 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.

         I. BACKGROUND

         On 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.)[1]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.[2] (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.[3] (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, ¶¶ 3-4.)

         On the 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.[4] (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").[5] (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.)

         Shortly 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.[6] (See Doc. 1.) On October 3, 2016, Defendant filed its present motion for summary judgment.

         II. SUMMARY JUDGMENT STANDARD

         Summary 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).

         “[The] 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.

         When 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, 249-50 (1986))).

         III. DISCUSSION [7]

         Under 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.)

         Because 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.[8] (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."[9](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.[10]

         Plaintiff, 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 ...


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